State v. Grant

2021 UT App 104

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GERALD RADCKIFF GRANT,
Appellant.

Opinion
No. 20190621-CA
Filed September 30, 2021

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161902811

Sarah J. Carlquist and Rich Hawkes, Attorneys
for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
concurred.

POHLMAN, Judge:

¶1 Under the pretense that he would be buying drugs,
Gerald Radckiff Grant got into an SUV with three men. The SUV
drove off, and when Grant exited the parked SUV minutes later,
all three men had fatal gunshot wounds. Grant, claiming he
acted in imperfect self-defense, pleaded guilty to three counts of
manslaughter for causing the deaths of the three men. In
addition to sentencing Grant to prison, the district court ordered
him to pay restitution.

¶2 Grant appeals the restitution order, asserting three errors.
First, he argues that the district court should have allocated fault
 State v. Grant

to the victims. Second, he argues that the court plainly erred in
ordering him to reimburse the victims’ parents for income they
lost in the aftermath of the killings. Third, he argues that the
court erred in deferring the determination of court-ordered
restitution to the Board of Pardons and Parole. We affirm in part,
reverse in part, and remand.

BACKGROUND 1

¶3 In the evening on February 18, 2016, police responded to a
disturbance and found an SUV parked in the middle of the road.
The police discovered three men with gunshot wounds in the
vehicle—Mateo, Marcus, and Roman. 2 Mateo was pronounced
dead on scene. Marcus and Roman, two brothers, were
transported to the hospital, but within days they both died from
their injuries.

¶4 Witnesses reported seeing a man exit the SUV and limp to
the side of the road while talking on a cell phone. They said that
a white car then arrived, the man got into the white car and it
drove away. When the police searched the SUV, they found one
.40 caliber casing and three 9mm casings. They recovered a .40
caliber Hi-Point pistol from under the front passenger seat. They
also located a Ruger 9mm handgun in the yard of a nearby
residence.

1. Because Grant pleaded guilty to three counts of manslaughter,
there was no trial and so we recite the facts consistent with the
district court’s factual findings made in support of its restitution
order. Like the parties, we also draw some background facts
from the original and amended informations, as well as from the
preliminary hearing transcript.

2. We use pseudonyms to protect the privacy of the victims and
witnesses in this case.

20190621-CA 2 2021 UT App 104
 State v. Grant

¶5 Further investigation led the police to arrest Grant, who
had gone to a hospital with a gunshot wound to his leg. The
police interviewed Ali, the man who had brought Grant to the
hospital. Ali said that he had arranged for Grant to buy
marijuana and that Ali and another man, Samuel, had driven
Grant in a white car to meet the sellers in the SUV. Ali reported
that after Grant got into the SUV, they lost sight of it and that
Grant called him a few minutes later saying he had been shot.
Ali and Samuel then picked up Grant.

¶6 A subsequent search of cell phone communications
showed that Grant had texted his girlfriend on February 18,
2016, describing “hit[ting] a lick on Cj” the night before. 3 Grant
also told his girlfriend that he would meet her later that night
but stated, “I might have to do some lick tonight but I’ll let u
know.” Then at 7:30 p.m. he sent her a text saying that he was
“leaving now.” That same day, Grant also texted Ali, saying “we
robbed Cj for a couple hundred” and asking Ali to set up
another “plan” for later that night. Ali then set up the marijuana
purchase with Mateo and forwarded the details to Grant via a
screenshot. Ali followed up with a text to Grant to “bring the
9ner we got work now.” 4

¶7 The State initially charged Grant with three counts of
aggravated murder, one count of aggravated robbery, and one
count of obstructing justice. After a four-day preliminary
hearing, the district court bound Grant over for trial on all
charges. As a result of plea negotiations, the State amended the

3. In his declaration of probable cause, a detective stated that a
“lick” and “work” are common terms used “in relation to” drug-
related robberies.

4. The detective also explained that “9ner” can be understood as
a 9mm gun, similar to the 9mm Ruger found near the scene.

20190621-CA 3 2021 UT App 104
 State v. Grant

information to charge Grant with three counts of manslaughter,
with each count carrying an enhanced penalty for Grant’s use of
a dangerous weapon, and it dismissed the remaining counts.
Grant pleaded guilty to the amended charges.

¶8 Grant’s statement in support of his plea explains that he
was pleading guilty to the elements of the crime as follows: “On
or about February 18, 2016, in Salt Lake County, Mr. Grant
caused the death of [Mateo], [Marcus,] and [Roman] while he
reasonably but incorrectly believed that his conduct was legally
justified or excused by self-defense. Mr. Grant used a firearm in
the commission of the offense.” Grant further acknowledged in
the plea statement that he “may be ordered to make restitution
to any victims of [his] crimes.”

¶9 A presentence investigation report was completed before
sentencing. In it, Grant provided his version of events.
According to Grant, his friend set up the deal to buy marijuana
from the three men, and Grant got in their SUV to weigh the
drugs. The SUV suddenly took off “fast” and the man in the
back seat “started to beat on” Grant, who fought back. The man
in the front passenger seat leaned over the console to go through
Grant’s pockets and pressed a pistol into Grant’s leg. Grant
pulled out his own gun in response and, as he chambered a
round, heard a shot and felt his leg become numb. Grant thought
he “was going to die.” He then shot the man next to him, making
the man “scream[] and jump[] in the back cargo area,” and Grant
then saw the driver signal to the front passenger by running “his
hand [a]cross his throat then point[ing] towards [Grant].” The
front passenger and Grant then struggled until Grant shot him.
The driver stopped the vehicle, and because Grant “didn’t know
what [the driver] was going to do,” Grant “reached over and
shot him too.” Grant claimed that he learned only later that the
front passenger’s gun had jammed, and Grant concluded, “You
bring a gun to a drug deal in case things go wrong, but you
never plan on them going wrong.”

20190621-CA 4 2021 UT App 104
 State v. Grant

¶10 At sentencing, the court ordered Grant to serve
consecutive prison terms totaling not less than six years but not
more than thirty years. The court also ordered Grant “to pay full
restitution.”

¶11 The State moved for restitution of at least $105,605.93. As
pecuniary damages resulting from Grant’s criminal activities, the
State asserted that Marcus and Roman’s parents should be
compensated for the brothers’ funeral expenses and income their
father lost spending time arranging and attending funeral
services. The State also claimed that Mateo’s parents sustained
pecuniary damages for funeral expenses, counseling expenses,
and the income they lost during the period of mourning. Finally,
the State claimed that the Utah Office of Recovery Services and
Medicaid (ORS/Medicaid) should be reimbursed for around
$67,000 in Medicaid benefits paid for the emergency health care
provided to Marcus and Roman. 5

¶12 Grant opposed the State’s motion for restitution. He
maintained that he acted in self-defense and argued that the
district court should deny restitution or lower any amount of
restitution by allocating fault to the deceased men. While
admitting that he got in the SUV to purchase marijuana from the
three men, Grant asserted that they intended to rob him and that
the evidence would show that “the reason for Grant’s shooting
of the three men was that [Roman] drove the car away to avoid
being followed by Grant’s acquaintances, that [Mateo] attacked
Grant, and finally, that [Marcus] trained his firearm on Grant
and shot him.” According to Grant, the conduct of the three men

5. The State also sought restitution for the property damage to
the SUV and for Marcus and Roman’s parents’ loss of financial
support that the brothers would have provided to them. The
district court decided against awarding restitution for these
claimed damages, and that decision is not at issue on appeal.

20190621-CA 5 2021 UT App 104
 State v. Grant

“broke the natural and continuous sequence in which the events
were intended to originally unfold” and “no one would have
been killed if the transaction had proceeded as planned.” Grant
further explained that the court would “have to determine from
the available evidence whether Grant’s recollection of what
occurred inside [Roman’s] vehicle” was consistent with the
physical evidence and that “[t]hat determination [would] have to
drive the allocation of fault.” 6 Grant urged the court to “find that
without the felonious actions of the deceased, their deaths would
not have occurred and, consequently, they should not be entitled
to any restitution.”

¶13 The district court conducted an evidentiary restitution
hearing. The court considered witness testimony and both
parties’ exhibits, as well as pleadings, memoranda, transcripts,
the presentence investigation report, and all other relevant
material on file. For example, the court noted that during Ali’s
police interview, he said Grant told him that Grant pulled his

6. Grant suggests on appeal that the factual basis of the plea
limited the findings that the district court could make in
determining restitution. But during oral arguments at the
restitution hearing, the judge asked, “It sounds like one or both
of you are going to ask me to go behind the plea and look at facts
behind the plea to prove fault causation and things of that
nature. And unless you stipulate to facts, the only place I can
find facts and evidence are in the exhibits or in the testimony.”
The prosecutor stated, “Correct,” and defense counsel said,
“Right.” In other words, both Grant and the State invited the
court to make factual findings beyond the plea. See generally State
v. Marquina, 2020 UT 66, ¶ 28, 478 P.3d 37 (“An error is invited
when counsel encourages the trial court to make an erroneous
ruling.” (cleaned up)). Thus, we reject any argument by Grant
that the facts on which the court could rely were limited to the
factual basis of the plea.

20190621-CA 6 2021 UT App 104
 State v. Grant

gun first. The court also considered the medical examiner’s
report, which provided evidence of the location and positions of
the victims when they were shot. The court deemed the medical
examiner’s report important to determining “who shot first” and
found that the report supported the State’s contention that Grant
“pulled his gun first and shot first before he was shot in the
knee.”

¶14 The court noted that the parties agreed the Ruger 9mm
pistol belonged to Grant, he had the Ruger with him on the night
in question, and the Ruger was used to shoot the three men. The
court also noted that the parties agreed that the .40 caliber Hi-
Point pistol belonged to Marcus and was used to shoot Grant in
the knee. The State’s firearms expert concluded that the Hi-Point
was fired once and then jammed immediately. The court also
considered the report from the State’s expert in shooting
reconstruction, in which the expert agreed that the Hi-Point fired
once and jammed and also concluded that “the sequence of the
shots delivered, or who fired the first shot in the car, cannot be
independently determined.” The court nevertheless deemed the
shooting reconstruction report important to determining what
occurred in the vehicle and found that it, along with other
evidence, contradicted Grant’s version of events.

¶15 The district court found that the evidence supported the
following sequence of events:

[Grant] pulled his gun first, [and Mateo] was shot
first while he was in the cargo area of the truck or
in the process of moving to the cargo area. [Grant]
was shot in the knee by [Marcus], [Grant] then
shoots [Marcus] and lastly shoots [Roman in the
head] while [Roman] was still in his seat belt in the
driver seat.

¶16 Additionally, the district court considered the State’s rule
404(b) evidence showing that Grant and others had planned and

20190621-CA 7 2021 UT App 104
 State v. Grant

carried out other drug robberies before the events in this case. 7 It
found that the prior aggravated robberies “show planning and
patterns very similar to the facts in this case.” The pattern was as
follows: Grant and others would contact dealers through a cell
phone to set up fake purchases of marijuana with plans to rob
the drug dealers. Grant would then go to the putative drug deals
with a handgun, display the handgun, and rob the drug dealers
of their drugs. The court found that Grant employed the same
pattern in this case: Grant and Ali planned the robbery; Ali
contacted the three men to set up the fake drug deal; Grant then
took a gun to the robbery, displayed the gun first, and shot the
three drug dealers.

¶17 In a detailed written order, the district court ruled that the
State satisfied its burden to establish that Grant’s criminal
conduct was the proximate cause of the injury and deaths of
Mateo, Marcus, and Roman. It concluded, moreover, that Grant’s
criminal conduct could be foreseen to cause injury to and the
deaths of the three men.

¶18 The court further ruled that Grant’s criminal conduct
proximately caused pecuniary damages and that Mateo, Marcus,
Roman, their parents, and ORS/Medicaid were crime victims
entitled to restitution. First, the court found that Marcus and
Roman’s parents sustained pecuniary damages in the total
amount of $18,536.44. That figure included the costs of their
sons’ funerals and the father’s lost income. Second, the court
found that Mateo’s parents sustained $7,930.70 in pecuniary

7. Rule 404(b) of the Utah Rules of Evidence prohibits the
admission of “[e]vidence of a crime, wrong, or other act . . . to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character,” but
the court may admit it for “another purpose,” such as to prove
intent, motive, or plan.

20190621-CA 8 2021 UT App 104
 State v. Grant

damages, which included funeral expenses, counseling expenses,
and lost income. Third, it found that Marcus and Roman
sustained serious injuries that resulted in death, and they
incurred $67,138.79 ($21,428.45 for Roman and $45,710.34 for
Marcus) in reasonable and necessary costs for ambulance and
hospital services. ORS/Medicaid paid these expenses because
Roman and Marcus were both Medicaid recipients. The court
thus found that ORS/Medicaid sustained pecuniary damages in
the total amount of $67,138.79.

¶19 On the issue of allocating fault, the district court rejected
Grant’s request to assign fault to Mateo, Marcus, and Roman. It
concluded that Grant had “failed to prove that the victims’ losses
were caused in whole or in part by the victims’ conduct.”
Instead, it assigned complete and total fault to Grant, finding
that Grant’s “conduct of planning and carrying out the
aggravated robbery and eventual shooting [of] the victims was
not broken or interrupted by any conduct by the victims” and
that, in contrast, “[Marcus’s] conduct, pulling out his gun, and
eventually shooting [Grant] in the leg was in self-defense and
defense of others.” The court explained that credible evidence
showed Grant “planned to commit an aggravated robbery of the
victims and carried out his plan.” Indeed, the court explained
that the rule 404(b) evidence “supports the State’s contention
that the events in this case were part of a plan and [Grant’s]
motive and intent to do a ‘lick’ and to ‘work’ by stealing the
marijuana from the victims without paying.”

¶20 The court acknowledged that Grant pleaded guilty to
three counts of manslaughter, reduced from first degree murder,
for causing the deaths of the three men while he “reasonably but
incorrectly believed that his conduct was legally justified or
excused by self-defense.” Yet the court was persuaded by the
evidence that “Grant was there with his pistol and as part of a
plan with the motive and intent to do a ‘lick’ and to commit an
aggravated robbery.” The court further decided that the

20190621-CA 9 2021 UT App 104
 State v. Grant

evidence, especially the shooting reconstruction report, showed
that Grant pulled his gun first in an attempt to rob the three
men, that Grant shot Mateo first while Mateo was attempting to
move away from Grant by climbing into the rear cargo area, that
Marcus subsequently shot Grant in his leg, and that Grant then
shot and killed Marcus and Roman. The court concluded that the
shooting reconstruction report “does not reliably show unlawful
causative conduct on the part of [Marcus], [Mateo], or [Roman]
and reaching another conclusion including that proposed by
[Grant] would be speculative.” Accordingly, the court assigned
no comparative fault to Mateo, Marcus, and Roman, and it
refused to reduce the pecuniary damages by some amount
attributable to their comparative fault.

¶21 The court then determined complete restitution. See Utah
Code Ann. § 77-38a-302(2)(a) (LexisNexis Supp. 2015)
(“‘Complete restitution’ means restitution necessary to
compensate a victim for all losses caused by the defendant.”).
For the specific pecuniary damages discussed above, supra ¶ 18,
the court decided that Grant owed complete restitution in the
total principal amounts of $7,930.70 in favor of Mateo’s parents,
$18,536.44 in favor of Marcus and Roman’s parents, and
$67,138.79 in favor of ORS/Medicaid.

¶22 Lastly, the district court decided that the Utah Board of
Pardons and Parole (the Board) would determine court-ordered
restitution. 8 See generally id. § 77-38a-302(2)(b) (“‘Court-ordered
restitution’ means the restitution the court having criminal
jurisdiction orders the defendant to pay as a part of the criminal
sentence . . . .”). It reasoned that because Grant’s sentence
included a commitment to the Utah State Prison, the Board—not

8. The parties dispute which version of the Utah Code the court
applied in making its decision regarding court-ordered
restitution. See infra note 15.

20190621-CA 10 2021 UT App 104
 State v. Grant

the court—would “be better able to assess [Grant’s] ability to
pay court-ordered restitution as [Grant] serves prison time and
at the time when payments will commence during parole, if
[Grant] is granted parole.” The court entered its restitution order
and judgment.

ISSUES AND STANDARDS OF REVIEW

¶23 Grant now appeals the restitution order, raising three
issues for our consideration. First, he argues that for purposes of
restitution, the district court should have allocated fault to the
deceased because their own conduct contributed to the cause of
their deaths. Second, Grant argues that the court plainly erred
when it awarded restitution to the victims’ parents for their own
lost income. Third, Grant argues that the court erred when it
declined to determine court-ordered restitution.

¶24 “We will not disturb a district court’s restitution
determination unless the court exceeds the authority prescribed
by law or abuses its discretion.” State v. Ogden, 2018 UT 8, ¶ 25,
416 P.3d 1132 (cleaned up). A district court abuses its discretion
“only if it can be said that no reasonable person would take the
view adopted by the trial court.” State v. Bird, 2017 UT App 147,
¶ 14, 405 P.3d 726 (cleaned up). “To the extent that the district
court made legal determinations in connection with its
restitution analysis, we review those legal determinations for
correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495
(cleaned up); see also Ogden, 2018 UT 8, ¶ 24 (“We review
questions of statutory interpretation for correctness.”); accord
State v. Hedgcock, 2019 UT App 93, ¶ 11, 443 P.3d 1288. We
review the district court’s findings of fact for clear error. See State
v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (“When a
defendant argues that the evidence was insufficient to support a
restitution order, the defendant must demonstrate that the clear
weight of the evidence contradicts the court’s ruling.” (cleaned
up)).

20190621-CA 11 2021 UT App 104
 State v. Grant

ANALYSIS

I. Allocation of Fault

¶25 Grant first contends that the district court erred “when it
refused to allocate any fault to the deceased in determining
complete restitution.” According to Grant, “all three of the
deceased willingly participated in a drug deal where they lost
their lives,” and “it simply cannot be the case that three drug
dealers . . . shot and killed in the course of a nefarious drug deal
bear no fault whatsoever in the cause of their own deaths.”
(Cleaned up.) The State responds that the court properly
allocated all fault to Grant because “[n]one of the victims’ actions
during the shooting contributed to their deaths.”

¶26 We begin with a discussion of the various legal principles
that intersect in this case. We then address Grant’s fault
arguments on appeal.

A

¶27 As a preliminary matter, we must address whether
comparative fault principles apply to restitution proceedings.
Before the district court, the parties agreed that they do. And on
appeal, the State urges us to assume that comparative fault
principles apply in this case based on that agreement. We accept
the parties’ agreement, and thus we assume, without deciding,
that comparative fault principles apply to restitution
proceedings. 9

9. We believe that resolving this legal question would be
difficult. In State v. Laycock, 2009 UT 53, 214 P.3d 104, a negligent
homicide case, the Utah Supreme Court held that “issues of
comparative negligence may be relevant in determining
restitution,” adding that “[a] trial judge cannot decline to
(continued…)

20190621-CA 12 2021 UT App 104
 State v. Grant

¶28 The Crime Victims Restitution Act (the Act) provides that
“[w]hen a defendant is convicted of criminal activity that has
resulted in pecuniary damages, in addition to any other sentence
it may impose, the court shall order that the defendant make
restitution to victims of crime as provided in [the Act], or for
conduct for which the defendant has agreed to make restitution
as part of a plea disposition.” Utah Code Ann. § 77-38a-302(1)
(LexisNexis Supp. 2015). 10 “‘Pecuniary damages,’” in turn,
“means all demonstrable economic injury, whether or not yet
incurred, which a person could recover in a civil action arising
out of the facts or events constituting the defendant’s criminal

(…continued)
consider evidence that a victim’s losses were caused, not by a
defendant, but by the victim’s own negligence, or indeed the
negligence of some other person in its determination of complete
restitution.” Id. ¶ 27 & n.4. Yet when the supreme court held in
Graves v. North Eastern Services, Inc., 2015 UT 28, 345 P.3d 619,
that “the statutory principle of apportionment for ‘fault’ extends
to cases involving intentional torts,” id. ¶ 75, it suggested that it
might be “impossible to conceptualize the notion of
apportioning liability to the ‘negligence’ of a victim of an
intentional tort—in not taking adequate measures to protect
herself from an assault,” stating that it would “expect a jury to
reject this notion out of hand,” id. ¶ 71 n.10 (cleaned up). The
court further suggested that this “notion of apportionment may
be a true ‘absurdity’” even if it is compatible with the statutory
text of the Liability Reform Act. Id. This same conceptual
problem might present itself when, as here, considering the
negligence or fault of a victim of an intentional criminal act. In
any event, we need not and do not resolve the matter in this
case.

10. The parties agree that the 2015 version of the Utah Code
applies to this issue.

20190621-CA 13 2021 UT App 104
 State v. Grant

activities and includes the fair market value of property taken,
destroyed, broken, or otherwise harmed, and losses including
lost earnings and medical expenses, but excludes punitive or
exemplary damages and pain and suffering.” Id. § 77-38a-102(6).
“‘Criminal activities’ means any offense of which the defendant
is convicted or any other criminal conduct for which the
defendant admits responsibility to the sentencing court with or
without an admission of committing the criminal conduct.” Id.
§ 77-38a-102(2). And “[f]or the purpose of determining
restitution for an offense, the offense shall include any criminal
conduct admitted by the defendant to the sentencing court or to
which the defendant agrees to pay restitution.” Id. § 77-38a-
302(5)(a).

¶29 In assessing whether there is a causal connection between
the crime and the pecuniary damages required by the Act, “the
same proximate cause standard ordinarily applied in civil cases”
is applied in the restitution context. State v. Oliver, 2018 UT App
101, ¶ 20, 427 P.3d 495 (cleaned up); see also State v. Ogden, 2018
UT 8, ¶ 48, 416 P.3d 1132. And for proximate cause to exist, two
elements must be proven: “First, but-for causation must be
present; indeed, proximate cause is that cause which, in a natural
and continuous sequence, unbroken by any new cause,
produced the injury, and without which the injury would not
have occurred.” Oliver, 2018 UT App 101, ¶ 21 (cleaned up).
“Second, the harm must be foreseeable.” Id. “Proximate cause
requires some greater level of connection between the act and
the injury than mere ‘but for’ causation.” Id. (cleaned up); see also
Raab v. Utah Ry. Co., 2009 UT 61, ¶ 23, 221 P.3d 219. The “focus[]”
of the proximate cause inquiry is “whether liability should attach
to a particular cause in fact.” Raab, 2009 UT 61, ¶ 22.

¶30 The Liability Reform Act delineates the apportionment of
comparative fault in civil actions. See Biesele v. Mattena, 2019 UT
30, ¶ 14, 449 P.3d 1; Graves v. North E. Services, Inc., 2015 UT 28,
¶¶ 58–59, 345 P.3d 619; see also Utah Code Ann. §§ 78B-5-817

20190621-CA 14 2021 UT App 104
 State v. Grant

to -823 (LexisNexis 2018). It directs that the “fact finder may, and
when requested by a party shall, allocate the percentage or
proportion of fault attributable to each person seeking recovery,
to each defendant, to any person immune from suit, and to any
other [non-parties] . . . for whom there is a factual and legal basis
to allocate fault.” Utah Code Ann. § 78B-5-818(4)(a). “‘Fault’” in
this context “means any actionable breach of legal duty, act, or
omission proximately causing or contributing to injury or
damages sustained by a person seeking recovery,” including,
among other things, “negligence in all its degrees, comparative
negligence, assumption of risk, [and] strict liability.” Id. § 78B-5-
817(2). This scheme allows an injured party to recover damages
from “any defendant whose fault exceeds his own.” Hale v.
Beckstead, 2005 UT 24, ¶ 20, 116 P.3d 263; see also Utah Code Ann.
§ 78B-5-818(2) (“A person seeking recovery may recover from
any defendant . . . whose fault . . . exceeds the fault of the person
seeking recovery . . . .”). And the amount an injured party may
recover “is proportionate to the percentage of fault attributed to
the defendant.” Hale, 2005 UT 24, ¶ 20; see also Utah Code Ann.
§ 78B-5-820(1) (stating that “the maximum amount for which a
defendant may be liable to any person seeking recovery is that
percentage or proportion of the damages equivalent to the
percentage or proportion of fault attributed to that defendant”).
The defendant bears the burden to prove that the person seeking
recovery was at fault. See Foster v. Steed, 459 P.2d 1021, 1021
(Utah 1969).

¶31 To give our analysis additional context, we next set forth
the self-defense principles that underlie the factual backdrop of
this case. “Perfect self-defense is a complete defense to any
crime” and “is available to one who reasonably believed that
force was necessary to defend against unlawful force.” State v.
Lee, 2014 UT App 4, ¶ 36, 318 P.3d 1164 (Voros, J., concurring).
Thus, a person generally “is justified in using force intended or
likely to cause death or serious bodily injury only if the person
reasonably believes that force is necessary to prevent death or

20190621-CA 15 2021 UT App 104
 State v. Grant

serious bodily injury to the person or a third person as a result of
another person’s imminent use of unlawful force, or to prevent
the commission of a forcible felony.” Utah Code Ann.
§ 76-2-402(1)(b) (LexisNexis 2017). But a person is not justified in
using such force if the person “is attempting to commit,
committing, or fleeing after the commission or attempted
commission of a felony.” Id. § 76-2-402(2)(a)(ii).

¶32 Imperfect self-defense “is a partial defense,” which
reduces a charge of murder to manslaughter. Lee, 2014 UT App
4, ¶ 37 (Voros, J., concurring); see also State v. Bonds, 2019 UT App
156, ¶ 44, 450 P.3d 120, cert. granted, 466 P.3d 1072 (Utah 2020).
“It is available to one who reasonably but incorrectly believed
that his use of lethal force was legally justified . . . .” Lee, 2014 UT
App 4, ¶ 37 (Voros, J., concurring); see also Utah Code Ann.
§ 76-5-203(4) (LexisNexis 2017). In other words, if, under the
facts as the defendant believed them to be, the defendant
“reasonably but incorrectly believed his actions were legally
justifiable, he acted in imperfect self-defense.” Lee, 2014 UT App
4, ¶ 38 (Voros, J., concurring).

¶33 As Grant views the facts of this case, he acted in either
perfect or imperfect self-defense. He also recognizes that perfect
self-defense may not have been available to him because in
trying to purchase drugs, he may have been in the midst of
committing a felony, depending on the type and quantity of the
drug involved. This acknowledgment accords with his statement
in support of the plea that he “caused the death of [Mateo],
[Marcus,] and [Roman] while he reasonably but incorrectly
believed that his conduct was legally justified or excused by self-
defense.”

¶34 For restitution purposes, however, the district court did
not share Grant’s view of the facts. Rather, it found that other

20190621-CA 16 2021 UT App 104
 State v. Grant

evidence contradicted Grant’s claims, specifically that Grant
planned to rob the three men, 11 that Grant pulled his gun first,
and that it was Marcus who acted in self-defense and defense of
others. And based on those findings, the court rejected Grant’s
contention that the three men proximately caused or contributed
to their own deaths.

B

¶35 Grant argues on appeal that the district court erred when
it refused to allocate fault to Mateo, Marcus, and Roman.
Though he does not directly challenge the court’s underlying
factual findings, Grant asserts that he should not be 100% at fault
when the court’s factual findings are that “the deceased
arranged, participated in, and brought at least one dangerous
weapon to an illegal drug deal.” He also claims that the court’s
decision was “based on the misunderstanding that Grant’s plea
rendered him 100% at fault as a matter of law.” The parties agree
that apportionment of fault constitutes a question of fact that this
court reviews for clear error. We address the comparative fault
of each of the deceased individually. We then address Grant’s
argument about the district court’s consideration of his plea.

1

¶36 Grant asserts that the “clear weight of the evidence shows
that [Mateo] bore some level [of] fault for his death, as well as in
the deaths of [Roman] and [Marcus].” “Even though the district
court found Grant and [Ali] had arranged a ‘fake drug deal’ as a
pretext to commit a drug robbery,” Grant argues, “that fact does
not absolve [Mateo] of fault because he also [undisputedly]
arranged the drug deal that led to his death.”

11. Grant maintains that he did not arrange the drug deal as a
pretext to commit a drug robbery.

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 State v. Grant

¶37 As discussed, to allocate fault to Mateo, Grant had to
show that Mateo’s conduct proximately caused or contributed to
his own death or the deaths of Marcus and Roman. See Ogden,
2018 UT 8, ¶ 48. In other words, Grant had to prove that Mateo’s
conduct produced the harm or set in motion events that
produced the harm in a natural and continuous sequence. See
Oliver, 2018 UT App 101, ¶ 21. Further, Grant had to prove that
Mateo’s death was foreseeable. See id. Grant has not met his
burden.

¶38 Grant argues that because Mateo “arranged the drug
deal” with Grant, he must necessarily bear some fault for his
own death. Grant asserts that “it simply cannot be the case that”
a drug dealer, “killed in the course of the drug-deal in which
[he] willingly participated,” is not at least partially at fault for
being shot and killed in a robbery attempt. That is the extent of
Grant’s proximate cause analysis. Grant thus asks us to conclude
that merely because Mateo arranged a drug deal, he is at least
partially responsible for his own death and that the district court
was obligated to apportion some fault to him. But Grant neglects
to analyze the issue under the proximate cause standard, and he
cites no case law to support the proposition that some fault must
be apportioned to Mateo under these circumstances. 12

12. In support of his position, Grant cites Cabrera v. Hirth, 779
N.Y.S.2d 471 (App. Div. 2004), and Hutcherson v. City of Phoenix,
961 P.2d 449 (Ariz. 1998) (en banc), overruled on other grounds by
State v. Fischer, 392 P.3d 488 (Ariz. 2017). But these cases stand
only for the proposition that fault was appropriately
apportioned to a third party in cases involving murder and
assault. See Cabrera, 779 N.Y.S.2d at 472; Hutcherson, 961 P.2d at
451–54. They do not establish that a victim must be apportioned
fault in the victim’s own death, even when the victim willingly
participated in an illegal transaction.

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 State v. Grant

¶39 Moreover, the court’s decision that Grant bore all fault for
the deceased’s deaths is supported by the evidence: text
messages showed that Grant was planning to “do some lick,”
i.e., a drug robbery; the rule 404(b) evidence showed that Grant
had a pattern of planning and carrying out similar drug
robberies, see supra ¶ 16; and Ali told police that Grant admitted
to pulling his gun first, see supra ¶ 13. The medical examiner’s
report and the shooting reconstruction report also undermined
Grant’s version of events. We thus disagree that the clear weight
of the evidence demanded apportioning fault to Mateo. To the
contrary, the court found that the “forensic report does not
reliably show unlawful causative conduct on the part of
[Marcus], [Mateo], or [Roman] and reaching another conclusion
including that proposed by [Grant] would be speculative.” We
therefore will not reverse the district court’s decision declining
to allocate any fault to Mateo.

2

¶40 Likewise, Grant asserts that the clear weight of the
evidence shows that Marcus “bore some level [of] fault for his
death, as well as for the deaths of [Mateo] and [Roman].” In
support, Grant stresses that Marcus brought the .40 caliber Hi-
Point pistol and used it in the drug deal. Grant also asserts that
he shot Marcus “as a direct result of [Marcus] shooting him” and
that he “could not have known that [Marcus’s] pistol jammed
after firing the single shot that struck Grant in the leg.”

¶41 Again, Grant has not analyzed this issue under the
proximate cause standard, and he cites no authority to support
his argument that some fault must be apportioned to Marcus.
Although Marcus brought a pistol to the drug deal, the district
court found that Grant pulled his gun first and shot Mateo, who
was moving away from Grant and into the cargo area, and that
Marcus pulled his gun and shot Grant only after Grant shot
Mateo. These findings were supported by evidence, and because

20190621-CA 19 2021 UT App 104
 State v. Grant

evidence showed that Marcus acted only in response to Grant’s
shooting, we cannot say that the district court erred in refusing
to apportion fault to Marcus.

3

¶42 Grant asserts that the “clear weight of the evidence shows
that [Roman] bore some level of fault for his death, as well as for
the deaths of [Mateo] and [Marcus],” based on the undisputed
fact “that [Roman] drove himself, [Marcus], and [Mateo] to the
drug deal.” Grant further points to evidence that “[Roman] was
a willing participant in a drug deal, . . . drug paraphernalia was
found near the driver’s seat, and he brought brass knuckles to
the drug deal” after telling a friend that he intended to “roll up
with [Mateo]” and “bust a lick.”

¶43 As with Mateo, Grant has not shown that Roman’s mere
agreement to participate in a drug deal contributed to or
proximately caused Roman’s own death. Grant’s suggestion that
Roman’s act of “absconding from the pre-arranged drug-deal
location . . . likely contributed, at least in part,” to the deaths
rests on speculation. Further, the evidence showed that Grant
shot Roman in the back of the head while Roman remained in
the driver seat. And although brass knuckles were found under
the driver’s seat, Grant has not shown that he was even aware of
the brass knuckles or that they played a role in the shootings.
Finally, as the State points out, the district court did not appear
to credit the friend’s testimony that Roman planned to “[b]ust a
lick.” Rather, the court found that Grant was the one who
planned and carried out a robbery. Under these circumstances,
we will not set aside the district court’s refusal to apportion fault
to Roman.

4

¶44 Grant next challenges the court’s allocation finding to the
extent it appears to be “based on the misunderstanding that

20190621-CA 20 2021 UT App 104
 State v. Grant

Grant’s plea rendered him 100% at fault as a matter of law.” In
other words, Grant argues that “the district court appears to
have concluded that by pleading guilty to manslaughter, no fault
could be apportioned to the victims as a matter of law.” In so
arguing, he contends that the court committed legal error by
“allocat[ing] all fault to Grant on the basis of his plea alone.”

¶45 We disagree with this underlying premise, and we
instead agree with the State that the district court “relied on the
totality of the evidence, not solely on [Grant’s] pleas, when it
allocated fault.” Granted, the court made statements at the
restitution hearing expressing doubt about whether it needed to
“relitigate all the issues related to fault” when “[s]omebody in
this room has already accepted fault for something.” Yet the
court’s detailed findings of fact and conclusions of law show that
the court based its decision on the totality of the evidence
submitted to the court and not just the fact of Grant’s plea.
Indeed, the court stated that it reviewed “all relevant parts of the
record including the parties’ pleadings, memoranda, exhibits,
transcripts, the testimony of witnesses and crime victims, the
presentence report, and all other relevant materials on file.”
Because the court’s decision did not rest on the basis of Grant’s
plea alone, we do not agree with Grant that the court decided the
issue as a matter of law.

¶46 In summary, we conclude that the court’s decision to
allocate all fault to Grant is supported by evidence and did not
constitute an abuse of discretion.

II. The Victims’ Parents’ Lost Income

¶47 Next, Grant argues that the district court erred when it
awarded complete restitution to the victims’ parents for their
own lost income. Because there are no allegations that Grant’s
criminal activities resulted in bodily injury to the deceased’s
parents, Grant asserts that their lost income cannot be recovered
under the applicable statute. Grant recognizes that this issue is

20190621-CA 21 2021 UT App 104
 State v. Grant

unpreserved, and he therefore asks us to review it under the
plain error exception to the preservation rule.

¶48 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the district court; and (iii) the error is harmful.” State v. Hedgcock,
2019 UT App 93, ¶ 11, 443 P.3d 1288 (cleaned up). “For an error
to be obvious the law governing the error must be clear or
plainly settled at the time the alleged error was made.” Id. ¶ 15
(cleaned up). “If any one of [the three] requirements is not met,
plain error is not established.” State v. Johnson, 2017 UT 76, ¶ 20,
416 P.3d 443 (cleaned up).

¶49 Under the applicable statute, the court, in determining
complete restitution, could consider “the income lost by the
victim as a result of the offense if the offense resulted in bodily
injury to a victim.” Utah Code Ann. § 77-38a-302(5)(b)(iv)
(LexisNexis Supp. 2015); 13 see also id. § 77-38a-102(14)(a)
(“‘Victim’ means any person or entity, including the Utah Office
of Victims of Crime, who the court determines has suffered
pecuniary damages as a result of the defendant’s criminal
activities.”). The supreme court has interpreted this statute to
mean that “lost income is available as a component of complete
restitution only ‘if the offense’ in question ‘resulted in bodily
injury to a victim.’” State v. Wadsworth, 2017 UT 20, ¶ 4, 393 P.3d
338 (quoting Utah Code § 77-38a-302(5)(b)(iv) (2012)). For
instance, in Wadsworth, the defendant’s sex “crimes led to the
victim’s depression, which required counseling and impacted
her ability to work,” id. ¶ 2, but the supreme court held that
because “there was no allegation that [the defendant’s] offense
‘resulted in bodily injury’ to the victim,” complete restitution
could not include the victim’s lost income, id. ¶ 11.

13. The parties agree that the 2015 version of the Utah Code
applies to this issue.

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 State v. Grant

¶50 Grant contends that like the victim in Wadsworth, “the
deceased’s parents constitute . . . victims . . . , but none of them
suffered bodily injury as a result of Grant’s conduct.” Rather, the
deceased’s parents suffered only “emotional injury” and
therefore could not recover lost income. And because Wadsworth
was issued before the district court’s restitution decision in this
case, Grant argues, “it was obvious that lost income was not
recoverable.”

¶51 The State, in contrast, defends the district court’s decision,
arguing that the statute “does not limit lost-wages restitution to
the victim who suffered bodily injury.” According to the State,
the applicable statute requires “that ‘a victim’ suffer bodily
injury as a result of the offense.” (Quoting the 2015 version of
Utah Code section 77-38a-302(5)(b)(iv).) And because Grant’s
offenses resulted in bodily injury—death—to Mateo, Roman,
and Marcus (all victims), the statute’s requirement was satisfied
and the lost income that the deceased’s parents incurred, as a
result of Grant’s offenses, could be included as restitution. The
State also distinguishes Wadsworth, pointing out that the
defendant’s crimes there did not cause bodily injury to any
victim. The State further asserts that Wadsworth did not resolve
“whether the restitution victim herself must suffer bodily injury
to qualify for lost-wages restitution.”

¶52 We conclude that any error in including the lost income of
the deceased’s parents in complete restitution would not have
been obvious to the district court. First, the controlling statute’s
plain language lends some support to each side’s position. See
State v. Laycock, 2009 UT 53, ¶ 19, 214 P.3d 104 (“When
examining a statute, we first look to its plain language.”). It
states that the court could consider “the income lost by the victim
as a result of the offense if the offense resulted in bodily injury to
a victim.” Utah Code Ann. § 77-38a-302(5)(b)(iv) (emphases
added). The use of the word “the” before the word “victim”
could be read as “a word of limitation as opposed to indefinite

20190621-CA 23 2021 UT App 104
 State v. Grant

or generalizing force [of] ‘a’ or ‘an.’” See State v. Gonzales, 2000
UT App 136, ¶ 28, 2 P.3d 954 (Davis, J., concurring in the result)
(cleaned up). Thus, “the income lost by the victim” could be read
to refer to the specific victim who suffered bodily injury, thereby
limiting lost-income restitution to that victim. See Utah Code
Ann. § 77-38a-302(5)(b)(iv) (emphasis added). On the other hand,
the statute also refers to “bodily injury to a victim,” id. (emphasis
added), and because the “indefinite article ‘a’ can mean ‘any,’”
Graphic Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 24
(cleaned up), petition for cert. filed, Aug. 20, 2021 (No. 20210573),
the statute could be read to make lost-income restitution
available when any victim suffered bodily injury, see Utah Code
Ann. § 77-38a-302(5)(b)(iv). The statute’s language therefore is
“not sufficiently clear” to resolve the question of whether the
restitution victims themselves must suffer bodily injury to
become eligible for lost-income restitution. See State v. Dean, 2004
UT 63, ¶¶ 18, 21, 95 P.3d 276 (stating that “the law in this area
was not sufficiently clear or plainly settled” when determining
that an error was not obvious).

¶53 Second, Wadsworth does not address the question before
us. Rather, the supreme court in Wadsworth focused on the “if
clause” of the statute, concluding that it “sets an exclusive limit
on the availability of restitution for lost income.” 2017 UT 20,
¶¶ 2, 4. Indeed, Wadsworth held “that lost income is available as
a component of complete restitution only ‘if the offense’ in
question ‘resulted in bodily injury to a victim.’” Id. ¶ 4 (quoting
Utah Code § 77-38a-302(5)(b)(iv) (2012)). As a result, Wadsworth
did not “plainly settle[]” the question in this case. See Hedgcock,
2019 UT App 93, ¶ 15 (cleaned up).

¶54 For these reasons, the controlling statute and Wadsworth
did not provide “clear or plainly settled” law to guide the
district court at the time the alleged error was made. See id.
(cleaned up); see also Dean, 2004 UT 63, ¶ 21. We therefore cannot
say that the alleged error should have been obvious to the

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 State v. Grant

district court. See Dean, 2004 UT 63, ¶ 16. Accordingly, Grant’s
plain error claim regarding the victims’ parents’ lost income is
unavailing. 14

III. Court-ordered Restitution

¶55 Finally, Grant contends that the district court erred “when
it declined to determine court-ordered restitution.” He argues
that because the relevant statutes and case law required the
district court to determine both complete restitution and court-
ordered restitution, the court erroneously deferred the issue of
court-ordered restitution to the Board. In response, the State
asserts that the court’s course of action was proper because,
despite use of the term “court,” “both the district court and the
Board have the authority to order court-ordered restitution.” In
the State’s view, “if a district court does not determine court-
ordered restitution, the Board may.” We agree with Grant.

¶56 Complete restitution and court-ordered restitution are
distinct concepts. “Complete restitution is restitution necessary
to compensate a victim for all losses caused by the defendant,
taking into account all relevant facts,” including those specified
in Utah Code section 77-38a-302(5)(b). State v. Mooers, 2017 UT
36, ¶ 9, 424 P.3d 1 (cleaned up). In contrast, court-ordered
restitution “is the restitution the court having criminal
jurisdiction orders the defendant to pay as a part of the criminal
sentence.” Id. ¶ 10 (cleaned up). “Unlike complete restitution,
court-ordered restitution may be adjusted to take the
defendant’s ability to pay into account.” State v. Laycock, 2009 UT
53, ¶ 30, 214 P.3d 104; see also Utah Code Ann. § 77-38a-302(5)(c)
(LexisNexis 2017) (listing the factors that a court shall consider in

14. Because we conclude that Grant has not shown that the
alleged error was obvious, we have no occasion to decide the
correct reading of the applicable statute.

20190621-CA 25 2021 UT App 104
 State v. Grant

“determining the monetary sum and other conditions for court-
ordered restitution”); State v. Ogden, 2018 UT 8, ¶ 28, 416 P.3d
1132 (explaining that court-ordered restitution takes into
consideration “the defendant’s financial resources, other
obligations, the rehabilitative effect, and other circumstances”
(cleaned up)). “In other words, court-ordered restitution is a
subset of complete restitution that, among other things, takes
into account the defendant’s circumstances.” Mooers, 2017 UT 36,
¶ 11 (cleaned up).

¶57 Utah Code section 77-38a-302 states that in determining
restitution, “the court shall determine complete restitution and
court-ordered restitution.” Utah Code Ann. § 77-38a-302(2)
(LexisNexis 2017). 15 This plain language of Utah Code section 77-
38a-302(2)(a)–(b) is “a clear directive that district courts are to
make two separate restitution determinations, one for complete
restitution and a second for court-ordered restitution.” Laycock,

15. The parties dispute which version of the Utah Code the
district court applied in making its decision to defer the court-
ordered restitution determination. Grant asserts that the 2015
version applied whereas the State asserts that it was the 2017
version. We cite the 2017 version because the relevant portion of
the court’s decision cited 2017 as the year of the applicable
statutes. But we also conclude that any differences between the
two versions are immaterial. Most notably, Utah Code section
77-38a-302(2)’s language, which contains a “clear directive”
according to our supreme court, see State v. Laycock, 2009 UT 53,
¶ 20, 214 P.3d 104, remained the same in 2015 and 2017, compare
Utah Code Ann. § 77-38a-302(2) (LexisNexis Supp. 2015), with id.
(2017). And the parties themselves agree that the result in this
case is the same under both versions. As discussed, infra ¶ 60,
even if we entertain the State’s argument that certain 2017
provisions vindicate its position regarding the Board’s authority,
we still conclude that the State’s argument is unavailing.

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 State v. Grant

2009 UT 53, ¶ 20; see also Ogden, 2018 UT 8, ¶ 26 (same); Mooers,
2017 UT 36, ¶ 12 (emphasizing that “courts must make two
separate determinations”); State v. Hedgcock, 2019 UT App 93,
¶ 13, 443 P.3d 1288 (explaining that failing to make the two
separate determinations, “or even merging them into one order,
is error” (cleaned up)).

¶58 We agree with Grant that the district court did not
comply with this directive. While it did determine the amounts
of complete restitution that Grant would potentially be required
to pay to the deceased’s parents and ORS/Medicaid, it declined
to determine court-ordered restitution—the amount Grant
would actually be required to pay—and “defer[red] the issue of
court-ordered restitution to the [Board].” The court decided that
because Grant was being committed to prison, “[t]he [Board],
not the Court, will be better able to assess [Grant’s] ability to pay
court-ordered restitution as [Grant] serves prison time and at the
time when payments will commence during parole, if [Grant] is
granted parole.” Even though the district court’s view—that the
Board would have better insight into Grant’s ability to pay,
especially when and if he is paroled—has logical merit, section
77-38a-302(2)(a)–(b) did not give the court the option to delegate
the determination of court-ordered restitution to the Board. See
Laycock, 2009 UT 53, ¶ 20; see also Ogden, 2018 UT 8, ¶ 26; Mooers,
2017 UT 36, ¶ 12.

¶59 In so deciding, the court appears to have relied on State v.
Ogden, 2018 UT 8, 416 P.3d 1132, in which the Utah Supreme
Court stated that the Act “requires a district court to ‘determine’
complete restitution, but gives it discretion with regard to the
imposition of court-ordered restitution.” Id. ¶ 42 (citing Laycock,
2009 UT 53, ¶ 23). The State agrees with the district court that
this statement “grant[s] discretion on whether to order court-
ordered restitution.” But we agree with Grant that Ogden’s
reliance on Laycock is better understood as a reference to the
court’s discretion over the amount of court-ordered restitution—

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 State v. Grant

“it can be the same as complete restitution, it could be less, it
could be nothing.” See Laycock, 2009 UT 53, ¶ 23 (“Although the
court must determine complete restitution, it is not required to
order a defendant to pay complete restitution as part of the
criminal sentence.”); id. ¶¶ 27–29 (explaining that the court is
“under no obligation to impose court-ordered restitution in an
amount equal to complete restitution” and that “the imposition
of court-ordered restitution is discretionary”). The district court
must make a determination; the statute does not allow the
district court to pass that determination off to the Board. See
Ogden, 2018 UT 8, ¶ 26 (stating that the Act “requires the district
court to calculate two types of restitution: complete restitution
and court-ordered restitution” (citing Utah Code section 77-38a-
302(2))). We therefore conclude that the court’s reliance on the
statement in Ogden was misplaced.

¶60 We also disagree with the State that the 2017 amendments
to Utah Code section 77-38a-302 support the court’s action. In
particular, section 77-38a-302(5)(d) was revised to provide that if
“the defendant is committed to prison . . . any pecuniary
damages that have not been determined by the court within one
year after sentencing may be determined by the Board.” Utah
Code Ann. § 77-38a-302(5)(d)(iii) (LexisNexis 2017). But we agree
with Grant that the plain language of this provision allows the
Board in this circumstance to determine “pecuniary damages,”
not “court-ordered restitution.” See Ogden, 2018 UT 8, ¶ 43 (“The
plain language of the [statute’s] text provides the best evidence
of legislative intent.”); accord Mooers, 2017 UT 36, ¶ 7. This
provision therefore does not alter the district court’s obligation
to determine both complete restitution and court-ordered
restitution. 16

16. In support of its position, the State also relies on Utah Code
sections 77-27-6 and 77-27-5. Section 77-27-6 states that the Board
(continued…)

20190621-CA 28 2021 UT App 104
 State v. Grant

¶61 Hence, we conclude that the district court erred when it
deferred its court-ordered restitution determination to the Board.
We thus remand this matter for the court to make that
determination.

CONCLUSION

¶62 We first conclude that Grant has not established error in
the district court’s decision allocating all fault to him. We then
conclude that the district court did not commit obvious error
when it included the deceased’s parents’ lost income as part of
complete restitution. We finally conclude that the district court
erred when it declined to determine court-ordered restitution.
Accordingly, we affirm in part, reverse in part, and remand for
the district court to determine court-ordered restitution.

(…continued)
“may impose any court order for restitution,” Utah Code Ann.
§ 77-27-6(2)(a) (LexisNexis 2017), and further explains, “In
accordance with Subsection 77-38a-302(5)(d)(iii), the [B]oard
may order that a defendant make restitution for pecuniary
damages that were not determined by the court, unless the
[B]oard applying the criteria as set forth in Section 77-38a-302
determines that restitution is inappropriate,” id. § 77-27-6(2)(b);
see also id. § 77-27-5(1)(e) (explaining that the Board “may
determine restitution as provided in Section 77-27-6 and
Subsection 77-38a-302(5)(d)(iii)”). The plain language of these
provisions, however, allows the Board to order restitution only
for “pecuniary damages that were not determined by the court,”
id. § 77-27-6(2)(b), and it does not suggest that the court can pass
its obligation to determine court-ordered restitution to the
Board.

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