State v. Watson

2021 UT App 37

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MALVIN WATSON,
Appellant.

Opinion
No. 20190828-CA
Filed April 1, 2021

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 181905609

Nathalie S. Skibine and Melissa Stirba, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Malvin Watson appeals from the district court’s
restitution order. He contends, in relevant part, that the State did
not meet its burden of establishing that his bizarre road rage
perpetrated against another driver (Victim) proximately caused
Victim’s need for mental health therapy. Without sympathy for
Watson, we do agree with his legal position and therefore vacate
the restitution order.
 State v. Watson

BACKGROUND 1

¶2 On April 27, 2018, Victim left for the gym in her “little
four-door” vehicle. During the drive, Victim noticed Watson’s
SUV “way behind” her and proceeded to merge into the same
lane. Watson disagreed with Victim’s assessment of the distance
between their two vehicles, instead believing that she had cut
him off. Overcome by road rage, Watson began acting as if he
were going to hit Victim’s vehicle by repeatedly speeding up
behind her and then suddenly braking. In response, Victim
changed back into her original lane. Instead of getting on with
his life, Watson followed Victim, and Victim observed (but could
not hear) him screaming as he continually attempted to force her
off the road by swerving his car toward hers.

¶3 Attempting once more to “get out of his way” and lose
him, Victim sped up and made a right-hand turn at the next
intersection. Watson pursued, charged at her at “full speed,”
struck her from behind, and then left the scene by making a
U-turn.

¶4 Victim followed Watson to obtain his license plate
number. When Watson realized that Victim was behind him, he
hit his brakes and got out of his SUV. He approached Victim,
who had also exited her vehicle, and he began threatening to
“slam [her] head into the fucking car,” called her various
derogatory terms, and tried to grab her. Victim ran into the road
and attempted to flag down passing vehicles for assistance.

1. Our recitation of the facts is taken from the record of Watson’s
trial and restitution hearing. Concerning the facts giving rise to
Watson’s convictions, “we review the record facts in a light most
favorable to the jury’s verdict and recite [them] accordingly.”
State v. Liti, 2015 UT App 186, ¶ 3 n.2, 355 P.3d 1078 (quotation
simplified).

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 State v. Watson

Watson was “still coming at [her],” so Victim ran back to the
sidewalk and tried to use her vehicle “as a shield” to keep
Watson away. Because Watson kept trying to go around the car
to get to her, Victim ran into a neighborhood with the aim of
knocking on a door for help. Watson was undeterred and
followed Victim into the neighborhood.

¶5 Fortunately, a man (Bystander 1) and his cousin
(Bystander 2) observed the confrontation between Watson,
whom they described as “a big man,” and Victim, whom they
described as “a small young lady,” from Bystander 1’s driveway.
They witnessed Watson push Victim and decided to intervene.
As the two approached, Bystander 2 called out, “Hey, you don’t
hit a woman.” Watson then pulled out a pocketknife.

¶6 A man (Bystander 3) who was driving by made a U-turn
in response to Victim’s earlier attempt to flag down passing
vehicles and pulled up on the scene. Bystander 3 shouted at
Watson, whose attention at the time was directed toward
Bystander 1 and Bystander 2, and Watson then began
approaching Bystander 3. One of the two other men warned
Bystander 3 that Watson was in possession of a knife, so
Bystander 3 retrieved his firearm and instructed a passenger in
his vehicle to call the police. At that point, the situation
deescalated, and Watson walked back to his SUV, stating that he
was “going to move it up just a little bit.” Bystander 2 followed
Watson in his own vehicle, and the two pulled over
approximately three blocks away and waited for police officers
to arrive.

¶7 For his conduct toward Victim, the State charged Watson
with one count each of assault and reckless driving, class B
misdemeanors, and one count of following too closely, an

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 State v. Watson

infraction. 2 Following a trial, the jury convicted Watson of those
charges, and the district court sentenced him to a suspended jail
sentence and twelve months of probation. 3 The court also
ordered Watson, “subject to [his] objection,” to pay $1,980 4 plus
interest in restitution to the Utah Office for Victims of Crime
(UOVC), which represented the amount UOVC had paid for
mental health therapy sessions for Victim. See Utah Code Ann.
§ 63M-7-519 (LexisNexis 2016).

¶8 Watson objected to the restitution order and requested a
hearing on the matter. See id. § 77-38a-302(4) (Supp. 2020). 5 At
the hearing, the State presented a list of the 25 mental health
therapy sessions UOVC had paid on Victim’s behalf. The list
provided the date of each session, ranging between June 12,
2018, and May 1, 2019, and the amount paid for each session.
The list did not include provider information other than to

2. The State also charged Watson with three counts of
aggravated assault, third-degree felonies, for his conduct toward
Bystander 1, Bystander 2, and Bystander 3. Watson successfully
argued at trial that he pulled out the pocketknife in self-defense,
and the jury acquitted him of those charges.

3. The State has since sought to have Watson’s probation
revoked and the jail sentence reinstated because of new charges
against him, including aggravated assault.

4. The district court originally ordered Watson to pay $1,910 in
restitution, but this figure later increased to $1,980 because
UOVC made an additional payment on Victim’s behalf during
the time between the original order and the restitution hearing.

5. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those currently in
effect, we cite the current version of the code for convenience.

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 State v. Watson

simply note “Mental Health Therapy” under that column, and it
did not include information regarding the topics addressed in
each session or the treatment plan. There was also no indication
whether Victim had a prior counseling relationship with the
provider.

¶9 The State also presented testimony from the UOVC
restitution specialist (Restitution Specialist) who prepared the
list. Her familiarity with this case was limited to her preparation
of the list upon the State’s request, and she stated she did not
“remember any details about it.” Restitution Specialist did,
however, testify concerning UOVC’s standard procedure. She
explained that when UOVC receives a request for payment from
a victim, a claims analyst will “review each invoice that comes in
for crime relatedness” and will authorize payment only if the
claims analyst determines that the claim “is related to the
specific crime.” Regarding mental health treatment, Restitution
Specialist testified that UOVC “require[s] a mental health
treatment plan to be filled out by the therapist that [the victim
would] like to go to” and will authorize payment only if the plan
indicates that the victim’s need for therapy “is crime related or
that it is therapy that they’re attending because of this traumatic
incident that they had.” If the foregoing requirements are met,
UOVC will “automatically” approve 25 therapy sessions for a
primary victim and will pay a maximum of $300 for the initial
session and a maximum of $70 for each of the remaining 24
sessions.

¶10 Here, a claims analyst, and not Restitution Specialist, had
reviewed Victim’s treatment plan. Accordingly, Restitution
Specialist could not testify to Victim’s specific treatment plan or
vouch for its crime-relatedness. Instead, she could only testify
that as a matter of standard procedure, there must have been a
treatment plan that the claims analyst approved prior to
authorizing payment. Restitution Specialist also testified that a
claims analyst reviews each treatment invoice for

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 State v. Watson

crime-relatedness before authorizing payment. In this case,
UOVC did not request progress notes for Victim, which it
typically does only if the invoices contain questionable medical
codes. Against this backdrop, Restitution Specialist conceded
that it was possible for Victim to have discussed issues in
therapy that were unrelated to the crimes Watson perpetrated
against her.

¶11 Watson objected to the restitution amount, arguing,
among other things, that the State did not establish the requisite
causation. He asserted, in relevant part, that UOVC approved
the maximum benefit of 25 therapy sessions without proof that
each session was proximately caused by the crimes. The district
court rejected Watson’s arguments, holding that Watson’s
actions “absolutely caused” Victim’s need for therapy.
Accordingly, the court ordered Watson to pay $1,980 to UOVC
in restitution. Watson appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Watson challenges the district court’s order that he
reimburse UOVC for Victim’s mental health therapy sessions on
the ground that the State failed to present sufficient evidence to
establish proximate cause. 6 “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 (quotation simplified).

6. Watson raises additional challenges to the district court’s
restitution order. But because we vacate the court’s order based
on the State’s failure to establish proximate cause, we need not
address these additional arguments.

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 State v. Watson

ANALYSIS

¶13 At an intuitive level, the district court’s belief that
Watson’s actions “absolutely caused” Victim’s need for therapy
rings true. And it should be pointed out that Victim received
mental health services that were paid for by UOVC. The only
issue in this appeal is whether the State properly established that
those costs should be shifted from UOVC to Watson.

¶14 The Crime Victims Restitution Act requires district courts
to order restitution “[w]hen a defendant enters into a plea
disposition or is convicted of criminal activity that has resulted
in pecuniary damages.” Utah Code Ann. § 77-38a-302(1)
(LexisNexis Supp. 2020). The act defines pecuniary damages as
“all demonstrable economic injury, whether or not yet incurred,
including those which a person could recover in a civil action
arising out of the facts or events constituting the defendant’s
criminal activities,” including “medical and other expenses” but
not “punitive or exemplary damages and pain and suffering.” Id.
§ 77-38a-102(7).

¶15 Furthermore, “[a] trial court’s restitution award must rely
on a sufficient evidentiary basis,” State v. Ogden, 2018 UT 8, ¶ 52,
416 P.3d 1132, and it may award restitution “only in cases where
liability is clear as a matter of law and where the commission of
the crime clearly establishes causality of the injury or damages,”
State v. Becker, 2018 UT App 81, ¶ 17, 427 P.3d 306 (quotation
simplified). Our Supreme Court has clarified that the standard of
causation under the act is that of proximate cause. See Ogden,
2018 UT 8, ¶¶ 39, 48. “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.” Becker, 2018 UT App 81, ¶ 13 (quotation
simplified). It requires proof of two elements: (1) but-for
causation and (2) foreseeable harm. State v. Randall, 2019 UT App
120, ¶ 20, 447 P.3d 1232. “In restitution cases, the burden is on

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 State v. Watson

the State to prove proximate cause.” State v. Morrison, 2019 UT
App 51, ¶ 13, 440 P.3d 942.

¶16 Here, Watson argues that insufficient evidence supported
the district court’s restitution order. He argues, among other
things, that UOVC’s decision to pay for Victim’s mental health
therapy and Restitution Specialist’s testimony regarding
UOVC’s general procedures were insufficient to establish that
his criminal conduct proximately caused Victim’s need for 25
therapy sessions. While we do not doubt that Watson’s violent
behavior could readily lead to Victim’s need for mental health
services to address the trauma she suffered as a result of his
conduct, we agree that the State did not prove its case for
restitution.

¶17 Even in cases where UOVC compensates a victim, the
State still bears the burden of proving “that the victim has
suffered economic injury and that the injury arose out of the
defendant’s criminal activities.” Becker, 2018 UT App 81, ¶¶ 12,
14 (quotation simplified). The State asserts that “[t]estimony
from [Restitution Specialist] showed that the therapy sessions in
this case must have involved crime-related mental health
problems because the therapist had to comply with the UOVC
procedures and, therefore, necessarily provided invoices
showing crime-relatedness before they were authorized for
payment.” Restitution Specialist testified that UOVC authorizes
payment on a victim’s behalf so long as the claims analyst
determines that the treatment plan and subsequent invoices
indicate that the requested treatment “is crime related.” See Utah
Admin. Code R270-1-14(2) (“Awards will only be granted for
costs the reparations officer determines are directly related to or
resulting from criminally injurious conduct.”). But mere
“crime-relatedness” falls short of the proximate cause standard,
which requires a showing that the crime, “in a natural and
continuous sequence, unbroken by any new cause, produced the
injury” and that the injury would not have occurred absent the

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crime. See Becker, 2018 UT App 81, ¶ 13 (quotation simplified).
Thus, the claims analyst reviewed the treatment plan and
invoices under a standard of causation that fell short of
proximate cause, rendering the claims analyst’s conclusion an
insufficient basis upon which to order restitution.

¶18 But even if the claims analyst had reviewed the materials
for proximate cause, a “trial court must determine whether
restitution is available from the record before it rather than from
assumptions about the analysis an administrative agency may
have employed in reaching its conclusions under a distinct
statute that . . . has different goals and limitations.” State v.
Brown, 2009 UT App 285, ¶ 12 n.10, 221 P.3d 273, overruled on
other grounds by Ogden, 2018 UT 8. In other words, the court may
not delegate the determination of proximate cause to UOVC.

¶19 The State contends that “[a] qualified mental health
provider . . . met with Victim and conducted an evaluation from
which he determined that her mental health problem resulted
from the criminal conduct in this case.” This determination was,
according to the State, included in the treatment plan that a
claims analyst reviewed for “crime-relatedness.” While this may
be true, it is an insufficient basis on which the district court
could find the necessary causal relationship between the crime
and each of the 25 therapy sessions. As discussed above, the
district court may not substitute UOVC’s judgment for its own.
Instead, so that the court could make its own determination
based on the evidence, it was incumbent on the State to include
in the record the materials the claims analyst relied on or other
evidence, such as testimony from Victim or her therapist, to
permit the court’s direct review of the evidence establishing
causation. See Becker, 2018 UT App 81, ¶ 15 (concluding that “a
bare itemized list of expenses” without “receipts, insurance, or
provider information” related to the victim’s injury was
insufficient “to demonstrate that [the defendant’s] conduct
produced the injury, and without which the injury would not

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 State v. Watson

have occurred”) (quotation simplified). Thus, because the only
evidence the State presented at the restitution hearing required
the court to rely on UOVC’s determinations regarding a lower
standard of causation and did not allow the court to make its
own, independent determination on the subject, the State’s
evidence was an insufficient basis for the court’s restitution
award.

¶20 The State further argues that in addition to relying on the
list and Restitution Specialist’s testimony, the district court also
based its decision on evidence presented at trial. It asserts that
“[t]here is no doubt that Watson’s hostile conduct toward Victim
from the very beginning, including his foul language and threats
toward Victim . . . was the sole causative factor” of Victim’s need
for therapy. It is inarguable that Watson’s abhorrent conduct
could well have proximately caused Victim’s need for mental
health care, but the trial evidence focused on Watson’s criminal
conduct toward Victim; it did not address the subsequent effect
that conduct had on her mental well-being. Although Victim
testified that she was “scared” at the time of her confrontation
with Watson, she did not testify regarding the subsequent effects
the incident had on her, and the State did not introduce other
evidence of Victim’s symptoms or diagnosis. Thus, the trial
evidence left a gap between Watson’s actions and Victim’s
subsequent need for therapy, which gap, as discussed above, the
evidence presented at the restitution hearing failed to fill.

CONCLUSION

¶21 The evidence the State presented both at trial and at the
restitution hearing was insufficient to establish that Watson’s
criminal conduct proximately caused Victim’s need for the
mental health therapy she received. Accordingly, we vacate the
district court’s restitution order.

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