State v. Wadsworth

2015 UT App 138
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SCOTT C. WADSWORTH,
Defendant and Appellant.

Opinion
No. 20130510-CA
Filed May 29, 2015

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 031908633

Debra M. Nelson and Nisa J. Sisneros, Attorneys
for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.

CHRISTIANSEN, Judge:

¶1 Scott C. Wadsworth appeals from the district court’s
restitution order imposed after he was convicted of and
sentenced for sexual exploitation of a minor, unlawful sexual
activity with a minor, and enticing a minor over the internet. The
district court ordered Wadsworth to reimburse the victim for the
lost wages she incurred several years after Wadsworth’s crimes
‚due primarily to the depression, sleep issues, emotional pain,
and an inability to interact with others that was caused by the
psychological trauma from being victimized by [Wadsworth].‛
Wadsworth claims that the causal connection between his
criminal conduct in 2003 and Victim’s lost wages in 2009 and
 State v. Wadsworth

2010 is too attenuated to support an award of restitution and
that Victim’s lost wages due to depression and psychological
trauma are more akin to unrecoverable pain and suffering
damages than to pecuniary damages. We conclude that the
causal connection between Wadsworth’s conduct and Victim’s
lost wages is clear, that any attenuation resulting from a delay in
ordering restitution was caused by Wadsworth absconding
before his initial sentencing hearing in 2005, and that Victim’s
lost wages are economic pecuniary damages specifically
recoverable by statute. We therefore affirm the district court’s
restitution order.

BACKGROUND

¶2 In July 2003, Wadsworth met Victim, then a minor, in an
online chat room. Over the next three weeks, Wadsworth and
Victim chatted online and on the telephone. During their
conversations, Wadsworth sent Victim numerous pornographic
images and video clips. On one occasion, Wadsworth went to
Victim’s home and she performed oral sex on him. In December
2003, Wadsworth was charged with over twenty offenses arising
out of his misconduct involving Victim.

¶3 In October 2004, Wadsworth pled guilty to sexual
exploitation of a minor, unlawful sexual activity with a minor,
and enticing a minor over the internet. The remaining charges
against him were dismissed. The district court set sentencing for
April 8, 2005. However, Wadsworth failed to appear at the
sentencing hearing, and a warrant was issued for his arrest.

¶4 Wadsworth evaded authorities until July 2009 when he
was arrested on the outstanding warrant. Wadsworth was
finally sentenced for his crimes in December 2009. At the time of
sentencing, the court ordered ‚that *Wadsworth+ pay full and
complete restitution‛ to Victim, and took the amount of
restitution under advisement, to be decided at a later date.

¶5 On November 19, 2010, the district court held a restitution
hearing. At that hearing, Victim was the only witness to testify.
Victim testified that Wadsworth’s original criminal conduct and

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the reminder of his crime after his 2009 arrest caused her
‚psychological problems, difficulties and depression‛ that
negatively affected her both personally and professionally.
Victim also submitted a written statement signed by her work
supervisor, which the court read into the record:

As a result of the arrest in December [that] has
brought up past memories and caused me to go
into a deep state of depression, [I] had to cut down
my hours at work to deal with past issues and I’ve
missed out [on] 940 hours. I make $13.76 an hour.
It is totaled up $12,934.46 and has negatively
affected me financially.

Victim’s counselor also submitted a letter to the court stating
that Victim would likely need weekly counseling sessions for at
least one year to deal with issues related to the case. The court
took the matter under advisement and continued the restitution
hearing until December 2010.

¶6 On December 9, 2010, the court resumed the restitution
hearing. At the December restitution hearing, the district court
found that Victim’s lost wages in 2009 and 2010 were the result
of Wadsworth’s criminal conduct in 2003. In the district court’s
written order, the court found that the ‚re-appearance of
[Wadsworth] after that significant amount of time‛—between
his failure to appear at his 2005 sentencing and his arrest in
2009—‚brought back bad memories and caused mental anguish
to *Victim+.‛ The district court further found,

As a direct result of *Wadsworth’s+ criminal
conduct, [Victim] was unable to work full-time as
she had been doing before. This was due primarily
to the depression, sleep issues, emotional pain, and
an inability to interact with others that was caused
by the psychological trauma from being victimized
by [Wadsworth].

The court ordered Wadsworth to pay restitution in the amount
of $6,500 for Victim’s counseling costs and $12,934.40 as
recompense for Victim’s lost wages. Wadsworth now appeals

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 State v. Wadsworth

the restitution order regarding the court’s determination on
Victim’s lost wages.1

ISSUE AND STANDARD OF REVIEW

¶7 ‚*I+n the case of restitution, a reviewing court will not
disturb a district court’s determination unless the court exceeds
the authority prescribed by law or abuses its discretion.‛ State v.
Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104. ‚‘[T]he exercise of
discretion in sentencing necessarily reflects the personal
judgment of the court and the appellate court can properly find
abuse only if it can be said that no reasonable [person] would
take the view adopted by the trial court.’‛ State v. Corbitt, 2003
UT App 417, ¶ 6, 82 P.3d 211 (alterations in original) (quoting
State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)). Whether an
award of restitution is proper in a particular case ‚depends
solely upon interpretation of the governing statute, and the trial
court’s interpretation of a statute presents a question of law,
which *this court+ review*s+ for correctness.‛ State v. Brown, 2009
UT App 285, ¶ 6, 221 P.3d 273 (alterations in original) (citation
and internal quotation marks omitted).

ANALYSIS

¶8 Wadsworth argues that the restitution award to Victim
for lost wages was improper for two reasons. First, Wadsworth
contends that the causal connection between his conduct in 2003
and Victim’s lost wages in 2009 and 2010 is too attenuated to
support an award of restitution. Second, Wadsworth claims that
Victim’s lost wages are more appropriately classified as pain and
suffering damages, which are not awardable pursuant to the
restitution statute.

1. Wadsworth does not challenge the portion of the district
court’s order of restitution relating to Victim’s counseling costs.

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 State v. Wadsworth

I. The Causal Connection Between Wadsworth’s Criminal
Conduct and Victim’s Lost Wages Is Sufficiently Established to
Support the Award of Restitution.

¶9 The Crime Victims Restitution Act (the Act) provides,
‚When 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 . . . .‛ Utah Code Ann.
§ 77-38a-302(1) (LexisNexis 2008). Pecuniary damages are ‚all
demonstrable economic injur[ies] . . . arising out of the facts or
events constituting the defendant's criminal activities.‛ Id. § 77-38a-
102(6) (emphasis added). Criminal activities are defined as ‚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). Thus, to obtain an
order of restitution, the State must prove that the victim has
suffered economic injury and that the injury arose out of the
defendant’s criminal activities. See id. § 77-38a-102(6); see also id.
§ 77-38a-102(14)(a) (defining a victim as ‚any person whom the
court determines has suffered pecuniary damages as a result of
the defendant’s criminal activities‛ (emphasis added)).

¶10 ‚Utah has adopted a modified ’but for’ test to determine
whether pecuniary damages actually arise out of criminal
activities.‛ State v. Brown, 2009 UT App 285, ¶ 11, 221 P.3d 273.
Utah’s modified ‚but for‛ test requires that (1) the damages
‚would not have occurred but for the conduct underlying the . . .
[defendant’s+ conviction‛ and (2) the ‚causal nexus between the
[criminal] conduct and the loss . . . is not too attenuated (either
factually or temporally).‛ Id. (alterations and omissions in
original) (citation and internal quotation marks omitted).

¶11 Wadsworth admits that his conduct in 2003, for which he
pled guilty, satisfies the statutory definition of criminal activity.
However, Wadsworth claims that this criminal conduct and
Victim’s lost wages are too attenuated because ‚*s+everal years
[had] passed between the conduct at issue and the pecuniary
loss.‛ Wadsworth states, ‚Rather than a direct nexus like a
physical injury causing missed work days or a valuable item

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 State v. Wadsworth

missing from a home after a burglary, this case involves a sexual
crime’s psychological damage and the measure of that damage’s
resulting negative impact on the victim’s ability to perform job
duties (six years after the fact).‛

¶12 We agree with the district court that Victim’s lost wages
in 2009 and 2010 were connected closely enough with
Wadsworth’s criminal acts to be recoverable as restitution. First,
while several years did pass between the criminal conduct in
2003 and the beginning of Victim’s decreased work hours in
2009, the four-year separation between Wadsworth’s scheduled
sentencing and the onset of Victim’s damages was due entirely to
Wadsworth absconding before his original sentencing in 2005.
Utah law provides that the victim of a crime has ‚the right to a
speedy disposition of the charges free from unwarranted delay
caused by or at the behest of the defendant‛ and to a ‚prompt
and final conclusion of the case after the disposition or
conviction and sentence, including prompt and final conclusion
of all collateral attacks on dispositions or criminal judgments.‛
Utah Code Ann. § 77-38-7(2) (LexisNexis 2008). Here,
Wadsworth should not be rewarded for fleeing and depriving
Victim of her right to a quick and prompt resolution of the case.
Cf. State v. Verikokides, 925 P.2d 1255, 1258 (Utah 1996) (refusing
to order a new trial for a defendant whose trial record was
destroyed after he fled the country for seven years and
observing that ‚convicted criminals should not be rewarded for
fleeing the jurisdiction before sentencing‛). Thus, while Victim
continued to suffer damage years after the original criminal
activity, any lack of temporal proximity between the criminal
acts and the ultimate problems faced by Victim arose entirely
from Wadsworth’s absence from his sentencing, which delayed
full resolution of the case for years. The district court did not
abuse its discretion by refusing to penalize Victim for the delay
caused by Wadsworth.

¶13 Second, the events are not factually attenuated. Complete
restitution is that amount necessary to compensate the victim
‚for all losses caused by *a criminal+ defendant.‛ Utah Code
Ann. § 77-38a-302(2)(a). The Act ‚should be liberally construed
to accomplish the purpose of making crime victims whole for the

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 State v. Wadsworth

harms they suffer because of a defendant’s criminal conduct.‛
State v. Ruiz, 2013 UT App 166, ¶ 18, 305 P.3d 223 (Christiansen,
J., concurring in part and dissenting in part). District courts are
granted flexibility in determining damages in order to ‚fashion
an equitable award to the victim,‛ see State v. Corbitt, 2003 UT
App 417, ¶ 14, 82 P.3d 211, and the court may consider ‚all
relevant facts‛ in arriving at an appropriate complete restitution
award, see Utah Code Ann. § 77-38a-302(5)(b). Wadsworth
argues that the causal nexus between his criminal conduct and
Victim’s pecuniary loss is not ‚readily apparent.‛ We disagree.

¶14 Here, the district court found a causal nexus between
Victim’s damages and Wadsworth’s criminal conduct. As
evidence of the causal connection, Victim testified that beginning
in December 2009, she had to decrease her work hours due to
depression, sleep issues, and an inability to interact with her
coworkers, all arising from Wadsworth’s criminal acts. Victim
stated that these problems began ‚*r+ight when *the case+ started
back up again,‛ near the time that Wadsworth was arrested and
sentenced. When asked what she believed has been the cause of
her inability to continue full-time work, Victim stated, ‚It’s
everything to me of what has happened when I was 14. I had six
years to forget about it and then all of the sudden it just comes
right back up right in the middle of my life.‛ The district court
found that Victim’s testimony was credible, and that, but for
‚being a victim of the crimes that Mr. Wadsworth has pled
guilty to,‛ Victim would not have suffered from the
psychological issues causing her her inability to work. The
district court considered Wadsworth’s failure to appear at his
sentencing in 2005 and that his reappearance ‚after that
significant amount of time brought back bad memories and
caused mental anguish to *Victim+.‛ The court stated that Victim

suffers from . . . depression or some psychological
or mental health issues related to this case that
require counseling, that according to her testimony
she has suffered from depression that has affected
her ability to work and [that she] has not been able
to work full-time when prior to that she was able to
and that is supported primarily by her testimony.

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Based on Victim’s testimony and the statements and letters in
evidence, the court concluded that ‚*Victim has+ indicated that
the depression and therefore her inability to work and how it has
affected her work is because of the psychological issues that
have arisen because of being a victim of the crimes that Mr.
Wadsworth has pled guilty to.‛

¶15 Victim was the only witness to testify at the hearing and
Wadsworth presented no evidence or witnesses at the hearing to
rebut Victim’s testimony that her depression and inability to
work were caused by Wadsworth’s criminal activities. On
appeal, Wadsworth identifies no record evidence showing that
Victim’s testimony ‚was so lacking that no reasonable person
would take the view adopted by the trial court.‛2 State v. Hight,
2008 UT App 118, ¶ 6, 182 P.3d 922 (citation and internal
quotation marks omitted). The court appropriately relied on the
testimony at the hearing, the exhibits, and the pleadings and
arguments of counsel. See id. Thus, in light of Victim’s testimony,
her actual loss, and the deference we must accord the district
court and its authority ‚to fashion an equitable award to the
victim,‛ Corbitt, 2003 UT App 417, ¶ 14, we hold that the district
court did not abuse its discretion or exceed the authority
prescribed by law in determining that Wadsworth’s criminal

2. Wadsworth argues that the State failed to show that Victim’s
marital problems were not the cause of her depression and
consequently her lost wages. But the district court found that
Victim’s ‚psychological trauma *caused by Wadsworth’s crimes+
was manifest by . . . marital intimacy disruption‛ and that these
marital problems were not intervening causes, because
Wadsworth’s criminal conduct ‚was the direct cause of the
psychological trauma to *Victim+.‛ On appeal, Wadsworth
provides no evidence to rebut the district court’s determinations
and only offers the same speculation presented to the district
court that Victim’s marital problems could be intervening
factors. Thus, Wadsworth has not shown that the district court’s
findings amounted to an abuse of discretion. See State v. Laycock,
2009 UT 53, ¶ 10, 214 P.3d 104.

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conduct was the ‚but for‛ cause of Victim’s lost wages, see State
v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104.

II. Victim’s Lost Wages Are Pecuniary Damages
Recoverable by Statute.

¶16 Wadsworth argues that even if his criminal conduct
caused Victim’s damages, her lost wages are more appropriately
classified as pain and suffering damages that are not recoverable
under the Act. In evaluating this claim, we first examine the
plain language of the restitution statute, and we will ‚apply
other methods of statutory interpretation only when the
language is either ambiguous or inconsistent.‛ State v. Mast, 2001
UT App 402, ¶ 10, 40 P.3d 1143 (citation and internal quotation
marks omitted). ‚When examining a statute’s plain language, we
strive to give meaning to each section of the statute in order to
give effect to all of the statute’s terms.‛ Id. (citation and internal
quotation marks omitted).

¶17 The Act explicitly provides for victims to receive
restitution for lost wages. The Act defines pecuniary damages as
‚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 activities‛
and encompasses ‚losses including lost earnings.‛ Utah Code
Ann. § 77-38a-102(6) (LexisNexis 2008) (emphasis added). The
Act specifically excludes ‚punitive or exemplary damages and
pain and suffering.‛ Id.

¶18 Wadsworth argues that although ‚[Victim] identified a
precise monetary amount she lost,‛ her lost wages result from
her cutting back her hours ‚because of her emotional issues and
her own determination of how much she could or could not
work.‛ Wadsworth asserts that Victim’s claim for lost wages is
therefore ‚a proxy for pain and suffering.‛ But the Act only
requires that a victim’s damages ‚aris*e+ out of the facts or
events constituting the defendant’s criminal activities.‛ Id. And
‚*i+f readily ascertainable costs associated with emotional injury
arising directly from a crime were not within the scope of
restitution,‛ then ‚restitution would not cover reasonable
counseling expenses for victims of crime.‛ State v. Shepherd, 2012

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 State v. Wadsworth

VT 91, ¶ 11, 60 A.3d 213; see also Utah Code Ann. § 77-38a-
302(5)(b)(ii) (LexisNexis 2008) (explaining that a court’s
restitution determination should take into consideration the
‚cost of necessary medical and related professional services . . .
relating to physical or mental health care, including nonmedical
care and treatment rendered in accordance with a method of
healing recognized by the law of the place of treatment‛).

¶19 ‚The focus in awarding restitution to a victim is not the
type of injury sustained, but rather the link between the
damages and the crime.‛ Shepherd, 2012 VT 91, ¶ 11. In Shepherd,
the Vermont Supreme Court addressed the issue of an award of
restitution for a sexual-assault victim’s relocation expenses. Id.
¶ 1. The court stated that the victim’s ‚emotional injury and
ostracization . . . were the natural and probable consequences of
the sexual assaults, thereby necessitating relocation.‛ Id. ¶ 9.
Though the victim suffered emotional injury, the court held that
his relocation expenses had a specific monetary value, were
based on ‚the disruption of the family’s life, not some subjective
emotional harm,‛ and were appropriately recoverable as
restitution because there was a direct link between the crime and
the costs incurred. Id. ¶ 12. Here, Victim’s lost-wages claim was
based on the total number of hours she could not work because
of the psychological trauma directly caused by Wadsworth’s
criminal acts and reignited by his arrest in 2009.

¶20 Wadsworth also argues that the Act typically provides for
lost wages in two instances: (1) when the victim incurs lost
wages because the offense caused bodily injury to the victim,
and (2) when the victim’s tools or equipment items of her trade
are damaged or stolen and those items are essential to the
victim’s current employment. This argument appears to
interpret the Act as limiting lost-wages restitution to those types
of cases. But such an interpretation is inconsistent with the plain
language of the Act. ‚In determining the monetary sum and
other conditions for complete restitution, the court shall consider
all relevant facts, including,‛ among other things, those
categories of lost wages Wadsworth has identified. See Utah
Code Ann. § 77-38a-302(5)(b) (emphasis added). ‚[W]hen any
statute uses the word ‘includ*ing+,’ it ‘means that the items listed

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 State v. Wadsworth

are not an exclusive list, unless the word ‚only‛ or similar
language is used to expressly indicate that the list is an exclusive
list.’‛ Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 14, 332 P.3d
922 (quoting Utah Code Ann. § 68-3-12(1)(f) (LexisNexis 2014));
see also Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810
(‚When ‘including’ precedes a list, its common usage is to
indicate a partial list.‛).

¶21 The Act contains no express language limiting the list of
relevant facts a court must consider when awarding restitution.
In fact, we note that Utah Code section 77-38a-302(5)(b) instructs
courts to consider ‚all relevant facts,‛ indicating that a court
must consider all facts that are relevant to the case, including
ones beyond those listed in that section. Moreover, applying the
statutory meaning of ‚including‛ to section 77-38a-302(5)(b)
yields results consistent with the Act’s purpose ‚of making
crime victims whole for the harms they suffer because of a
defendant’s criminal conduct.‛ State v. Ruiz, 2013 UT App 166,
¶ 18, 305 P.3d 223 (Christiansen, J., concurring in part and
dissenting in part). Thus, a plain reading of the restitution
statute supports the district court’s conclusion that Victim
suffered ‚pecuniary damages‛ in the form of lost wages as
contemplated by the Act. The district court therefore correctly
determined that Victim’s damages included her lost wages and
that such damages were appropriately awardable pursuant to
the Act.

CONCLUSION

¶22 We conclude that the district court did not abuse its
discretion or exceed its authority in determining that Victim’s
pecuniary damages were caused by Wadsworth’s criminal
activities for purposes of the restitution statute. Nor did the
district court abuse its discretion or exceed its authority in
determining that Victim’s damages included her lost wages. We
affirm the district court’s restitution order.

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