State v. Ruiz

2016 UT App 18

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JONATHAN A. RUIZ,
Appellant.

Opinion
No. 20140159-CA
Filed January 28, 2016

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 101402012

Neil D. Skousen, Attorney for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUSTICE JOHN A. PEARCE concurred. JUDGE MICHELE M.
CHRISTIANSEN concurred in part and dissented in part, with
opinion. 1

BENCH, Senior Judge:

¶1 Jonathan A. Ruiz appeals the trial court’s order that he
pay restitution in the amount of $42,475 in connection with his

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Justice John A. Pearce began his work on this case as a member
of the Utah Court of Appeals. He became a member of the Utah
Supreme Court thereafter and completed his work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(3).
 State v. Ruiz

convictions for attempted unlawful sexual activity with a minor
and its order denying his motion to disqualify the trial judge. We
affirm both orders.

BACKGROUND

¶2 We previously considered this matter in State v. Ruiz (Ruiz
I), 2013 UT App 166, 305 P.3d 223. The victim in this case
(Victim) was admitted to La Europa, a residential treatment
facility, because she expressed suicidal thoughts following
her sexual encounters with Ruiz. See id. ¶ 2. But even before she
met Ruiz, Victim “had a history of depression, anxiety, self-
harm, substance abuse, lying, arguing, stealing, and sexually
acting out.” Id. ¶ 3 (internal quotation marks omitted). Thus,
her therapy at La Europa addressed a number of issues,
including “trauma from the incident with Ruiz,” “depression,
hypersexuality, family issues, and substance abuse.” Id. Victim
remained at La Europa for nine months at a cost of $51,000. Id.
¶ 4.

¶3 The trial court determined that complete restitution
included the entire cost of Victim’s stay at La Europa because
“Ruiz’s actions were the ‘but for’ cause of Victim’s enrollment in
La Europa.” Id. ¶ 11. However, when this decision was appealed
in Ruiz I, we concluded that the trial court had “failed to explain
the causal nexus between the incident and the nine months of
intensive inpatient therapy Victim underwent,” which included
family therapy and substance abuse treatment, or “to examine
how Victim’s preexisting conditions impacted her need for that
level of therapy.” Id. ¶ 11 & n.2. Thus, we held that “the trial
court’s findings in support of its determination of complete
restitution were insufficient” and remanded the case so the trial
court could “make more detailed findings in support of its
determination of complete restitution.” Id. ¶ 11.

20140159-CA 2 2016 UT App 18
 State v. Ruiz

¶4 On remand, the trial court made more detailed findings
regarding the impact of Ruiz’s actions on Victim. The trial court
found that prior to the incident with Ruiz, Victim “had been
undergoing outpatient counseling” and was “experiencing
improvement in her condition before the crime without inpatient
treatment.” Following the encounter, Victim “regressed to being
passively suicidal,” which “aggravated [her] preexisting mental
conditions . . . to the point outpatient care was inadequate.”

¶5 The trial court also found that the monthly tuition paid to
La Europa was fixed, regardless of the issues addressed. Thus,
although “the victim received treatment in La Europa to replace
the outpatient treatment previously received for her preexisting
conditions . . . , she was not charged extra for that treatment,”
because she “would have paid the same monthly tuition if her
only issue was recovery from the trauma suffered at the hands of
[Ruiz].” The trial court found that the entire nine months of
residential treatment was necessary to address the trauma
Victim suffered and that even at the time of discharge,
continued inpatient therapy was recommended specifically with
respect to Victim’s “continuing trauma issues from the crime.”
Nevertheless, the trial court deducted the estimated per-hour
cost (based on the per-hour rate Victim was later charged for
outpatient therapy) of a number of Victim’s therapy sessions at
La Europa that the trial court determined were devoted
exclusively to unrelated preexisting conditions and reduced the
total amount of complete restitution to $42,475.

¶6 After the trial court issued its order, Ruiz filed a motion
under rule 29 of the Utah Rules of Criminal Procedure to
disqualify the trial judge. Ruiz asserted that the judge “showed
bias against [Ruiz] by inappropriately denying defense counsel
the right to cross-examine the victim.” He also asserted that by
suggesting that counsel’s cross-examination of Victim would
“traumatize” her, the judge “personally attack[ed] defense
counsel’s integrity as an officer of the court.” Furthermore, Ruiz

20140159-CA 3 2016 UT App 18
 State v. Ruiz

argued that the judge indicated his bias against Ruiz by
characterizing Ruiz’s actions toward Victim as “rape”; by
generally minimizing the impact of Victim’s preexisting
conditions, in particular the impact of alleged physical and
emotional abuse committed by her father; by expressing his
agreement with the dissenting opinion rather than the lead
opinion in Ruiz I; and by indicating his intent to order the
maximum amount of restitution possible.

¶7 The trial judge made a threshold determination not to
grant Ruiz’s motion and referred the motion to the presiding
judge. In the referral order, the trial judge explained the reasons
he believed the motion to disqualify should be denied.

¶8 The presiding judge concluded that the trial judge’s
refusal to allow Ruiz’s counsel to cross-examine Victim showed
only “a disagreement regarding the extent of the victim’s duties
to provide evidence at the hearing” and failed to demonstrate
“either actual or apparent bias or prejudice against [Ruiz].” The
presiding judge further found that statements the trial judge
made to Ruiz’s counsel did not attack counsel’s integrity and, at
best, “only commented on the unintended effects of counsel’s
examination of the victim.” The presiding judge explained that
the trial judge’s use of the term “rape” was clearly “used only to
reference the victim’s therapists’ use of the term” and did not
indicate the trial judge’s belief that Ruiz was guilty of rape rather
than the crime he was actually convicted of—attempted
unlawful sexual activity with a minor. The presiding judge also
concluded that the trial judge’s discussion of Victim’s
preexisting conditions revealed only “a disagreement with
counsel regarding the cause of the victim’s need for therapy,”
not any “actual or apparent bias against [Ruiz].” Finally, the
presiding judge rejected Ruiz’s assertion that the trial judge
“begrudged having to follow the directions received from the
court of appeals on remand,” observing that the trial judge
“clearly stated [his] intention to exercise [his] responsibilities

20140159-CA 4 2016 UT App 18
 State v. Ruiz

‘within the bounds of what the appellate courts’” had directed.
Accordingly, the presiding judge denied Ruiz’s motion to
disqualify the trial judge.

ISSUES AND STANDARDS OF REVIEW

¶9 Ruiz first argues that the trial court exceeded its
discretion in fixing the amount of restitution. “[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.

¶10 Ruiz further argues that the trial judge erred in failing to
recuse himself and by commenting on Ruiz’s motion to
disqualify when referring the motion to the presiding judge.
“Issues of recusal present questions of law that we review for
correctness.” State v. Wareham, 2006 UT App 327, ¶ 13, 143 P.3d
302.

ANALYSIS

I. Restitution Order

¶11 Ruiz first asserts that the trial court exceeded its
discretion by ordering that he pay complete restitution in the
amount of $42,475. 2 In doing so, he argues that the trial court

2. Ruiz refers to a number of perceived errors in the course of his
argument, most of which are mentioned only in passing. For
example, Ruiz suggests that the court improperly denied him the
opportunity to question Victim; that the State improperly failed
to present expert testimony in support of its assertion that there
was a causal nexus between the incident with Ruiz and all nine
(continued…)

20140159-CA 5 2016 UT App 18
 State v. Ruiz

failed to follow this court’s instructions on remand and that the
trial court did not properly employ the modified but-for test for
determining the relationship between his crime and Victim’s
damages.

¶12 In order to determine complete restitution, the trial court
was required to employ “[a] modified ‘but for’ test.” Ruiz I, 2013
UT App 166, ¶ 8, 305 P.3d 223 (alteration in original) (citation
and internal quotation marks omitted). This test “requires (1)
that the damages would not have occurred but for the conduct
underlying the [defendant’s] . . . conviction and (2) that the
causal nexus between the [criminal] conduct and the loss . . . not
[be] too attenuated (either factually or temporally).” Id.
(alterations in original) (citation and internal quotation marks
omitted). The trial court’s task was made particularly
complicated in this case because Victim’s inpatient therapy,
which was initially necessitated by Ruiz’s actions, addressed a
number of preexisting conditions which had the potential to
prolong Victim’s stay at the inpatient facility.

¶13 In its original order, which we considered in Ruiz I, the
trial court ordered that Ruiz pay for the entire cost of Victim’s

(…continued)
months of Victim’s inpatient therapy; that the trial court’s
calculation of court-ordered restitution was inaccurate; and that
the trial court’s reference to the incident as “rape,” despite the
fact that Ruiz pled guilty only to attempted unlawful sexual
activity with a minor, suggests that the court held Ruiz
accountable for a higher crime than that for which he was
convicted. We interpret these arguments merely as support for
Ruiz’s argument that the trial court exceeded its discretion. To
the extent Ruiz may have intended to argue them as
independent grounds for reversal, we determine that they are
inadequately briefed. See Utah R. App. P. 24(a)(9).

20140159-CA 6 2016 UT App 18
 State v. Ruiz

inpatient therapy based on its determination that “Ruiz’s actions
were the ‘but for’ cause of Victim’s enrollment in La Europa.” Id.
¶ 11. On appeal, we determined that this finding was insufficient
to support a determination that Victim’s entire nine-month stay
at La Europa was necessitated by Ruiz’s actions. Id. Accordingly,
we remanded “for the trial court to make more detailed findings
in support of its determination of complete restitution.” Id.

¶14 On remand, there appeared to be some confusion as to
whether our opinion in Ruiz I required the trial court to reduce
the amount of restitution or whether the trial court could
reinstate its previous order if it made additional findings. On
remand—and now, on appeal—Ruiz argued, based on our
opinion, that he could be held responsible for no more than “10
to 20 percent of the cost of therapy,” since Victim’s trauma was
only one of five different areas to be addressed in the course of
inpatient therapy. The State, on the other hand, interpreted our
opinion as permitting the trial court to uphold the original
complete-restitution order so long as it supported the order with
additional findings showing the causal nexus between Ruiz’s
actions and Victim’s continued inpatient therapy. Victim’s
attorney agreed, arguing that our opinion was not intended “to
obviate the principle that you take your victim as you find her.”
The trial court expressed skepticism about this position: “Well, I
don’t know. I think they kind of did.”

¶15 In its remand order, the trial court expressed
dissatisfaction with our opinion in Ruiz I, but ultimately
concluded that our opinion required it to reduce the restitution
order based on Victim’s preexisting conditions. The trial court
explained,

An allegory [to this case] would be where a
[conviction for driving under the influence] with
injury leads to a knee operation but the heavy
victim has to be put through a professional weight

20140159-CA 7 2016 UT App 18
 State v. Ruiz

reduction program before aftercare therapy to be
assured of successful knee surgery. The Court
takes the appellate decision in the present matter to
mean in a criminal restitution context the injured
party could not recover for addressing the
preexisting weight problem even though it . . . had
to be resolved to assure a successful knee
operation.

This assessment does not accurately interpret our opinion. We
do not disagree with the trial court that there could be a
causal nexus between the DUI injury and the weight-reduction
program in the scenario described above. However, if that
same victim had a preexisting shoulder injury that was not
exacerbated by the accident and was not related to the success of
the knee surgery, the DUI defendant could not be required to
pay extra costs associated with the shoulder surgery just because
the victim decided to receive the surgery while he was in the
hospital for the knee surgery.

¶16 When we considered the trial court’s original restitution
order in Ruiz I, some of the preexisting conditions in this case,
such as Victim’s substance abuse and her family issues, looked
much more like the shoulder surgery than the weight-reduction
program. Without the benefit of detailed findings in the trial
court’s original restitution order, we were left to speculate as to
whether Victim stayed at La Europa for nine months because it
took that long to address the trauma or because the treatment of
unrelated preexisting conditions prolonged Victim’s stay.

¶17 But while the majority opinion expressed skepticism
about whether Victim would have needed nine months of
inpatient therapy had the therapy addressed only issues caused
or exacerbated by Ruiz, Ruiz I, 2013 UT App 166, ¶ 11 & n.2, 305
P.3d 223, its ultimate concern was with the lack of findings in
support of that conclusion; the trial court’s original order found

20140159-CA 8 2016 UT App 18
 State v. Ruiz

only that Victim’s initial enrollment in La Europa was triggered
by her encounter with Ruiz, not that nine months of inpatient
therapy was needed to address the trauma. In light of the trial
court’s additional detailed findings on remand, we cannot say
that the trial court exceeded its discretion in calculating complete
restitution.

¶18 The trial court’s findings in its order on remand
appropriately addressed “the extent to which the therapy at La
Europa was necessitated by preexisting conditions that were
neither caused nor exacerbated by Ruiz’s actions.” See id. ¶ 11.
The court concluded that although the preexisting conditions
were addressed in the course of Victim’s inpatient therapy, those
conditions neither necessitated her enrollment at La Europa nor
prolonged her stay. Rather, Victim stayed at La Europa for nine
months “because it took that long to start making progress on
the trauma defendant caused.” Furthermore, in addressing
Victim’s therapy in detail, the trial court found that Victim’s
trauma was continually addressed throughout her stay at La
Europa and affected her need for therapy on other issues, even
those that initially appeared to be unrelated to the trauma. For
example, the court found that prior to the crime, Victim had
been “doing better in outpatient individual and family
therapy . . . , was not drinking or smoking and was trying to
adjust” but that her problems escalated following her encounter
with Ruiz. The court also found that “part of the family therapy
was necessary for the parents and victim to learn how to handle
blame for the crime.” These findings are sufficient to support the
trial court’s determination that Victim’s entire stay at La Europa
was necessitated by Ruiz’s actions and was not unnecessarily
prolonged by unrelated preexisting conditions. 3 Thus, the trial

3. We agree with the dissent that the trial court’s findings on
remand would have been sufficient to support a decision
reinstating the trial court’s original complete restitution order
(continued…)

20140159-CA 9 2016 UT App 18
 State v. Ruiz

court’s calculation of complete restitution in the amount of
$42,475, which included a deduction for the estimated per-hour
cost of a number of sessions that focused only on preexisting
conditions, was not an abuse of the court’s discretion.

II. Motion to Disqualify

¶19 Ruiz also argues that the trial judge erred in denying
Ruiz’s motion to disqualify him under rule 29 of the Utah Rules
of Criminal Procedure and by making inappropriate defensive
commentary in his order referring the rule 29 motion to the
presiding judge. See Utah R. Crim. P. 29 (governing motions to
disqualify a judge in criminal cases). Our supreme court has held
that a judge certifying for review a motion to disqualify should
not include “argument or comment on the necessity for
disqualification.” Young v. Patterson, 922 P.2d 1280, 1281 (Utah
1996). 4

¶20 While we agree with Ruiz that the trial judge’s
commentary was inappropriate, Ruiz has failed to demonstrate
that he suffered any harm as a result. Cf. Poulsen v. Frear, 946
P.2d 738, 741–42 (Utah Ct. App. 1997) (holding that where the

(…continued)
and that the trial court would not have exceeded its discretion by
doing so. Infra ¶¶ 24–25. However, because the question of
whether the trial court erred by not reinstating its original order
is not before us, we address only Ruiz’s argument that the trial
court’s restitution order was excessive.

4. Although Young v. Patterson, 922 P.2d 1280 (Utah 1996),
addressed motions to disqualify under rule 63(b) of the Utah
Rules of Civil Procedure, we assume without deciding that this
rule applies equally to referral of a rule 29 motion under the
Utah Rules of Criminal Procedure. Compare Utah R. Civ. P. 63(b),
with Utah R. Crim. P. 29.

20140159-CA 10 2016 UT App 18
 State v. Ruiz

appellant’s affidavit in support of a rule 63(b) motion was
insufficient as a matter of law, any improper comments in the
referral order were harmless). By the time Ruiz filed his motion
to disqualify, the trial judge had already issued the restitution
order. Ruiz’s motion requested only that the trial judge “be
recused or disqualified from the . . . case”; it did not suggest that
disqualification should result in rehearing on the restitution
issue or otherwise seek reconsideration of restitution. Thus, even
if Ruiz had succeeded in disqualifying the trial judge, it would
not have altered the restitution order, and Ruiz has not
otherwise suggested that he suffered harm as a result of the trial
judge’s comments.

¶21 Furthermore, we agree with the presiding judge that none
of the trial court’s statements identified by Ruiz in his rule 29
motion indicate actual or apparent bias against Ruiz. See supra
¶ 8. Therefore, the trial judge did not err in failing to recuse
himself.

CONCLUSION

¶22 On remand, the trial court made sufficient findings in
support of its restitution order and did not exceed its discretion
in ordering Ruiz to pay $42,475 in restitution. Furthermore, the
trial court did not err in denying Ruiz’s motion to disqualify,
and to the extent that comments made by the trial judge in the
referral order were improper, they were harmless. Accordingly,
we affirm both the restitution order and the denial of Ruiz’s
motion to disqualify.

CHRISTIANSEN, Judge (concurring in part and dissenting in
part):

¶23 I concur in Part II of the majority opinion regarding Ruiz’s
motion to disqualify. However, I respectfully dissent from Part I,

20140159-CA 11 2016 UT App 18
 State v. Ruiz

which addresses the trial court’s calculation of complete
restitution. Unlike the majority, I would conclude that the trial
court abused its discretion when it deducted the estimated per-
hour cost of several of Victim’s therapy sessions from the
complete restitution. In my opinion, given the evidence that was
introduced at the restitution hearing and the trial court’s
extensive findings regarding the required inpatient therapy
necessitated by Ruiz’s criminal actions, the trial court should
have retained the original complete restitution order.

¶24 As the majority opinion here acknowledges, the Ruiz I
majority’s “ultimate concern” was with the lack of findings in
support of the trial court’s conclusion that Victim needed nine
months of inpatient therapy to address those issues caused or
exacerbated by Ruiz’s criminal actions. See supra ¶ 17. Thus, on
remand, the trial court was instructed to address “the extent to
which the therapy at La Europa was necessitated by preexisting
conditions that were neither caused nor exacerbated by Ruiz’s
actions.” Ruiz I, 2013 UT App 166, ¶ 11, 305 P.3d 223. However,
nothing in Ruiz I limited the trial court’s ability to reinstate its
previous order, and the trial court would have acted within its
discretion to do so and award the full amount of Victim’s
inpatient therapy, i.e., $51,000, as long as that amount was
supported by detailed factual findings. See id. ¶¶ 11, 14.

¶25 On remand, the trial court concluded that the tuition at La
Europa “was reasonable for all services rendered,” and it had
“no difficulty in finding . . . [that Victim] would not have had to
go to La Europa but for the actions of [Ruiz].” The court further
noted that Victim stayed at La Europa for nine months “because
it took that long to start making progress on the trauma [Ruiz]
caused.” Moreover, the court observed that “[a] crime as in this
case would certainly have some impact on and exacerbate
mental conditions and aberrant behavior preceding the offense,
contributing to a need for the benefits arising from nine months
of residential treatment.” In addition, the trial court noted that

20140159-CA 12 2016 UT App 18
 State v. Ruiz

while certain individual therapy sessions did not “directly
address[] the trauma” caused by Ruiz, the “staff [at La Europa]
appeared to think they had to work on the other [preexisting]
issues to address the trauma” caused by Ruiz. Thus, the trial
court apparently found that all of Victim’s inpatient therapy,
which occurred after Ruiz’s crime, was causally related to Ruiz’s
commission of the crime. It makes no sense, then, for the trial
court to deduct any estimated per-hour cost of outpatient
treatment from Victim’s restitution award, and the trial court
seemingly did so based solely on its misreading of the holding in
Ruiz I.

¶26 I believe that the trial court should have, given its
findings on remand, reinstated its previous order requiring Ruiz
to pay the entire cost of Victim’s inpatient therapy. 5 See, e.g., Rich
v. State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (“The purpose
behind an order of restitution is to impress upon the criminal
defendant the magnitude of the loss he has caused and to defray
costs to the victim caused by the offense.” (citation and internal
quotation marks omitted)). This is especially true given that the
trial court found that Victim “was not charged extra for that
treatment,” that “[t]he residential tuition was the same whether
her treatment was for a single symptom or more than one,” and
that she “would have paid the same monthly tuition if her only

5. In evaluating Ruiz’s argument that the trial court exceeded its
discretion by ordering complete restitution in the amount of
$42,475, see supra ¶ 11, I do not think that we are required to
conclude only that the restitution ordered was either too high (as
Ruiz contends) or that the award was correct (as determined by
the majority). Namely, by challenging the trial court’s restitution
order on appeal, Ruiz opened the door for this court to fully
examine that restitution award. The State did not also need to
cross-appeal for us to reach this issue.

20140159-CA 13 2016 UT App 18
 State v. Ruiz

issue was recovery from the trauma suffered at the hands of
[Ruiz].” 6

¶27 Moreover, in my view, Victim’s mental health conditions
cannot be fairly compared to the majority opinion’s knee-and-
shoulder example. See supra ¶ 15. In that example, the victim’s
preexisting shoulder injury was not exacerbated by the accident
and had no relation to the success of the victim’s knee surgery.
In this case, however, Victim’s mental health conditions were
exacerbated by Ruiz’s actions. Indeed, as the majority opinion
acknowledges, the trial court found Victim was “doing better in
outpatient individual and family therapy” and that her problems
escalated after her encounter with Ruiz to the point that she
required inpatient therapy. See supra ¶ 18. Likewise, whereas a
healthy shoulder is not necessarily crucial to the complete
recovery of one’s knee, mental health conditions are often
sufficiently interrelated such that one condition cannot be
satisfactorily treated without addressing one or more others.
Such is the case here, where the La Europa staff believed “they
had to work on [Victim’s] other issues to address the trauma”
caused by Ruiz’s actions. Thus, Victim’s situation is clearly

6. It is also important to note that “[r]equiring a victim of a
sexual assault or rape . . . to disclose the details of her
communications with her therapist when requesting restitution
for therapy costs would tend to deter [the] victim from
requesting restitution for the cost of therapy.” People v. Garcia,
111 Cal. Rptr. 3d 435, 441 (Ct. App. 2010). Where, as here,
there was evidence that Victim’s inpatient therapy was
necessitated by Ruiz’s actions and related to her being
victimized by Ruiz, I do not believe that “[p]rying into the
specifics of confidential patient-therapist communications
was . . . necessary for purposes of ordering [complete]
restitution.” See id. at 442.

20140159-CA 14 2016 UT App 18
 State v. Ruiz

distinguishable from the majority opinion’s knee-and-shoulder
example.

¶28 Based on the foregoing, I would conclude that the trial
court abused its discretion when it deducted the estimated per-
hour cost of several therapy sessions from Victim’s restitution
award, and I would therefore reverse the order and remand for
the trial court to reinstate its previous restitution award for the
entire cost of Victim’s inpatient therapy. Consequently, I
respectfully dissent in part from the majority opinion.

20140159-CA 15 2016 UT App 18