State v. Becker

2018 UT App 81

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DARRON LAVEN BECKER,
Appellant.

Opinion
No. 20131151-CA
Filed May 3, 2018

Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 131902981

Debra M. Nelson and Lacey C. Singleton, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Darron Laven Becker was charged with third-degree
aggravated assault after attacking Victim with a shovel.
Following plea negotiations, Becker pleaded guilty to the
reduced charge of attempted aggravated assault, a class A
misdemeanor. The district court agreed to hold Becker’s plea in
abeyance for two years provided he complied with the
conditions that he attend an anger management class and pay
restitution. Becker now challenges the order of restitution,
contending the record evidence did not “clearly establish a
causal connection between [his] admitted criminal conduct and
 State v. Becker

[Victim’s] alleged damages.”1 We conclude the State did not
carry its burden to prove that Becker’s conduct, for which he
agreed to pay restitution, resulted in Victim’s alleged damages.
We therefore reverse the order of restitution and remand to the
district court for further proceedings consistent with this
opinion.

¶2 One evening, Becker saw Victim walking his unleashed
dogs through Becker’s neighborhood. Enraged, Becker stormed
out of his house, grabbed a shovel, and began swinging the
shovel at the dogs while yelling obscenities at Victim. Victim
apologized and attempted to avoid a confrontation by crossing
the street. But Becker did not abate and twice swung his shovel
at Victim, first striking him in the throat and then on the head.
Witnesses saw Becker pin Victim against a fence and heard

1. Becker appealed the order of restitution to this court in 2014,
which we dismissed for lack of jurisdiction after determining
that the order of restitution was a condition of a plea in abeyance
agreement and therefore was not a final appealable order. See
State v. Becker, 2015 UT App 304, ¶¶ 9, 12, 365 P.3d 173, rev’d sub
nom. State v. Mooers, 2017 UT 36. Our supreme court
consolidated Becker with a second case, State v. Mooers, 2015 UT
App 266, 362 P.3d 282, and reversed our decisions that we lacked
jurisdiction in each case, concluding that the district court’s
restitution orders were for “complete restitution,” which were
final, appealable orders. Mooers, 2017 UT 36, ¶¶ 17, 24. The cases
were remanded to this court, and we now consider the merits of
Becker’s appeal. See id. ¶ 24.
Although Becker has since completed the conditions for
his plea in abeyance, which resulted in the dismissal of the
charges against him, we nevertheless address the merits of his
appeal because he could recover the restitution he paid if he is
successful on appeal. See State v. Steed, 2017 UT App 6, ¶¶ 16–
18, 25, 391 P.3d 373 (concluding that because the defendants’
convictions were reversed, the restitution order was void and
the defendants were entitled to a reimbursement).

20131151-CA 2 2018 UT App 81
 State v. Becker

Becker scream that he was going to kill Victim. Victim sustained
injuries to his neck and head, as well as a laceration across his
left hand.

¶3 The district court accepted Becker’s guilty plea and then
the State filed a motion for restitution, requesting $663.01, and
attached a “Restitution/Subrogation Notice” from the Utah
Office for Victims of Crimes (the UOVC). This notice listed
information about Becker and Victim; the date, location, and
type of crime; and the payment the UOVC made to Victim
within days of the aggravated assault. The UOVC paid Victim
$663.01 for a “Medically Necessary Device.” The UOVC also
requested reimbursement for that payment. No other
information was provided to support the payment made for
such a device.

¶4 Becker objected to the State’s motion for restitution and
the court held a hearing. Because Victim was absent from the
hearing, the State supported its restitution request with a
handwritten note from Victim, which itemized “the economic
losses he suffered from the assault: $39 for a vision exam, $624
for a pair of replacement eyeglasses, and $480 in lost wages.” But
the State did not present any evidence to show that Victim was
wearing eyeglasses during the assault, nor did it present any
receipts or documents from a physician with respect to the eye
exam and Victim’s purchase of eyeglasses. Becker argued that
not only was this evidence insufficient to establish which
medically necessary devices were paid for, but that it was also
insufficient to establish a causal nexus between Victim’s alleged
damages and the conduct for which Becker agreed to pay
restitution. The State responded that the payments were for the
eyeglasses and vision exam, as provided in Victim’s handwritten
note.2 But Becker “strenuously object[ed] to any order of

2. Victim’s handwritten note alleged the following expenses: $39
for an eye exam and $624 for eyeglasses, totaling $663. It is
(continued…)

20131151-CA 3 2018 UT App 81
 State v. Becker

restitution that . . . [was] based just on a handwritten piece of
notebook paper,” even if the UOVC paid reparations based on
that evidence alone. He also complained that neither Victim nor
a UOVC representative was present at the hearing to explain the
basis for the payment.

¶5 The district court stated that Victim’s handwritten note
and the UOVC’s documents did not “seem to be sufficient . . . to
even determine whether [the reparations payment] is directly
connected to . . . the criminal conduct of Mr. Becker.” The court
set a second restitution hearing to give the parties “some time to
see if in fact [the reparations payment] is what it claims to be.”

¶6 The parties did not produce additional evidence at the
second restitution hearing. And neither Victim3 nor a UOVC
representative appeared to testify. Becker again objected to an
order of restitution based on the UOVC’s reparation payment,
arguing that, even if the reparation payment to Victim was for a
vision exam and eyeglasses, there was insufficient evidence to
determine that his conduct resulted in “damages to [Victim’s]
eye or his eyeglasses” because the police reports and witness
statements did not provide foundation for establishing these
damages. Becker also argued that his due process rights were
violated because he had “a right to cross-examine” both Victim
and “whoever from [the UOVC] looked at this claim and made
the determination and what exactly it was for and whether there
is a proper basis for it.”

¶7 The court concluded that Becker’s due process rights were
not violated because his right to confront witnesses was a “trial

(…continued)
unclear why the UOVC paid an additional $.01, but because we
vacate the order, we need not reconcile the amounts.

3. The State subpoenaed Victim to testify at both restitution
hearings, but he did not appear for either hearing.

20131151-CA 4 2018 UT App 81
 State v. Becker

right[]” that he waived when he pleaded guilty to a reduced
crime. The court also determined there was “sufficient
foundation and nexus” between Becker’s conduct and Victim’s
damages and ordered restitution in the amount of $663.01.

¶8 Becker timely appealed, contending the record evidence
did not “clearly establish a causal connection between [his]
admitted criminal conduct and [Victim’s] alleged damages” that
would support an order of restitution.4

¶9 We “will not disturb a [district] court’s restitution order
unless it exceeds that prescribed by law or [the court] otherwise
abused its discretion.” State v. Corbitt, 2003 UT App 417, ¶ 6, 82
P.3d 211 (quotation simplified).

¶10 The Utah Code5 provides that “[w]hen a person is
convicted of criminal activity that has resulted in pecuniary
damages, . . . the court shall order that the defendant make
restitution to the victims, or for conduct for which the defendant
has agreed to make restitution as part of a plea agreement.”6

4. Becker also contends his due process rights were violated
when he was denied a full restitution hearing. Because we vacate
the order of restitution on other grounds, we need not address
Becker’s due process claims. See State v. Johnson, 2009 UT App
382, ¶ 18, 224 P.3d 720 (stating “courts should avoid reaching
constitutional issues if the case can be decided on other
grounds” (quotation simplified)).

5. The amendments made with respect to each of the statutes
cited in this opinion are not substantive and do not affect the
outcome of this appeal. We therefore refer to the most recent
edition of the Utah Code. See State v. Rackham, 2016 UT App 167,
¶ 9 n.3, 381 P.3d 1161.

6. Before oral argument, the State filed a letter with
supplemental authority. See Utah R. App. P. 24(j) (providing that
a party may file a notice of supplemental authority after briefing
(continued…)

20131151-CA 5 2018 UT App 81
 State v. Becker

Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2017); see also id.
§ 77-38a-302 (restitution criteria). Pecuniary damages are “all
demonstrable economic injur[ies], whether or not yet
incurred . . . arising out of the facts or events constituting the
defendant’s criminal activities.” Id. § 77-38a-102(6).

¶11 Here, Becker was charged with aggravated assault, a third
degree felony, but as a result of plea negotiations he pleaded

(…continued)
or oral argument but before a decision is issued). The State
explained that neither party had cited or analyzed Utah Code
section 76-3-201, which, in relevant part, requires a court to enter
“an order of restitution for restitution payable to the [UOVC] in
the same amount” that the UOVC made in reparations to the
victim of the criminal offense. Utah Code Ann. § 76-3-201(4)(c)
(LexisNexis 2017). Though this is correct, the next subsection of
that statute provides that a court must consider criteria under
Utah Code section 77-38a-302(5)(c) to determine whether the
amount of restitution should be reduced from the amount of
reparations paid by the UOVC or if the defendant should be
exempted from restitution. Id. § 76-3-201(4)(d). The criteria under
section 77-38a-302(5)(c) relate only to court-ordered restitution.
Id. § 77-38a-302(5)(c) (LexisNexis 2017). But the Utah Supreme
Court reversed our previous determination in State v. Becker,
2015 UT App 304, 365 P.3d 173, that the ordered restitution was
“court-ordered” and determined that what had been ordered
was “complete restitution,” State v. Mooers, 2017 UT 36, ¶¶ 17,
24. Although the district court specifically stated that it was
ordering Becker to make restitution to the UOVC, we are bound
by the Utah Supreme Court’s decision that the order of
restitution was for “complete restitution,” and we therefore
cannot consider the supplemental authority in our analysis. See
State v. Menzies, 889 P.2d 393, 399 n.3 (Utah 1994) (providing that
vertical stare decisis “compels a court to follow strictly the
decisions rendered by a higher court”), superseded in part by
constitutional amendment, Utah Const. art. I, § 12 (amended 1995).

20131151-CA 6 2018 UT App 81
 State v. Becker

guilty to the reduced charge of attempted aggravated assault. As
part of the plea agreement he signed, Becker agreed to pay
restitution to Victim, “including any restitution that may be
owed on charges that are dismissed as part of [this] plea
agreement.”7 At the plea hearing, Becker’s counsel repeatedly
confirmed that Becker was willing to pay restitution as a
condition of his plea in abeyance:

The Court: . . . [I]t is clear that restitution will be
paid.

[Defense Counsel]: Yes.

The Court: The amount has not been agreed upon.

[Defense Counsel]: Right.

The Court: . . . [I]f everyone understands the
payment of restitution as ordered by this court
ultimately, based upon the motion hearings or
motions that we get from the State on this, will be
one of the conditions, and . . . the plea in abeyance
will not be fully resolved, and the case will not be
dismissed, unless that restitution is paid according
to the order of the court.

7. To the extent Becker asserts that proximate cause cannot be
established between his conduct and damages to Victim’s
eyeglasses because he pleaded guilty to attempted aggravated
assault, rather than aggravated assault, this argument is
specious. As a result of the agreement, Becker agreed to pay
restitution for damages that arose out of his actual conduct,
which involved hitting Victim over the head with a shovel and
pinning him to a fence, and not only the conduct for which he
pleaded guilty. If “attempt” were taken literally in this situation,
then Victim could have no damages and Becker’s promise to pay
restitution as part of the plea agreement would be illusory.

20131151-CA 7 2018 UT App 81
 State v. Becker

[Defense Counsel]: That’s correct.

The Court: Even if Mr. Becker ultimately disagrees
with what that is, it does not change the plea in
abeyance conditions—

[Defense Counsel]: That’s correct.

¶12 Although Becker agreed to pay restitution for the
aggravated assault, the State was nevertheless required to prove
“that the victim has suffered economic injury and that the injury
arose out of the defendant’s criminal activities.” See State v.
Brown, 2009 UT App 285, ¶ 10, 221 P.3d 273, overruled on other
grounds by State v. Ogden, 2018 UT 8. The State has not met that
burden here.

¶13 The Utah Supreme Court recently established that the
proximate cause test is the proper test for determining whether a
defendant’s criminal activity resulted in the economic injury
suffered by a victim for purposes of restitution.8 Ogden, 2018 UT
8, ¶ 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.”
Dee v. Johnson, 2012 UT App 237, ¶ 4, 286 P.3d 22 (quotation
simplified); see also Raab v. Utah Ry. Co., 2009 UT 61, ¶ 22, 221
P.3d 219 (“‘In its most common usage, the term ‘proximate
cause’ is equivalent to ‘legal cause’ and is usually juxtaposed
against the term ‘cause in fact.’” (citation omitted)).
“[F]oreseeability is an element of proximate cause.” Steffenson v.
Smith’s Management Corp., 862 P.2d 1342, 1346 (Utah 1993).
“Therefore, the more fundamental test is whether under the

8. In deciding that proximate cause is the appropriate test for
determining whether a defendant should pay restitution, the
Utah Supreme Court “necessarily overrule[d] the body of court
of appeals precedent applying a ‘modified but for’ test.” State v.
Ogden, 2018 UT 8, ¶ 48 n.12.

20131151-CA 8 2018 UT App 81
 State v. Becker

particular circumstances the defendant should have foreseen
that his conduct would have exposed others to an unreasonable
risk of harm.” Dee, 2012 UT App 237, ¶ 5 (quoting Watters v.
Querry, 588 P.2d 702, 704 (Utah 1978)) (quotation simplified).

¶14 Although the UOVC paid reparations to Victim, the State
must still satisfy the proximate cause test. Brown, 2009 UT App
285, ¶ 12 n.10 (rejecting “the State’s argument that it was
excused from establishing the causal connection between the
crime and the restitution amount because the Office of Crime
Victims Reparations had reimbursed” the victim).

¶15 Because the rules of evidence do not apply to restitution
proceedings, the State may present hearsay or other inadmissible
evidence to meet this burden. State v. Weeks, 2002 UT 98, ¶ 16, 61
P.3d 1000. But the evidence presented here did not establish that
Becker’s aggravated assault caused damage to Victim’s eyes or
eyeglasses. The only evidence presented by the State was
Victim’s handwritten note and documents from the UOVC with
an itemization of payments for a “Medically Necessary Device.”
Victim’s handwritten note was a bare itemized list of expenses,
and he did not provide receipts, insurance, or provider
information related to his eyeglasses and eye exam, or any
information relating the listed items to the aggravated assault.
Thus, there was no information provided to the court to
demonstrate that Becker’s conduct “produced the injury, and
without which the injury would not have occurred,” see Dee,
2012 UT App 237, ¶ 4, and therefore did not meet the standards
for restitution.

¶16 On the other hand, Becker sufficiently rebutted the State’s
request for restitution for the eye exam and eyeglasses by
highlighting the fact that nothing in the police report suggested
that Victim suffered damages to his eyeglasses and that none of
the witness statements, including Victim’s, even mentioned
eyeglasses. Rather, the investigating officer reported that Victim
suffered injuries to “the top of his head, scratches and marks on
his neck and a laceration on his hand.”

20131151-CA 9 2018 UT App 81
 State v. Becker

¶17 We conclude that the State failed to establish that the
conduct for which Becker agreed to pay restitution caused9
Victim’s alleged damages and therefore need not determine
whether the damage was foreseeable. See id. ¶¶ 4–5. The State
had two opportunities to provide evidence sufficient to establish
causation, and it was unable to do so. Because restitution may be
awarded “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. Poulsen, 2012 UT
App 292, ¶ 11, 288 P.3d 601 (quotation simplified), overruled on
other grounds by State v. Ogden, 2018 UT 8, we reverse the order of
restitution and remand to the district court to reimburse Becker
for the restitution he paid under protest to the UOVC.

9. Although courts applied the “modified but for” test at the
time of Becker’s restitution hearing, our conclusion that the State
failed to carry its burden of proving Becker’s conduct resulted in
Victim’s damages would have been the same under either test
and we therefore reverse the order of restitution without
remanding to the district court to apply the proximate cause test.
In Ogden, the Utah Supreme Court implicitly agreed with the
defendant that the “modified but for test” is “something less
than proximate causation.” See Ogden, 2018 UT 8, ¶¶ 24, 29
(reviewing whether the defendant was correct in arguing that
“something less than proximate cause[]” was used to “establish
that [the defendant] caused [the victim’s] damages” and
determining that “the district court employed something other
than proximate cause”). Even under the less rigid “modified but
for” test, the State could not demonstrate that the need for an eye
exam and replacement eyeglasses “would not have occurred but
for [Becker’s] conduct,” because there was no information
provided to the court to demonstrate a causal connection
between the conduct for which Becker agreed to pay restitution
and Victim’s alleged damages. See State v. Brown, 2009 UT App
285, ¶ 11, 221 P.3d 273, overruled by Ogden, 2018 UT 8.

20131151-CA 10 2018 UT App 81