State v. Shepherd

Skoglund, J.,

¶ 14. dissenting. The majority finds that assigning to defendant the costs of relocating a family to Hawaii is an appropriate use of the restitution statute. I dissent.

¶ 15. Defendant sexually assaulted Juvenile 1 numerous times over a two-month period in 2009. The crime attracted media attention and Juvenile 1 experienced anxiety about being identified as the victim of the sexual abuse. He was afforded therapy. His mother felt that the entire family was being ostracized by the community. Eventually mother decided to move the family away from Grand Isle County to give her son a fresh start in a community that did not know about his victimization. She decided to move to Hawaii because mother had family there and because Hawaii would provide assistance to her other son, Juvenile 2, a child with special needs. The move ultimately cost $15,887.78.

¶ 16. Initially, the trial court found that “[rjelocation was not a necessary result of the defendant’s crime.” A different judge responded to a motion for reconsideration and granted restitution for the move to Hawaii. The majority adopts the court’s ultimate conclusion that defendant’s criminal behavior in a small Vermont town caused the family’s perceived ostracism and resulted in the relocation. I cannot agree. If the embarrassment and distress that often visits any victim of a crime can be held to be a direct result of a criminal act, then all crime victims seeking to relocate can look to be reimbursed for moving expenses, especially given the *501reality that the entire state of Vermont is a small town for purposes of identifying victims of major crimes. Further, it is difficult for this writer to catalog a perceived shunning as anything other than subjective emotional harm. Under the standard adopted by the majority, there will be no limits as to what can be considered the direct result of a crime. And, what material loss has this family suffered as a direct result of the sexual assault of Juvenile 1? Is loss of anonymity to be considered a material loss?

¶ 17. Determining a restitution award is discretionary with the trial court. State v. VanDusen, 166 Vt. 240, 245, 691 A.2d 1053, 1056 (1997). And, as defendant does not contest any of the court’s findings of fact, this Court need only evaluate whether our restitution statute permits the award in this case. Restitution is considered when “a victim of a crime . . . has suffered a material loss.” 13 V.S.A. § 7043(a)(1). A material loss means “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2). Our case law requires a “direct link between the loss for which restitution is ordered and the conduct for which defendant has been convicted.” State v. LaFlam, 2008 VT 108, ¶ 17, 184 Vt. 629, 965 A.2d 519 (mem.); see also State v. Tetrault, 2012 VT 51, ¶ 10, 192 Vt. 616, 54 A.3d 146 (mem.). We require “some form of proximate causation in addition to causation in fact,” adopting the approach of the vast majority of other jurisdictions. LaFlam, 2008 VT 108, ¶11.

¶ 18. In State v. Forant, we held that the restitution statute is “narrowly drawn.” 168 Vt. 217, 222, 719 A.2d 399, 402 (1998). In Forant, the defendant was convicted of domestic assault of his wife. Following the assault, the victim changed her locks and telephone number, even though the locks were not damaged and the defendant did not use the telephone to harass her. We addressed the question of whether the restitution statute covered the victim’s expenses in making those changes. The defendant argued that these expenses were “for the purpose of improving her security, and were not to repair property damage inflicted by him.” Id. at 221, 719 A.2d at 402. He reasoned that there was no direct link between his criminal acts and her expenses, and therefore the expenses were not compensable under the restitution statute. Id. We agreed, holding that the victim’s expenses were “indirect costs,” resulting from her fear of future harassment *502by her husband. Id. at 223, 719 A.2d at 403. Perhaps most relevant to our present case, we held:

Even if one views the victim’s fear as related to the crime committed against her, expenditures made by her to restore her sense of security relate more to emotional distress damages. Such damages are not recoverable as restitution under our prior holding in [State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986)], because they are generally not liquidated and ascertainable. The fact that [the victim] reduced her damages to an amount certain by making specified expenditures does not make what are essentially emotional distress damages liquidated and ascertainable under § 7043.

Id.

¶ 19. I cannot distinguish the situation presented in this case from the issue in Forant. The first reason for the family’s relocation — that Juvenile 1 needed a fresh start in a new community where he would not feel identified and embarrassed by his victimization — is a claim for emotional damages. The cost of moving to another state to escape Juvenile l’s perceived loss of privacy is not the equivalent of hospital bills, lost employment income, and property damage — the types of liquidated damages compensable under the statute. Id. at 222, 719 A.2d at 402. In this case, the Victims’ Compensation Program requested reimbursement for sums expended by the program for mental health counseling for Juvenile 1 ($1,645.00). The court granted that request. That award properly reflects the purpose and scope of Vermont’s restitution statute. However, mother’s request for moving expenses does not reflect “a material loss,” 13 V.S.A. § 7043(a)(l)-(2), and is not directly linked to the crime perpetrated against her son.

¶20. Rather, relocation in this situation is more akin to “pain and suffering, emotional trauma, loss of earning capacity, and wrongful death awards [which] are not proper subjects of restitution under § 7043, because a restitution order in a criminal case is not the same as, and is no substitute for, an award of civil damages.” Forant, 168 Vt. at 222, 719 A.2d at 402 (quotation and alteration omitted). While the acts perpetrated against Juvenile 1 may account for his anxiety and depression, and relocation to another town may aid in his recovery, that is not the test. His *503counselor testified that a new location would not have as many “triggers” to remind him of the abuse and would be “a fresh start.”3 That she is discussing emotional damages suffered by Juvenile 1 should not be in dispute.

¶ 21. At the restitution hearing, mother testified that while the family had discussed moving to Hawaii before the assault on Juvenile 1, it was a long-term plan that would not have come to fruition at least until her daughter finished high school several years thereafter. The State suggested that, but for defendant’s criminal acts, the family would have stayed in South Hero, at least in the short term. However, just as in a tort case in which the defendant’s negligent act must be the proximate cause of the plaintiff’s injuries, there is a limit to how far the restitution statute can be used to support life changes for a victim. That is what we held in Forant.

¶ 22. The family’s second reason for relocating — to be close to family and in a state that offers Juvenile 2 the services he needs — is simply irrelevant and is in no way linked to defendant’s crime. Though 13 V.S.A. § 5301(4) defines “victim” to include family members of a minor, there was nothing presented to the court that would support a finding that Juvenile 2’s relocation was related to the crime against his brother. Accordingly, there are no legal grounds upon which Juvenile 2’s needs can be factored into an award of restitution in this case.

¶ 23. Defendant’s crime was horrific and Juvenile 1 suffered direct injury. However, the impetus for the relocation to Hawaii is the result, not of the sexual assault, but of the ensuing publicity and the revelation of Juvenile l’s identity. Our restitution statute is not intended to provide “new starts” to restore comfort for the victims. The majority has extended the concept of restitution by finding a weak causal link that I suspect will be ever-expanding. I would hold that the trial court’s exercise of discretion in awarding restitution cannot be sustained.

¶24. I am authorized to state that Justice Burgess joins this dissent.

His counselor did not say he could not begin the healing process without relocating, as reported by the majority. In her letter to the court, admitted through her testimony on the witness stand, she declared: “Although the community, Mends and neighbors have been very supportive, I believe it would be difficult for [Juvenile 1] to ‘move on’ in life.”