In Re Tommy G. ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE TOMMY G.
No. 1 CA-JV 20-0386
FILED 5-18-2021
Appeal from the Superior Court in Maricopa County
No. JV205839
Virginia L. Richter, Judge Pro Tempore
AFFIRMED
COUNSEL
The Law Offices of Kevin Breger, PLLC, Scottsdale
By Kevin Breger
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
IN RE TOMMY G.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Judge
Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
M c M U R D I E, Judge:
¶1 Appellant Tommy G. appeals the juvenile court’s award of
restitution to a high school district and its insurer for damage to its
gymnasium. On this record, we conclude that the juvenile court did not
abuse its discretion by awarding the replacement cost of the vandalized
doors or anti-vandal pulls. We, therefore, affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2019, Tommy and two others broke into the high
school gymnasium through the main doors by breaking windows. Once
inside the gymnasium, they gained access to hallways and locker rooms by
breaking through wooden doors to reach the locks and prying open the
metal doors. They stole cash from a student store and vandalized much of
the gymnasium, pouring detergent on equipment, setting off fire
extinguishers, and smashing offices, windows, doorways, computers, and
security cameras. This was the third break-in at that gymnasium in six days.
¶3 The following morning, an assistant principal reviewed the
security footage and identified one of the juveniles. When confronted, the
juvenile confessed but would not identify his cohorts. That same morning,
the assistant superintendent for operations and athletics examined the
gymnasium. With other employees, he assessed the damage, notified the
insurance provider, and obtained quotes from the manufacturers to make
repairs. Quotes included the cost of replacing and installing new doors and
$773 for anti-vandal pulls, a security mechanism that protects the locks
attached to the doors.1 The original doors did not have anti-vandal pulls.
The school provided the damage-repair estimate to the police and filed an
1 The parties estimate that the cost of the anti-vandal pulls was $773,
but the price quotes in the record request a total of $744 for the anti-vandal
pulls.
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insurance claim. The school paid a $10,000 deductible, and the insurance
company paid $22,136 toward repairs.
¶4 The police identified another accomplice, who also confessed.
Eventually, the police identified Tommy as the remaining perpetrator.
¶5 The State filed a petition alleging that Tommy committed a
burglary in the third degree under A.R.S. § 13-1506 and aggravated
criminal damage under A.R.S. § 13-1604.
¶6 In January 2020, the school and insurance companies filed
verified victim statements of financial loss, respectively seeking
compensation for the deductible and reimbursement cost. Tommy entered
a plea agreement where he admitted to aggravated criminal damage. The
agreement required Tommy to “pay restitution to all victims, for all
economic loss,” and established that restitution was joint and several with
the co-juvenile defendants. Tommy’s parents were also held joint and
severally liable up to a statutory limit of $10,000 under A.R.S. § 12-661(B) in
the discretion of the court under A.R.S. § 8-344(A), (C) and A.R.S.
§ 12-661(A).
¶7 The court held a restitution hearing. At the hearing, the
assistant superintendent related that he did not recall how many doors
were broken or how many of them were made of metal. He could not
remember the specific cost of each door in need of replacement. But he
maintained that the purchase merely fixed the damaged doors and that the
replacements were “like for like.”
¶8 Tommy did not dispute the $10,000 deductible restitution
owed to the school district at the hearing but disputed two aspects of the
restitution request for the insurance company. He argued that the court
should decline to order him to pay the anti-vandal pulls cost because such
devices were not previously on the doors. He also argued that because the
superintendent did not know what kind of doors needed to be replaced or
how much they had cost, the court should reduce that part of the award
from $8,737 to $5000.
¶9 The court found credible both the superintendent’s testimony
concerning which items were damaged and the school district’s
documentation of the repair cost. The court also concluded that the cost of
the anti-vandal pulls was an “appropriate consequential damage” resulting
from Tommy’s vandalism because it would fund the prevention of further
destruction. Accordingly, the court awarded $10,000 to the school district
and $12,136 to the insurance company. Tommy and the other two juveniles
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were jointly and severally liable for a total of $22,136. At the State’s request,
the court also found Tommy’s parents jointly and severally liable for
$10,000 of the award.
¶10 Tommy appealed, and we have jurisdiction under A.R.S.
§§ 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶11 On appeal, Tommy2 argues that the juvenile court abused its
discretion for the following reasons: (1) the court granted the school district
a windfall that went beyond the scope of restitution damages by awarding
the costs of the door pulls because the school did not have them before the
crime; (2) reimbursement for the door pulls was not appropriate because
such an award constituted “consequential damages” that are beyond the
scope of what the court could grant; and (3) there was insufficient evidence
to support the court’s finding of a reasonable relationship between the cost
of the new doors and the losses incurred due to the damaged doors.
¶12 “The state has the burden of proving a restitution claim by a
preponderance of the evidence.” State v. Lewis, 222 Ariz. 321, 324, ¶ 7 (App.
2009). We will uphold a restitution award if it “bears a reasonable
relationship to the victim’s loss.” State v. Lindsley, 191 Ariz. 195, 197 (App.
1997). “A court has wide discretion in setting restitution based on the facts
of each case.” State v. Dixon, 216 Ariz. 18, 21, ¶ 11 (App. 2007) (quoting State
v. Ellis, 172 Ariz. 549, 551 (App.1992). We will not disturb the court’s
adjudication of a juvenile delinquent absent an abuse of discretion. In re
Kristen C., 193 Ariz. 562, 563, ¶ 7 (App. 1999); see also State v. Slover, 220 Ariz.
239, 242, ¶ 4 (App. 2009) (“A trial court abuses its discretion if it misapplies
the law or exercises its discretion based on incorrect legal principles.”).
2 Tommy passed away after the notice of appeal was filed. Under such
circumstances, we must determine if it is appropriate to dismiss a pending
appeal. State v. Reed, 248 Ariz. 72, 81, ¶ 31 (2020). We do not dismiss this
appeal because Tommy’s counsel submitted briefing and because the issue
of whether the court correctly determined the restitution award remains a
live controversy for Tommy’s parents and the other juveniles, all of whom
are jointly liable for the judgment.
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Decision of the Court
A. The Juvenile Court Correctly Awarded the Cost of the Anti-Vandal
Pulls.
¶13 A court must “require the convicted person to make
restitution . . . in the full amount of the economic loss as determined by the
court.” A.R.S. § 13-603(C). In ordering restitution for economic loss under
A.R.S. § 13-603(C), the court “shall consider all losses caused by the criminal
offense or offenses for which the defendant has been convicted.” A.R.S.
§ 13-804(B); see also A.R.S § 13-105(16) (“’Economic loss’ means any loss
incurred by a person as a result of the commission of an offense.”).
Economic loss does not include consequential damages. A.R.S. § 13-105(16).
¶14 Our supreme court has synthesized the applicable statutes to
create three requirements for types of loss for which restitution may be
ordered: (1) the loss must be economic; (2) the loss would not have occurred
but for the defendant’s criminal offense; and (3) “the criminal conduct must
directly cause the economic loss” such that the loss did not result from the
“concurrence of some causal event other than the defendant’s criminal
conduct.” State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002).
¶15 As a preliminary matter, we note that if the juvenile court was
correct to characterize its award of the cost of anti-vandal pulls as
consequential damages, then it erred by awarding them. Not only are
consequential damages categorically excluded from economic loss, thus
failing to meet Wilkinson’s first requirement, they also “do not flow directly
or immediately” from an action. State v. Morris, 173 Ariz. 14, 17 (App. 1992)
(quoting 25 C.J.S., Damages, § 2 at 617). Thus, they fail to meet the third
requirement. Nonetheless, because we will “affirm the trial court’s ruling if
the result was legally correct for any reason,” we will affirm the award of
the cost of the anti-vandal pulls if it constitutes restitution. State v. Carlson,
237 Ariz. 381, 387, ¶ 7 (2015) (quoting State v. Perez, 141 Ariz. 459, 464
(1984)).
¶16 A defendant is only liable in restitution for a particular loss if
“the causal nexus between the conduct and the loss is not too attenuated
(either factually or temporally).” Lewis, 222 Ariz. at 325, ¶ 11 (quoting State
v. Guilliams, 208 Ariz. 48, 53, ¶ 18 (App. 2004)). This inquiry is
“fact-specific.” Id. (quoting Guilliams, 208 Ariz. at 53, ¶ 18). Payments
necessary to restore a victim’s equanimity lost due to the offense are not too
attenuated. State v. Quijada, 246 Ariz. 356, 369–70, ¶ 44 (App. 2019). For
example, this court determined that the cost of a home security system’s
installation and one-year’s maintenance constituted economic loss for
restitution because the victim felt vulnerable, particularly after discovering
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Decision of the Court
that one of the defendants had searched for a photograph of her while
burglarizing her home. Quijada, 246 Ariz. at 370, ¶¶ 46–47. Similarly,
moving expenses constituted an economic loss to a victim because they
were necessary to restore her equanimity after the defendant sexually
assaulted her. State v. Brady, 169 Ariz. 447, 448 (App. 1991). There, the
restitution was “doubly warranted” because it was necessary to avoid an
ongoing threat. Id.
¶17 Here, the causal nexus between Tommy and his accomplices’
break-in and the school’s increased security concerns is not too attenuated.
Like the expenses in Brady, the door-pull expenses prevented an ongoing
danger. By breaking into and vandalizing the gymnasium, Tommy and his
accomplices demonstrated that the school district could anticipate similar
break-ins with its previous security system. The district was particularly
vulnerable to Tommy and one of his accomplices, both of whom were still
unidentified at the time of the proposal. Given our deference to the trial
court’s findings, we conclude that sufficient evidence supported its
conclusion that restitution was necessary to rectify the school district’s
vulnerability to similar acts.
¶18 Moreover, the remedy is proportionate. Unlike the Quijada
court, which delved into the fact-specific inquiry of how much a defendant
must pay for the ongoing maintenance of a security system, we are left with
the more straightforward installation question. The door-pulls were a
one-time purchase that improved a demonstrably flawed security system.
Thus, the trial court did not err by concluding that Tommy’s part in the
vandalism was a direct cause of the expense devoted to the anti-vandal
pulls. The cost of the pulls was an economic loss, appropriate as restitution.
B. Sufficient Evidence Supports the Court’s Finding of a Reasonable
Relationship Between the Cost of Purchasing and Installing the
New Doors and the School’s Loss.
¶19 Tommy argues that because the assistant superintendent did
not remember the specific cost, brand, or manufacturer of the doors that the
school district replaced, there was insufficient evidence to justify a
restitution award equal to the value of the new doors.
¶20 We view the facts in the light most favorable to affirming the
juvenile court’s findings. In re Andrew A., 203 Ariz. 585, 586, ¶ 5 (App. 2002).
The juvenile court heard testimony from the assistant superintendent that
he and other school employees had been present to observe the damage to
the gymnasium and had obtained replacement quotes from contractors that
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Decision of the Court
same day based on these observations. The court also heard that the district
provided the insurance company with sufficient documentation to support
its claim. It is not necessary that the superintendent recall from memory the
number of doors, the material from which they were purchased, or their
original price. It is sufficient that there was an adequate foundation for the
admission and consideration of costs to rectify the damage. Further, the
court found the superintendent’s testimony credible that, at the time of the
replacement, the school’s order was to make the replacements “like for
like.” See State v. Stutler, 243 Ariz. 128, 131, ¶ 8 (App. 2017) (victim’s
testimony and loss affidavit are sufficient to support a $900 award in lost
earnings).
CONCLUSION
¶21 We affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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