State v. Morrison , 440 P.3d 942 ( 2019 )

2019 UT App 51THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHAD EVERETT MORRISON,
Appellant.
Opinion
No. 20170885-CA
Filed April 4, 2019
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 161910294
Dayna Moore, Attorney for Appellant
Simarjit S. Gill and Ann P. Boyle, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
POHLMAN, Judge:
¶1 As part of a criminal sentence, a defendant may be
ordered to make restitution for any pecuniary damages
proximately caused by his crime. Chad Everett Morrison, after
pleading guilty to assaulting his roommate (Roommate), was
ordered to pay Roommate’s moving expenses and lost wages.
But Roommate was already planning on moving, and a private
investigator testified that Roommate was let go from a
temporary assignment a day after the assault due to a reduced
workload. Morrison now appeals, contending that these facts
demonstrate that the moving expenses and lost wages were not
proximately caused by his crime. We affirm in part and reverse
in part.
State v. Morrison
BACKGROUND
¶2 On September 29, 2016, Morrison pushed Roommate into
a wall and punched him several times. In the altercation, a
television was destroyed, and a dresser and a nightstand were
damaged. The State charged Morrison with assault and criminal
mischief.
¶3 Morrison pled guilty to assault, and in exchange the
State dismissed the criminal mischief charge. Morrison
stipulated, however, to paying restitution—which was thought
to be no more than $500 based on the charging document—on
the dismissed criminal mischief charge. After sentencing,
the State filed a motion for restitution in the amount of $6,818.42.
Morrison disputed that figure, and the district court
scheduled an evidentiary hearing to determine the appropriate
restitution amount. 1
¶4 At the hearing, Roommate testified that he had “to move
as a result” of the assault. 2 Expenses for the move included $35
for an application fee, $200 for a security deposit, $333.25 for the
1. Morrison initially failed to respond to the State’s motion for
restitution, and the district court ordered Morrison to pay the
full amount requested by the State. The court later granted his
motion to vacate the restitution order, and the matter was set for
an evidentiary hearing.
2. Morrison makes no distinction between damages that were
proximately caused by the assault as opposed to criminal
mischief. Thus, we also make no distinction and, for simplicity,
refer to the assault and the criminal mischief charges collectively
as “assault,” unless context suggests otherwise.
20170885-CA 2 2019 UT App 51State v. Morrison
services of a professional moving company, and $70.28 for one
month’s increased rent. 3
¶5 On cross-examination, Roommate conceded that he and
his girlfriend (Girlfriend) “had planned to leave before [the
assault] happened.” According to his testimony, Roommate and
Girlfriend “really wanted [their] own place” and had told
Morrison that they “planned to move in the next couple of
months.” Because Girlfriend was pregnant, Roommate hired a
professional moving company that “moved everything.” When
asked whether he tried to “rent a truck” in order to move
himself, Roommate responded, “No. There was me and a
pregnant female to move an entire apartment, so . . . .”
¶6 Roommate also testified that he “missed work” due to
the assault. Roommate worked with a staffing agency
and requested reimbursement for a total of ten days of
lost wages, explaining that four days were used to “recover[]
from the assault itself” and the “six additional days” were
for “moving, finding apartments and making sure [they] had
a place to live come the first of the month.” 4 Roommate testified
that he was told by the staffing agency to take “as much time
as [he] needed to get everything figured out.” On cross-
3. Roommate paid $500 a month while living with Morrison. The
first month’s rent at his new apartment was $570.28.
4. The district court stated at the hearing that “most the wages,
or the moving expenses are reasonable, and [it was] not
struggling with those.” The court did struggle, however, “with
the six additional days” requested by Roommate. The prosecutor
agreed that the six additional days were not allowed under the
statute but argued that “even when [the] Defense filed their
objection [to the restitution amount,] . . . they acknowledged that
the four days was probably reasonable.”
20170885-CA 3 2019 UT App 51State v. Morrison
examination, Roommate testified that he had a temporary
position through the staffing agency at a company
(the Company). But Roommate also testified that he was
“supposed to get hired on there” permanently and that
“[b]ecause [he] was unable to show up for those four days,” the
Company “decided that [it was not] going to move forward with
[his] contract.”
¶7 The defense called a private investigator who testified
that he spoke with the staffing agency and that Roommate’s
temporary position at the Company was terminated “early
because of workload.” The investigator testified that
Roommate’s temporary position “ended on September 30th of
2016 . . . because they ran out of work or they didn’t need an
extra person.”
¶8 The district court entered findings of fact and
conclusions of law. As for the moving costs, the court found
that although Roommate and Girlfriend “were planning to
move anyway,” Morrison’s assault “caused the victim and his
girlfriend to move earlier than planned” and “that it is difficult
and more expensive to be forced to relocate early rather than
as planned.” It then found the $35 application fee, the
$200 security deposit, the $333.25 professional-movers expense,
and the $70.28 increased-rent expense were reasonable.
It calculated the total amount of moving expenses to be $638.53.
¶9 As for lost wages, the court found that there was some
“indication [that Roommate] would have been able to work
somewhere else even if the job was terminated” at the Company.
The court also found that Roommate “testified that he was hired
by the staffing agency and worked regularly and that he did not
work for four days because of [Morrison’s] actions.” The court
found that the cost of missing four days of work was $464.
Adding all the damages together, and finding that Morrison was
20170885-CA 4 2019 UT App 51State v. Morrison
able to pay, the court ordered complete and court-ordered
restitution in the amount of $1,397.43. 5
¶10 Morrison appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Morrison contends that “neither the assault nor the
dismissed criminal mischief charge was the proximate cause” of
Roommate’s move or termination from his temporary work
assignment. He therefore asserts that the district court erred in
awarding damages for Roommate’s moving expenses and lost
wages. An appellate court “will not disturb a district court’s
restitution determination unless the court exceeds the authority
prescribed by law or abuses its discretion.” State v. Ogden, 2018
UT 8, ¶ 25, 416 P.3d 1132 (cleaned up). We have discerned an
abuse of discretion when the district court granted the victim “a
windfall” by, for example, failing to limit restitution “to that
amount which is necessary to compensate a victim for losses
caused by the defendant.” State v. England, 2017 UT App 170,
¶ 15, 405 P.3d 848 (cleaned up).
ANALYSIS
¶12 “When a defendant is convicted of criminal activity that
has resulted in pecuniary damages, . . . the court shall order that
the defendant make restitution” to the victims of his crime. Utah
Code Ann. § 77-38a-302(1) (LexisNexis Supp. 2016) (emphasis
added). Restitution comes in two forms: complete and court-
ordered. Id. § 77-38a-302(2). Court-ordered restitution is
5. This amount included $150 for a broken television and $144.90
to replace Roommate’s damaged nightstand. Morrison does not
challenge those portions of the decision.
20170885-CA 5 2019 UT App 51State v. Morrison
primarily concerned with what the defendant is able to pay, but
complete restitution means the “restitution necessary to
compensate a victim for all losses caused by the defendant.” Id.§ 77-38a-302(2), (5) (emphasis added). And the terms “resulted
in” and “caused by the defendant” in section 77-38a-302 refer to
proximate cause. State v. Ogden, 2018 UT 8, ¶¶ 32, 39, 416 P.3d
1132.
¶13 Proximate cause includes but-for causation (that is, factual
causation), but it requires “some greater level of connection
between the act and the injury than mere ‘but for’ causation.”
Raab v. Utah Ry., 2009 UT 61, ¶ 23, 221 P.3d 219; see also State v.
Oliver, 2018 UT App 101, ¶ 21, 427 P.3d 495. It also requires
foreseeability; indeed, the general test for proximate cause “is
whether under the particular circumstances the defendant
should have foreseen that his conduct would have exposed
others to an unreasonable risk of harm.” State v. Becker, 2018 UT
App 81, ¶ 13, 427 P.3d 306 (cleaned up). In restitution cases, the
burden is on the State to prove proximate cause. See id. ¶ 12;
Oliver, 2018 UT App 101, ¶ 22; see also State v. Trujillo, 2017 UT
App 151, ¶ 7, 405 P.3d 745 (“It is the State’s burden to prove that
the victim has suffered economic injury and that the injury arose
out of the defendant’s criminal activities.” (cleaned up)),
overruled on other grounds by State v. Ogden, 2018 UT 8, 416 P.3d
1132.
¶14 Morrison contends that the State did not meet its burden
to prove his actions were the proximate cause of either
(1) Roommate’s moving expenses or (2) Roommate’s lost wages.
We agree in part with the first contention but reject the second.
¶15 First, we conclude that although the evidence supports
the district court’s finding that Morrison’s assault caused
Roommate to move earlier than planned, the court erred in
deciding that Morrison’s assault proximately caused all of
Roommate’s moving expenses. As an initial matter, the district
20170885-CA 6 2019 UT App 51State v. Morrison
court did not exceed its discretion in finding that Roommate and
Girlfriend expedited their move by one month. According to
Roommate’s testimony, even before the assault he and Girlfriend
were planning “to move in the next couple of months.”
¶16 But even though the move was accelerated due to the
assault, the pecuniary harm must be tied to the expedited nature
of the move. The $35 application fee and $200 security deposit
do not have any connection to the earlier-than-planned move.
Roommate’s own testimony provided that he and Girlfriend
were “planning to move anyway.” And there was no evidence
connecting the need to pay an application fee or security deposit
to Morrison’s actions, or suggesting that Roommate would not
have incurred those expenses had he moved a month later, as
expected. Similarly, the $333.25 spent on professional movers is
unconnected to the expedited moving date. The district court
found that Roommate “had to hire assistance” because
Girlfriend “was pregnant and unable to help in the move.” But
there was no evidence presented at the restitution hearing that,
had Roommate moved as planned, he would not have hired the
moving company in any event.
¶17 Had the State presented evidence that connected these
expenses to the expedited nature of the move, we would likely
reach a different result. But because there was no evidence tying
these expenses to Roommate’s need to move a month sooner
than planned, there is no basis in the evidence to conclude that
the expenses were proximately caused by the assault. Thus, the
court speculated without a sufficient evidentiary basis that
Roommate incurred the application fee, security deposit, and
professional-movers expense as a result of Morrison’s actions.
See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096(“When the evidence supports more than one possible
conclusion, none more likely than the other, the choice of one
possibility over another can be no more than speculation . . . .”).
Consequently, in awarding pecuniary damages for these
20170885-CA 7 2019 UT App 51State v. Morrison
expenses, the district court granted Roommate “a windfall” and
therefore exceeded its discretion. See State v. England, 2017 UT
App 170, ¶ 15, 405 P.3d 848 (cleaned up); see also State v. Brown,
2009 UT App 285, ¶¶ 11–12, 221 P.3d 273 (reversing a restitution
award for moving expenses when there was no evidence of a
causal connection between the defendant’s crime and the
victim’s relocation), overruled on other grounds by State v. Ogden,
2018 UT 8, 416 P.3d 1132.
¶18 The court, however, properly awarded pecuniary
damages of $70.28 for one month’s increased rent. As the district
court recognized, Roommate’s request for only one month’s
additional rent was an “acknowledgment that [Roommate and
Girlfriend] would have moved in a month.” But unlike the other
expenses, there was evidence to support the court’s conclusion
that this increased rent was proximately caused by the expedited
nature of the move. While living with Morrison, Roommate paid
$500 a month in rent. After the move, Roommate paid $570.28
for the first month’s rent at Girlfriend’s and his new apartment.
Had Roommate and Girlfriend moved as planned one month
later, Roommate might have saved the increased rent. And it
was foreseeable that attacking Roommate, who was already
considering moving, would prompt Roommate to expedite his
move to a new apartment with potentially higher rent. See Becker,
2018 UT App 81, ¶ 13.
¶19 Second, we conclude that the district court did not exceed
its discretion in determining that Morrison’s assault proximately
caused Roommate’s lost wages for four days. Granted, there was
limited evidence given by Roommate at the restitution hearing
that he lost his job at the Company due to missing four days of
work after the assault. And the private investigator hired by
Morrison presented evidence impeaching Roommate’s narrative.
But the district court did not have to accept the impeachment
evidence. “Credibility determinations are within the province of
the [district court]” because a district court “is uniquely
20170885-CA 8 2019 UT App 51State v. Morrison
equipped to make factual findings based exclusively on oral
testimony due to [its] opportunity to view the witnesses
firsthand, to assess their demeanor and to consider their
testimonies in the context of the proceedings as a whole.” Kidd v.
Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200 (cleaned up); see also
Utah R. Civ. P. 52(a)(4) (stating that a “reviewing court must
give due regard to the trial court’s opportunity to judge the
credibility of the witnesses”).
¶20 Roommate testified that he “missed work” due to his
injuries from the assault and that he was told by the staffing
agency to take “as much time as [he] needed to get everything
figured out.” He also testified that he was “supposed to get
hired on” at the Company, but due to missing work—with the
staffing agency’s approval—the Company decided not “to move
forward with [his] contract.” And even if Roommate was
terminated early from his temporary assignment with the
Company due to “workload,” Roommate testified that he was
placed at the Company by a staffing agency. The district court
used these facts to infer that Roommate “would have been able
to work somewhere else even if the job [at the Company] was
terminated.” That was a reasonable inference based on
Roommate’s testimony.
¶21 Morrison challenges this conclusion, asserting that the
district court incorrectly “shifted the burden” to him in finding
that Roommate “would have been able to work somewhere else”
when the State did not provide any specific evidence on this
point. Not so. Roommate testified that he was placed by a
staffing agency and “missed work,” and the court inferred that
the staffing agency, who had told Roommate to take the time he
needed to recover, would have placed him somewhere else. If
there were truly no work for Roommate, he would not have
needed the staffing agency’s blessing to take time off. Thus, the
court did not shift the burden. It simply made a reasonable
inference to find that the State had met its burden.
20170885-CA 9 2019 UT App 51State v. Morrison
¶22 Further, the district court credited Roommate’s testimony,
but it did not blindly follow it. Roommate testified that he
missed four days to “recover[] from the assault itself” and six
additional days “making sure [he and Girlfriend] had a place to
live.” The court stated that it was “struggling with the six
additional days” but found the four days used “to heal” was
reasonable. It therefore limited its restitution order to the four
days Roommate testified he missed because of Morrison’s
assault. Because the district court “is uniquely equipped to make
factual findings based exclusively on oral testimony,” it did not
exceed its discretion in awarding Roommate his lost wages. Kidd,
2014 UT App 26, ¶ 34 (cleaned up). 6
6. We also note that although there was limited evidence
presented at the restitution hearing on this point, such paucity is
at least partly attributable to Morrison. In his motion seeking to
vacate the district court’s original restitution order, Morrison
conceded that “restitution is . . . appropriate for the four days
[Roommate] was unable to work.” The State contends that
Morrison invited any error by making this concession. At the
restitution hearing, however, Morrison argued that all of
Roommate’s lost wages were “too attenuated” and were “not
appropriate.” With this clarification, we conclude that Morrison
did not “encourage[] the trial court to make an erroneous
ruling,” see State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699, because
it would have been clear to the court after the hearing that
Morrison was not stipulating to four days’ worth of lost wages.
But Morrison’s initial concession, though not inviting the court
to err, did lull the State into thinking that reimbursement for
four days of lost wages was not going to be a point of contention
or require much evidence. The State argued at the hearing that
“even when [the] Defense filed their objection and asked to . . .
set the hearing they acknowledged that the four days was
probably reasonable.” Thus, the limited evidence presented by
(continued…)
20170885-CA 10 2019 UT App 51State v. Morrison
CONCLUSION
¶23 The district court did not err in awarding Roommate
$70.28 for one month’s increased rent and $464 for four days’ lost
wages. But we reverse the district court’s award of restitution for
a $35 housing application fee, a $200 security deposit, and a
$333.25 professional-movers expense. Because Morrison does not
challenge the restitution award of $150 for a broken television
and $144.90 for a damaged nightstand, we remand to the district
court to reduce the restitution order to $829.18, the amount that
covers the pecuniary harm proximately caused by Morrison’s
crime.
(…continued)
the State is understandable, and the district court did not exceed
its discretion in drawing reasonable inferences from the evidence
that was available.
20170885-CA 11 2019 UT App 51