State v. Mooers

2018 UT App 74THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RYAN MOOERS,
Appellant.
Opinion
No. 20140170-CA
Filed April 26, 2018
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 131400410
Nathalie S. Skibine and Heather J. Chesnut,
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 Ryan Mooers was charged with burglary and theft after a
family returned from vacation to find that their house had been
broken into and jewelry and coins stolen. Mooers entered a plea
in abeyance to the theft charge, and the State dropped the
burglary charge. As part of his plea in abeyance, among other
conditions, Mooers was to pay restitution for the stolen items
and for damage to the family’s property that resulted from the
criminal activity. He appeals the restitution order only with
respect to the cost of installing security bars on the bedroom
window used to enter the house, arguing that because the
window did not have security bars prior to the burglary, the bars
“are not economic injury or pecuniary damage, but a security
State v. Mooers
improvement the victims decided to make to their house.” 1 We
agree with Mooers that the expense of security bars is not a
pecuniary damage suffered by the family and vacate the portion
of the restitution order addressing the installation costs.
¶2 The family’s house was burglarized in November 2012. 2
The family’s daughter (Daughter) had a basement bedroom. Its
window was broken, and “there was glass everywhere,” which
damaged the carpet. “[A]pproximately $3,200 of jewelry and
coins” were stolen. A detective checked the records of pawn
stores and found that Mooers “had pawned jewelry [in
November 2012] and that the descriptions appeared to match
jewelry descriptions provided by” the mother (Mother). Mother
“went to the pawn shop, examined what [Mooers] had pawned,
identified it as her property and was able to purchase it back.”
1. Mooers appealed the order of restitution requiring him to pay
for the security bars to this court in 2014. We dismissed that
appeal for lack of jurisdiction, concluding, “[A] restitution order
imposed as a condition of a plea in abeyance agreement, where
the defendant’s plea has not been entered and the defendant has
not been sentenced,” is not a final and appealable order. State v.
Mooers, 2015 UT App 266, ¶ 1, 362 P.3d 282, rev’d by State v.
Mooers, 2017 UT 36. The Utah Supreme Court consolidated
Mooers with a second case, State v. Becker, 2015 UT App 304, 365
P.3d 173, 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
Mooers’s appeal. See id. ¶ 24.
2. Because Mooers pleaded guilty to theft, there was no trial and
resulting transcript, so we recite the facts from the criminal
information, pleadings, as well as the change-of-plea and
restitution hearings.
20140170-CA 2 2018 UT App 74State v. Mooers
¶3 Following the burglary, Daughter no longer felt safe in
her bedroom and “wouldn’t go to the basement by herself.” She
would not sleep in her bedroom and instead “slept on the
couch.” Mother accompanied her whenever Daughter went to
the basement to retrieve her clothes or to do her laundry. One
month after the burglary, Mother and her husband (Father)
decided to install security bars in Daughter’s bedroom window
to “[g]ive her security.” After the bars were installed, Daughter
returned to sleeping in her bedroom.
¶4 Daughter believed that a friend of hers (Friend) might
have been a suspect, as Friend had stolen from her in the past.
Friend “claimed that she had nothing to do with the burglary
and suggested that maybe . . . [Mooers] might be involved.” As
the investigation continued, other individuals came forward to
report that Mooers and Friend had broken into the family’s
house and “[came] out carrying a bunch of stuff” including
“jewelry and coins.” In the declaration of probable cause, a
detective claimed that, when interviewed, Mooers “admitted
that he and [Friend] broke into the house, stole jewelry and that
he pawned it.”
¶5 The State charged Mooers with burglary, a second degree
felony, see Utah Code Ann. § 76-6-202 (LexisNexis 2017), 3 and
theft, a third degree felony, see id. § 76-6-404. As the result of a
plea agreement, Mooers agreed to plead guilty to theft, attend a
theft class, and pay restitution to the family. In exchange, the
State agreed to drop the burglary charge. The district court
accepted Mooers’s plea and held it in abeyance for eighteen
months. The court “[gave] the State 90 days to determine the
restitution.”
3. 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. State v. Rackham, 2016 UT App 167, ¶ 9 n.3, 381 P.3d
1161.
20140170-CA 3 2018 UT App 74State v. Mooers
¶6 The State filed a motion for restitution in the amount of
$5,760.50—$4,660.50 to cover the “value of stolen items, window
repair, and carpet replacement,” and $1,100 for “the cost of
placing bars on the window used to access the stolen items.” The
court set a restitution hearing at which Daughter and Mother
testified about why the security bars were installed on
Daughter’s bedroom window. Following the hearing, “the court
continued the matter for briefing,” and the State argued in its
brief that, based on the “modified but for” test 4 for determining
whether restitution is appropriate, the need for these security
bars would not have been necessary if the burglary had not
occurred; Mooers admitted to aiding others into the house; and
the family paid the down payment for the security bars within
weeks of the burglary.
¶7 Mooers objected to the State’s motion, arguing that the
$1,100 cost for the security bars was not pecuniary damages but
were instead “voluntary expense[s] incurred by the . . . family
after the theft had taken place.” He also argued that, “while the
theft may have influenced the family’s decision to incur this
expense, this does not make it ‘pecuniary damages’ resulting
from Mr. Mooers’s ‘criminal activity.’” (Quoting Utah Code
Ann. § 76-3-201(4)(a) (LexisNexis 2017).) In addition, he argued
4. In February 2018, the Utah Supreme Court determined that
courts should apply the proximate cause test when determining
whether a defendant’s criminal activity has resulted in pecuniary
damages. State v. Ogden, 2018 UT 8, ¶ 48. In doing so, the
holding “necessarily overrule[d] the body of court of appeals
precedent applying a ‘modified but for’ test.” Id. ¶ 48 n.12.
Although the district court determined that Mooers should pay
restitution for installing the security bars under the “modified
but for” test, we need not analyze whether the cost of installing
security bars was proper under the proximate cause test because
we conclude that this cost was improperly included among the
pecuniary damages. See infra ¶¶ 11–15.
20140170-CA 4 2018 UT App 74State v. Mooers
that because he “did not plead guilty to burglary[,] he is not
responsible for the cost of installing the security bars.”
¶8 The district court concluded that restitution for the cost of
installing the security bars on the bedroom window was
appropriate. It found that Daughter’s fear “was a direct result of
the break-in for which [Mooers] admitted criminal
responsibility,” even though he did not plead guilty to burglary.
Because the family “would not have paid to install security bars
except for the criminal conduct for which [Mooers] accepted
responsibility,” and because the decision to install the bars was
not factually or temporally attenuated from the criminal
conduct, the court ordered Mooers to pay the entire restitution
amount requested by the State. Mooers appeals.
¶9 Mooers contends the district court exceeded its discretion
in ordering restitution for installing security bars on Daughter’s
bedroom window because they “are not an economic injury or
pecuniary damage,” as required by Utah Code section 77-38a-
302, but they are instead “a security improvement” to the house.
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 “When a defendant enters into a plea disposition or is
convicted of criminal activity that has resulted in pecuniary
damages, . . . the court shall order that the defendant make
restitution to victims of crime . . . , or for conduct for which the
defendant has agreed to make restitution as part of a plea
disposition.” Utah Code Ann. § 77-38a-302 (LexisNexis 2017); see
also id. § 76-3-201(4)(a). 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) (LexisNexis 2017). “By statute,
[pecuniary] damages include ‘the fair market value of property
taken, destroyed, broken, or otherwise harmed,’” but they
exclude “‘punitive or exemplary damages and pain and
20140170-CA 5 2018 UT App 74State v. Mooers
suffering.’” State v. Brown, 2014 UT 48, ¶ 22, 342 P.3d 239(quoting Utah Code Ann. § 77-38a-102(6)).
¶11 In this case, we must determine whether, under the plain
language of Utah Code section 77-38a-102(6), security bars
installed after a burglary and theft are a pecuniary damage for
purposes of restitution. We conclude that they are not.
¶12 “When interpreting statutes, we first look to the plain
language of the statute and give effect to that language unless it
is ambiguous.” State v. Jeffries, 2009 UT 57, ¶ 7, 217 P.3d 265. The
plain language of Utah Code section 77-38a-102(6) is not
ambiguous. It provides that pecuniary damages, or
“demonstrable economic injury[,] . . . includes the fair market
value of property taken, destroyed, broken, or otherwise
harmed.” Utah Code Ann. § 77-38a-102(6). It also explicitly
excludes “punitive or exemplary damages and pain and
suffering.” 5
¶13 Black’s Law Dictionary defines “pecuniary” as “ relating
to, or consisting of money,” Pecuniary, Black’s Law Dictionary
(10th ed. 2014), and “damages” as “[m]oney claimed by, or
ordered to be paid to, a person as compensation for loss or
injury,” Damages, Black’s Law Dictionary (10th ed. 2014).
5. “[P]unitive damages” are “awarded in addition to actual
damages” and “are intended to punish and thereby deter
blameworthy conduct.” Punitive Damages, Black’s Law
Dictionary (10th ed. 2014). “[A]ctual damages” are “awarded to
a complainant to compensate for a proven injury or loss.” Actual
Damages, Black’s Law Dictionary (10th ed. 2014). “Pain and
suffering” is defined as “[p]hysical discomfort or emotional
distress compensable as an element of noneconomic damages.”
Pain and Suffering, Black’s Law Dictionary (10th ed. 2014). And
“noneconomic damages” are referred to as “nonpecuniary
damages.” Noneconomic Damages, Black’s Law Dictionary (10th
ed. 2014).
20140170-CA 6 2018 UT App 74State v. Mooers
“[L]oss” is defined as “the act or fact of losing,” Loss, Webster’s
Third New International Dictionary (1968), as well as “the
disappearance or diminution of value,” Loss, Black’s Law
Dictionary (10th ed. 2014). And “injury” is defined as “[a]ny
harm or damage.” Injury, Black’s Law Dictionary (10th ed. 2014).
¶14 Here, Daughter’s bedroom window did not have security
bars on it prior to the burglary and theft. Therefore no security
bars were damaged when the bedroom window was broken to
enter the house and commit the crimes. Without damage, loss,
harm, or an economic injury to property, a court cannot order
restitution to compensate the victim. See Brown, 2014 UT 48, ¶ 22.
¶15 Contrary to the State’s argument that this is a “mental
health care . . . devi[ce]” that was “demonstrably economic and
objectively verifiable” by the receipts, the record does not reflect
that family installed the security bars based on a mental health
professional’s advice or prescription. Instead, Mother and Father
determined that it would be best to install the bars as additional
security and to give Daughter a sense of safety. See Utah Code
Ann. § 77-38a-302(5)(b)(ii) (providing that, “[i]n determining the
monetary sum and other conditions for complete restitution, the
court shall consider all relevant facts, including . . . the cost of
necessary medical and related professional services and devices
relating to physical or mental health care”). Any conclusion that
the family could recover restitution for the security bars as a
health care related device without evidence that a health care
professional prescribed or advised the use of the security bars
would allow victims to circumvent the restitution requirements
and claim many noneconomic damages following criminal
activity as “necessary medical and related professional service[]
[or] device[] relating to physical or mental health care.” See id.For example, the purchase of a new weapon for the defense of
the house or the installation of new security cameras could be
included under this proffered application. This does not comport
with our restitution statutes. Cf. State v. Ogden, 2018 UT 8, ¶ 66
(reminding “district court[s] to ensure that . . . restitution
20140170-CA 7 2018 UT App 74State v. Mooers
calculation[s rest] on non-speculative evidence of losses that [a
victim] has incurred or will likely incur”). 6
¶16 We conclude that the district court exceeded its discretion
when it ordered Mooers to pay restitution for the cost of
6. The State explains that, under the proximate cause test, where
foreseeability of an injury to a victim based on a defendant’s
criminal conduct applies, other jurisdictions have determined
that it is “foreseeable that a victim would take steps to remedy
her fear and lost sense of security after her home has been
burglarized.” See e.g., In re M.N., 2017-Ohio-7302, ¶¶ 13–14 (Ohio
Ct. App. 2017) (determining that a restitution award for costs “to
rekey the home and car . . . were necessary to restore the security
that [the victim] had prior to the offense”); State v. Christy, 383
P.3d 406, 407–08 (Or. Ct. App. 2016) (explaining that Oregon
courts “may award restitution for expenses incurred by a victim
in implementing security measures in response to a defendant’s
crimes—provided, of course, that there is evidence sufficient to
support a finding that the defendant’s criminal activities were a
‘but for’ cause of the expenses” incurred and determining a
restitution award for installing a security system after a burglary
was appropriate because it was “reasonably foreseeable” that the
victim would install it “so that she could live safely in her own
house”). We decline to address whether Utah courts should
adopt a similar standard. The State addressed this argument in
its supplemental brief and has framed the issue under the
proximate cause test’s foreseeability element, which we have
declined to address. See supra note 4. Because Mooers has not
had an opportunity to rebut this argument and because it was
framed under the “foreseeability” of an “injury” that resulted
from Mooers’s criminal actions, we leave the discussion for
another day. Of course, in the meantime, our legislature might
choose to amend section 77-38a-302 to specifically authorize
“restitution for expenses incurred by a victim in implementing
security measures in response to a defendant’s crimes.” See
Christy, 383 P.3d at 407.
20140170-CA 8 2018 UT App 74State v. Mooers
installing security bars on a bedroom window after the burglary
and theft. The court’s order goes against the plain meaning of
the statute’s definition of pecuniary damages and is therefore
unreasonable under Utah Code section 77-38a-302. See State v.
Corbitt, 2003 UT App 417, ¶ 6, 82 P.3d 211 (“[We] will not disturb
a [district] court’s restitution order unless it exceeds that
prescribed by law or [the court] otherwise abused its discretion.”
(quotation simplified)). Unlike the broken window, the damaged
carpet, and the stolen items, the security bars had not yet been
installed and were therefore not “taken, destroyed, broken, or
otherwise harmed.” See Utah Code Ann. § 77-38a-102(6).
¶17 We therefore vacate the district court’s order of restitution
with respect to the cost of installing the security bars on
Daughter’s bedroom window and remand for the court to enter
an amended restitution order that includes payment for only the
broken window, damaged carpet, and stolen items. 7
7. Mooers also challenges the restitution order requiring him to
pay for the installation of the security bars based on his
argument that he pleaded guilty only to theft, not burglary. This
argument is specious. He admitted during a police interview
that “he and [Friend] broke into the house, stole jewelry and that
he pawned it.” He also admitted in his signed plea statement
and at the change-of-plea hearing that he “aided others into
entering a home and taking coin and jewelry.” In addition,
Mooers agreed to pay restitution to any victim for his conduct,
“including any restitution that may be owed on charges that are
dismissed as part of [this] plea agreement,” which included his
burglary charge. Had we determined that the installation of the
security bars was a pecuniary damage, Mooers’s argument in
this respect would not be persuasive and we would proceed
with applying the proximate cause test to the order of
restitution.
20140170-CA 9 2018 UT App 74