Lead Opinion
¶1 Chandra Parry Oliver's boyfriend (Boyfriend) invited two young men-one eighteen years old, the other nineteen years old-over to Oliver's house for the purpose of smoking methamphetamine. After they arrived, all four of them smoked methamphetamine together. Some time later, the young men went into Oliver's bathroom and, without Oliver's knowledge, swallowed additional methamphetamine. One of the young men (Victim) overdosed, and later died.
¶2 Oliver eventually pled guilty to reckless endangerment, a class A misdemeanor. The district court, at the State's request, ordered Oliver to pay Victim's medical and funeral expenses as restitution. Oliver appeals that restitution order, arguing that the State did not present sufficient evidence demonstrating that her actions were the proximate cause of Victim's death, and therefore she should not have been required to pay restitution. We find Oliver's arguments persuasive, at least in part, and therefore vacate the restitution order and remand this case to the district court for further proceedings.
BACKGROUND
¶3 On November 16, 2013, Victim (an eighteen-year-old male) and his friend (Friend) called Boyfriend and asked if they could come over to the house in which Oliver and Boyfriend lived so that they could "get warm" and "smoke a bowl of [m]eth." Boyfriend *498granted them permission, and so Victim and Friend came over to Oliver's house. Once they arrived, Oliver, Boyfriend, Victim, and Friend all smoked methamphetamine together.
¶4 Soon thereafter, Victim and Friend went into the bathroom at Oliver's house. At the time, Oliver did not know what they were doing in the bathroom, but as it turned out they spent some of their time there ingesting additional methamphetamine through a method known as "parachuting," a technique where an individual wraps methamphetamine in toilet paper and then swallows it.
¶5 Later, after emerging from the bathroom, Victim and Friend both "started acting funny." Oliver and Boyfriend "had another guy get [Victim] out to his car and go to the hospital," but for reasons unclear from the record, that effort failed. Eventually, another person present called 911, and the paramedics came and took Victim to the hospital. Victim later died.
¶6 The State filed six criminal charges against Oliver, including one count of obstructing justice, a third degree felony, see
¶7 On the date set for preliminary hearing, Oliver elected to waive her right to that hearing and enter her plea instead. Before it accepted Oliver's plea, however, the district court asked about the factual basis for the plea, and Oliver's counsel stated as follows:
On November 16th of 2013 in Salt Lake County, Ms. Oliver was in possession and she used methamphetamine. Additionally, she was residing in a home where she allowed two other people to use methamphetamine that resulted in the overdose of one of those ... individuals.
(Emphasis added.) After Oliver's counsel recited the factual basis, the district court asked Oliver, "Is that what happened, Ms. Oliver?" Oliver answered "Yes." At that point, the court accepted and entered Oliver's guilty plea.
¶8 After Oliver pled guilty, she provided the following statement to probation officers who were preparing a presentence report for the court:
[Friend and Victim] had called my boyfriend at the times phone to see if they could come into our house to get warm + smoke a bowl of Meth and he told them yes. They came in and we all smoked and then [Friend and Victim] went into the bathroom and swallowed some meth and I did not know this at the time then the guys both started acting funny and we had another guy [there] get [Victim] out to his car and go to the hospital but then [another friend] [ended] up having to call 911 and the paramedics came + took [Victim] to [the] hospital where he later had passed.
¶9 The district court held a sentencing hearing in February 2016. The court ordered Oliver to serve 120 days in jail (with the remainder of two one-year jail terms suspended), and to serve twenty-four months on probation, and imposed various terms and conditions of probation. The court ordered that the issue of restitution would "remain open" for ninety days. A few weeks later, the State filed a motion seeking an order compelling Oliver to pay $14,151.64 in restitution to Victim's father to pay for Victim's hospital and funeral expenses. The State also asked the court to order that the restitution amount be paid jointly and severally by Oliver and Boyfriend.
¶10 Oliver objected to the State's restitution request, arguing generally that she "did not admit to facts which constitute the proximate *499cause of [Victim's] death." Specifically, Oliver's causation objection was based entirely upon a superseding cause argument, in which Oliver asserted that Victim's "own ingestion of a large quantity of methamphetamine ... was the proximate cause of his death" and that it was Victim's own decision to swallow methamphetamine that was "the direct and proximate cause of his hospitalization and ultimate death resulting in the restitution amounts." Oliver made no specific argument that the State had failed to prove a causal link between Victim's overdose and Victim's death, and made no specific argument that she should not be required to pay restitution jointly and severally with Boyfriend.
¶11 After briefing, the district court held a hearing on the State's restitution request. The hearing was very short; the entire transcript is only six pages long. Neither side presented any actual evidence, whether through witnesses or through documents, and the court heard no testimony from any witness. Instead, attorneys for the State and for Oliver made legal arguments regarding causation. Oliver's attorney reiterated the superseding cause argument made in the briefing, arguing generally that Oliver's conduct was not "the proximate cause of [Victim's] death," and arguing specifically that "the proximate cause of [Victim's] death unfortunately and practically was his own independent decision to ingest a lethal quantity of methamphetamine." As in her briefing, Oliver made no specific argument that the State had failed to demonstrate a causal link between the overdose and the death and made no specific argument about joint and several liability. At the conclusion of the hearing, the district court took the matter under advisement.
¶12 About a week later, the district court issued a decision granting the State's request for restitution, and ordering Oliver to pay Victim's hospital and funeral expenses. The court reasoned that Oliver "allowed the victim to come to her home to smoke methamphetamine" and that "[t]his in itself was recklessly engaging in conduct that created a substantial risk of death or serious bodily injury to the victim." The court added that "[i]t was also foreseeable that allowing someone to ingest methamphetamine either by smoking or swallowing could lead to death or serious bodily injury."
ISSUES, STANDARDS OF REVIEW, AND PRESERVATION
¶13 Oliver now appeals the district court's restitution order, and asks us to consider two issues. First, Oliver argues that the district court should not have ordered her to pay restitution, because (according to Oliver) the State failed to present sufficient evidence to prove that Oliver's actions were the proximate cause of Victim's overdose or death. The State asserts that this entire argument is unpreserved. To preserve an issue for appellate review, the issue "must be specifically raised, in a timely manner, and must be supported by evidence and relevant legal authority." Donjuan v. McDermott ,
¶14 The lack-of-causation argument that Oliver advances on appeal has two components: (1) that the State failed to present sufficient evidence of a causal link between Oliver's actions and Victim's overdose, and (2) that the State failed to present sufficient evidence of a causal link between Victim's overdose and Victim's death. As we explain below, the second part of Oliver's challenge on appeal-that there is not a sufficient causal link between Victim's overdose and Victim's death-was not preserved below; indeed, we conclude that any error that the district court may have made on this point was invited by Oliver. Therefore, we cannot disturb it on appeal.
¶15 The other part of Oliver's lack-of-causation argument, however, was preserved. As discussed below, we agree with Oliver that she adequately presented to the district court her argument, now advanced on appeal, that the State failed to present evidence of a sufficient causal link between Oliver's *500conduct and Victim's overdose. Accordingly, we review that part of the district court's restitution determination as we would ordinarily do. "[I]n the case of restitution, a reviewing court will not disturb a district court's determination unless the court exceeds the authority prescribed by law or abuses its discretion." State v. Laycock ,
¶16 Second, Oliver argues that the district court erred by ordering that the restitution be paid jointly and severally by and between Oliver and Boyfriend. Oliver contends that she preserved this argument for appeal when her counsel "argued repeatedly that ... Oliver could only be held liable for pecuniary damages that were proximately caused by her admitted criminal actions, not the actions of others." The State disagrees, and points out that Oliver "cites no place where she pointed the trial court to the statutory authority she now says clearly shielded her from joint and several liability." We agree with the State that Oliver did not preserve this second argument for appeal.
¶17 In opposition to the State's restitution request, Oliver argued generally that she did not proximately cause Victim's death, and argued specifically that Victim's own conduct was a superseding cause of his death. She did not explicitly alert the district court to her position that she could not be jointly and severally liable with Boyfriend; nor did she cite any legal authority in support of the legal theory she now advances on appeal. And at oral argument before the district court, Oliver made the same arguments that she made in her briefing in opposition to the State's restitution request. As with her briefing, during oral argument Oliver did not specifically argue that she could not be jointly and severally liable with Boyfriend. We conclude that Oliver's general proximate causation challenge was not sufficiently specific to alert the district court that Oliver intended to raise the legal theory that she could not be jointly and severally liable with Boyfriend. Therefore, the issue is unpreserved.
¶18 Oliver nonetheless asks us to review this issue for plain error. To prevail under plain error review, Oliver must establish that (1) an error exists, (2) the error should have been obvious, and (3) the error prejudiced her. Id. ¶20.
ANALYSIS
I. Proximate Causation
¶19 Under Utah's Crime Victims Restitution Act,
¶20 While the statute certainly requires some causal connection between the crime and the pecuniary damages, see
¶21 Proximate cause has two elements. First, but-for causation must be present; indeed, 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 ,
¶22 A defendant may, of course, agree (for instance, as part of a plea bargain) that a particular category of restitution was proximately caused by her criminal activity, and may even agree to pay a specific amount of restitution. See, e.g. , State v. Bickley ,
¶23 In this case, however, the factual record is scant: Oliver waived her right to a preliminary hearing, no trial was ever held, and the State-the party bearing the burden to prove the necessary causal link-put no evidence into the record at the restitution hearing. Indeed, at that hearing, neither party called any witnesses to testify, and neither party offered any exhibits into evidence.
¶24 Given the state of the record, the State conceded at oral argument that the only actual facts properly before the court must be drawn from three sources: (a) facts which are necessarily part of the elements of the crimes to which Oliver pled guilty; (b) the "factual basis" for Oliver's plea, as stated on the record at the change of plea hearing; and (c) the statement Oliver provided to probation officers in connection with the preparation of her presentence report.
A. The Causal Link Between the Overdose and Victim's Death
¶25 We first examine Oliver's argument that the State failed to present sufficient evidence to prove a causal link between Victim's overdose and Victim's eventual death. Even assuming, without deciding, that no such evidence was introduced into the record before the district court,
¶26 Significantly, at no point in her briefing or argument before the district court did Oliver ever assert that the State had failed to demonstrate the requisite causal link between Victim's overdose and his death. Instead, Oliver effectively admitted the fact that Victim died of an overdose of methamphetamine, asserting in her briefing before the district court that it was Victim's "own ingestion of a large quantity of methamphetamine that was the proximate cause of his death." Oliver took this same position at the restitution hearing, arguing there that "[t]he proximate cause of [Victim's] death unfortunately and practically was his own independent decision to ingest a lethal quantity of methamphetamine." While these arguments certainly raise a challenge to the strength of the causal link between Oliver's own actions and Victim's overdose, they do not call into question-and, indeed, effectively concede-the causal link between Victim's overdose and his death. Under these circumstances, the argument Oliver makes now, on appeal, that there is no evidence of such a causal link is not only unpreserved for appellate review, but Oliver invited any error that might exist in the district court's ruling in this regard.
¶27 "Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous *503ruling." State v. McNeil ,
¶28 Here, Oliver invited any error in the district court's ruling by assuming-and even arguing to the district court-that there existed a sufficient causal link between Victim's overdose and his death. While we are not suggesting that Oliver was intentionally attempting to mislead the district court, Oliver's arguments-intentionally or not-did indicate that Oliver was not contesting the existence of a causal link between Victim's overdose and Victim's death. Had Oliver taken the position, before the district court, that she considered the State's proof of a causal link between the overdose and the death insufficient, the State could have easily taken steps at the restitution hearing (such as introducing the autopsy report into evidence or calling the medical examiner as a witness) to attempt to prove that causal link.
¶29 Accordingly, we conclude that Oliver invited this claim of error, and we will therefore not address it further. We take it as an established fact, then, that Victim died as a proximate result of an overdose of methamphetamine.
B. The Causal Link Between Oliver's Conduct and Victim's Overdose
¶30 While Oliver cannot here challenge the strength of the causal link between Victim's overdose and his death, Oliver can
*504¶31 As noted above, proximate cause contains two basic elements: (1) but-for causation, and (2) foreseeability. See Dee ,
¶32 Oliver argues, however, that the causal nexus is too attenuated to constitute proximate cause. Specifically, Oliver asserts that Victim died not from smoking methamphetamine together with her and Boyfriend but, rather, died from his own later additional oral ingestion of methamphetamine in the bathroom, events she maintains she knew nothing about and did not sanction. As she puts it, she "did not allow [Victim] to parachute additional amounts of methamphetamine" and "could not have foreseen that [Victim] would secretly swallow a dangerous amount of methamphetamine in addition to smoking."
¶33 Although Oliver does not phrase it in precisely this way, she is effectively arguing that a "superseding cause" broke the chain of causation.
¶34 This doctrine, however, only applies to relieve the original negligent actor of liability when the subsequent negligent act is not "reasonably foreseeable" to the original actor. Steffensen ,
¶35 The State asserts that the requisite causal link between Oliver's actions and Victim's death is present here, because "Defendant's admissions that she allowed Victim in her home to use methamphetamine and that Victim overdosed as a result establish[ ] that Defendant was at least a substantial causative factor in Victim's death." But the State's argument misses the mark, because even if we were to assume that Oliver's actions were a "substantial causative factor" in Victim's death, see McCorvey v. Utah State Dep't of Transp. ,
¶36 And the district court simply did not meaningfully engage with Oliver's argument, explicitly made below, that Victim's own actions constituted a superseding cause of his death. The district court's ruling on the subject comprised one paragraph, as follows:
While the victim did ingest the methamphetamine, that did not absolve [Oliver] of her culpability for the pecuniary damages. By her own statement, she allowed the victim to come to her home to smoke methamphetamine. This in itself was recklessly engaging in conduct that created a substantial risk of death or serious bodily injury to the victim; allowing and abetting someone to ingest methamphetamine is inherently risky. It was also foreseeable that allowing someone to ingest methamphetamine either by smoking or swallowing could lead to death or serious bodily injury.
While the district court did generally discuss whether Victim's death was or should have been foreseeable to Oliver, the district court did not specifically discuss whether Victim's actions in parachuting methamphetamine were or should have been foreseeable to Oliver, or whether those actions were "extraordinary." See Steffensen ,
¶37 We could nevertheless affirm the district court's ruling if we were convinced that the record on appeal supported a determination that Victim's actions in parachuting methamphetamine were not extraordinary and were (or should have been) foreseeable to Oliver. See Bailey v. Bayles ,
¶38 As noted above, the record in this case is spare, and allows us to draw facts from only three sources: any facts necessarily implied by Oliver's plea; the one brief paragraph of facts Oliver admitted during the plea colloquy; and Oliver's personal statement to probation officers. The State made no effort to supplement that factual record through testimony or documents. These factual sources tell us almost nothing about whether Victim's actions in parachuting methamphetamine were extraordinary, or whether they should have been foreseeable to Oliver. While it is possible that such a conclusion could reasonably be drawn after a more complete restitution hearing on remand, the record before us now hardly compels the conclusion that Victim's actions were not extraordinary and were (or should have been) foreseeable to Oliver.
¶39 The district court did not hear testimony from Oliver, and therefore we know very little about whether Oliver actually could have foreseen that Victim and Friend would, after smoking methamphetamine, retreat to the bathroom for the purpose of parachuting additional methamphetamine. We know from her statement to the probation officers that she "did not know" that Victim and Friend were going to swallow additional methamphetamine. But we do not know whether Victim and Friend had ever done such a thing before; whether Oliver knew that Victim and Friend were prone to such activity; whether Oliver had ever parachuted methamphetamine before; or whether Oliver knew that parachuting methamphetamine was even a thing.
¶40 The district court likewise did not hear any evidence about parachuting in general, other than the fact that Victim and Friend had used that method to ingest additional methamphetamine on the day in question. There was no testimony that, for instance, parachuting is a common way of ingesting methamphetamine; no witness, expert or lay, informed the district court that persons familiar with using methamphetamine would likely know about, and be able to foresee the probability of, persons ingesting the drug by swallowing it.
¶41 Had the district court made a factual finding, based on competent evidence, that Victim's actions were foreseeable, we would have deferred to such a finding. But the district court made no such determination, and we are unable to affirm on alternative grounds because the record before us does not compel the conclusion that Oliver reasonably should have foreseen Victim's actions.
II. Joint and Several Liability
¶42 Oliver next argues that the district court erred in holding her jointly and severally liable with Boyfriend for the full amount of the restitution. As discussed above, this issue is unpreserved. Therefore, we review it for plain error. To prevail under a plain error review, Oliver must establish that (1) an error exists, (2) the error should have been obvious, and (3) the error prejudiced her. Johnson ,
¶43 "For an error to be obvious to the trial court, the party arguing for the exception to preservation must show that the law governing the error was clear or plainly settled at the time the alleged error was made." Id. ¶ 21 (quotation simplified); see also State v. Ross ,
CONCLUSION
¶44 For the reasons set forth herein, we vacate the district court's restitution order, and remand this case to the district court for additional restitution proceedings consistent with this opinion, including potentially a new restitution hearing, during which the district court should reconsider the question of whether there exists a sufficient causal link between Oliver's actions and Victim's overdose, and should specifically consider whether Victim's actions in parachuting methamphetamine were a superseding cause of his death.
Notes
Boyfriend also faced criminal charges stemming from the same incident, and eventually pled guilty to one count of reckless endangerment, a class A misdemeanor.
The entire Crime Victims Restitution Act is codified at Utah Code sections 77-38a-101 to -601.
Under our old "modified but-for" test, criminal conduct can be said to "result[ ] in" pecuniary damages when "(1) the damages would not have occurred but for the conduct ... and (2) the causal nexus between the [criminal] conduct and the loss ... is not too attenuated (either factually or temporally)." State v. Gibson ,
We are unaware of any Utah appellate opinions discussing the level of proof required to prove restitution in a criminal case, and the operative statute (the Crime Victims Restitution Act) provides no guidance on the issue. However, in federal courts, and in other state jurisdictions of which we are aware, the "[g]overnment bears the burden of proving" the restitution amount, including the requisite causal link, "by the preponderance of the evidence." See United States v. Wells ,
The facts recited in the Background section, above, come from these sources.
Based on our review of the record, Oliver's argument that the record contains no admissible evidence linking Victim's overdose with Victim's death appears to be correct. None of the three sources of facts contained in the thin record includes any actual evidence that Victim died of a drug overdose. One cannot infer a causal link from Oliver's plea to reckless endangerment, or from Oliver's statements to either the district court at the plea hearing or to probation officers during the preparation of her presentence report. The presentence report refers to an "autopsy [that] showed [that Victim] died due to drug toxicity," but the State concedes that the portion of the presentence report that references the "autopsy" is inadmissible, and no party sought to admit any such report before the district court.
For this reason, our preservation doctrines apply here as well, rendering Oliver's specific argument here unpreserved. See Patterson v. Patterson ,
On remand, the existence of a sufficient causal relationship between Victim's overdose and Victim's death must be taken as established, because that issue is now the law of the case. "[U]nder the law of the case doctrine, a decision made on an issue during one stage of a case is binding on successive stages of the same litigation." IHC Health Services, Inc. v. D & K Mgmt., Inc. ,
In its brief, the State argued that Oliver's general causation argument was unpreserved, because Oliver phrased her arguments to the district court in terms of "proximate causation" rather than in terms of the then-applicable "modified but-for" causation standard. Oliver, however, was ahead of her time-as noted, in Ogden our supreme court repudiated the "modified but-for" test and held that principles of proximate causation are to be applied in the restitution context. See Ogden ,
Before the district court, Oliver phrased her superseding cause argument more explicitly, asserting in her written memorandum that Victim's "decision to ingest methamphetamine was the 'new cause' or the intervening event that was the direct and proximate cause" of his death, and arguing during the restitution hearing that the causal link was "broken by the intervening factor, the independent intervening action" of Victim swallowing methamphetamine.
By relieving the original tortfeasor of all liability, the superseding cause doctrine is at least arguably inconsistent with principles of comparative fault, which have been a part of Utah law since at least 1973. See Graves v. North E. Services, Inc. ,
The superseding cause doctrine does not apply where the original tortfeasor is accused of committing intentional torts. See Hess v. Canberra Dev. Co. ,
Likewise, no evidence was provided regarding the medical effects of swallowing (as opposed to smoking) methamphetamine. The record does not inform us whether such a method has a faster or slower effect on the user, and sheds no light on the extent to which Victim's ingestion of methamphetamine made it more likely that he would overdose.
As with Oliver's argument challenging the causal relationship between Victim's overdose and Victim's death, see supra ¶ 29 & n.8, Oliver is precluded from reasserting this challenge on remand because our resolution of this issue is now the law of the case. See Mid-America Pipeline Co. ,
Concurrence Opinion
¶45 Based upon the Utah Supreme Court's recent decision in State v. Ogden ,
¶46 In State v. Robinson ,
¶47 Clearly, "the best evidence of the legislature's intent is the plain language of the statute itself," and I cannot disagree with the supreme court's analysis in Ogden . Id. ¶ 31 (quotation simplified). However, I think it is important to keep in mind all of the practical *508limitations a sentencing court faces in ordering restitution in a criminal case. If the Utah Legislature did not intend for proximate cause to be the standard applied in the criminal restitution context, it may want to amend the Crime Victims Restitution Act.