Case Information
*1
_________________________________________________________
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
S COTT C. W ADSWORTH , Defendant and Appellant.
Oрinion No. 20130510-CA Filed May 29, 2015 Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 031908633 Debra M. Nelson and Nisa J. Sisneros, Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in which J UDGES G REGORY K. O RME and J AMES Z. D AVIS concurred.
CHRISTIANSEN, Judge: Scott C. Wadsworth appeals from the district court’s
restitution order imposed after he was convicted of and sentenced for sexual еxploitation of a minor, unlawful sexual activity with a minor, and enticing a minor over the internet. The district court ordered Wadsworth to reimburse the victim for the lost wages she incurred several years after Wadsworth’s crimes ‚due primarily to the depression, sleep issues, emotional pain, and an inability to interact with others that was caused by the psychological trauma from being victimized by [Wadsworth].‛ Wadsworth clаims that the causal connection between his criminal conduct in 2003 and Victim’s lost wages in 2009 and 2010 is too attenuated to support an award of restitution and that Victim’s lost wages due to depression and psychological trauma are more akin to unrecoverable pain and suffering damages than to pecuniary damages. We conclude that the causal connection between Wadsworth’s conduct and Victim’s lost wages is clear, that any attenuation resulting from a delay in ordering restitution was caused by Wadsworth absconding before his initial sentencing hearing in 2005, and that Victim’s lost wages are economic pecuniary damages specifically recoverable by statute. We therefore affirm the district court’s restitution order.
BACKGROUND
¶2 In July 2003, Wadsworth met Victim, then a minor, in an online chat room. Over the next three weeks, Wadsworth and Victim chatted online and on the telephone. During their conversations, Wadsworth sent Victim numerous pornographic images and video clips. On one occasion, Wadsworth went to Victim’s home and she performed oral sex on him. In December 2003, Wadsworth was charged with over twenty offenses arising out of his misconduct involving Victim.
¶3 In October 2004, Wadsworth pled guilty to sexual exploitation of a minor, unlawful sexual activity with a minor, and enticing a minor over the internet. The remaining charges against him were dismissed. The district court set sentencing for April 8, 2005. However, Wadsworth failed to appear at the sentencing hearing, and a warrant was issued for his arrest. Wadsworth evaded authorities until July 2009 when he was arrested on the outstanding warrant. Wadsworth was finally sentenced for his crimes in December 2009. At the time of sentеncing, the court ordered ‚that *Wadsworth+ pay full and complete restitution‛ to Victim, and took the amount of restitution under advisement, to be decided at a later date. On November 19, 2010, the district court held a restitution hearing. At that hearing, Victim was the only witness to testify. Victim testified that Wadsworth’s original criminal conduct and the reminder of his crime after his 2009 arrest caused her ‚psychological problems, difficulties аnd depression‛ that negatively affected her both personally and professionally. Victim also submitted a written statement signed by her work supervisor, which the court read into the record:
As a result of the arrest in December [that] has brought up past memories and caused me to go into a deep state of depression, [I] had to cut down my hours at work to deal with past issues and I’ve missed out [on] 940 hours. I makе $13.76 an hour. It is totaled up $12,934.46 and has negatively affected me financially.
Victim’s counselor also submitted a letter to the court stating that Victim would likely need weekly counseling sessions for at least one year to deal with issues related to the case. The court took the matter under advisement and continued the restitution hearing until December 2010. On December 9, 2010, the court resumed the restitution
hearing. At the December restitution hearing, the district court found that Victim’s lost wages in 2009 and 2010 were the result of Wadsworth’s criminal conduct in 2003. In the district court’s written order, the court found that the ‚re-appearance of [Wadsworth] after that significant amount of time‛—between his failure to appear at his 2005 sentencing and his arrest in 2009—‚brought back bad memories and caused mental anguish to *Victim+.‛ The district court further found,
As a direct result of *Wadsworth’s+ criminal conduct, [Victim] was unable to work full-time as she had been doing before. This was due primarily to the depression, sleep issues, emotional pain, and an inability to interact with others that was caused by the psychological trauma from being victimized by [Wadsworth].
The court ordered Wadsworth to pay restitution in the amount of $6,500 for Victim’s counseling costs and $12,934.40 as recompense for Victim’s lost wagеs. Wadsworth now appeals the restitution order regarding the court’s determination on Victim’s lost wages. [1]
ISSUE AND STANDARD OF REVIEW ‚*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, 2009 UT 53, ¶ 10, 214 P.3d 104. ‚‘[T]he exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the appellate cоurt can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court.’‛ State v. Corbitt , 2003 UT App 417, ¶ 6, 82 P.3d 211 (alterations in original) (quoting State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)). Whether an award of restitution is proper in a particular case ‚depends solely upon interpretation of the governing statute, and the trial court’s interpretation of a statute presents a question of law, which *this cоurt+ review*s+ for correctness.‛ State v. Brown , 2009 UT App 285, ¶ 6, 221 P.3d 273 (alterations in original) (citation and internal quotation marks omitted).
ANALYSIS Wadsworth argues that the restitution award to Victim
for lost wages was improper for two reasons. First, Wadsworth contends that the causal connection between his conduct in 2003 and Victim’s lost wages in 2009 and 2010 is too attenuated to support an award of restitution. Second, Wadsworth claims that Victim’s lost wagеs are more appropriately classified as pain and suffering damages, which are not awardable pursuant to the restitution statute.
1. Wadsworth does not challenge the portion of the district court’s order of restitution relating to Victim’s counseling costs.
I. The Causal Connection Between Wadsworth’s Criminal Conduct and Victim’s Lost Wages Is Sufficiently Established to
Support the Award of Restitution.
¶9 The Crime Victims Restitution Act (the Act) provides,
‚When a defendant is convicted of criminal activity that has
resulted in pecuniary damages, in addition to any other sentence
it may impose, the court shall order that the defendant make
restitution
to victims of crime . . . .‛ Utah Code Ann.
§ 77-38a-302(1) (LexisNexis 2008). Pecuniary damages are ‚all
demonstrable economic injur[ies] . . .
arising out of the facts or
events constituting the defendant's criminal activities
.‛
Id.
§ 77-38a-
102(6) (emphasis added). Criminal activities are defined as ‚any
offense of which the defendant is convicted or any other criminal
conduct for which the defendant admits responsibility to the
sentencing court with or without an admission of committing
the criminal conduct.‛
Id.
§ 77-38a-102(2). Thus, to obtain an
order of restitution, the State must prove that the victim has
suffered economic injury and that the injury arose out of the
defendant’s criminal activities.
See id.
§ 77-38a-102(6);
see also id.
§ 77-38a-102(14)(a) (defining а victim as ‚any person whom the
court determines has suffered pecuniary damages
as a result of
the defendant’s criminal activities‛ (emphasis added)).
‚Utah has adopted a modified ’but for’ test to determine
whether pecuniary damages actually arise out of criminal
activities.‛
State v. Brown
,
in 2009 and 2010 were connected closely enough with
Wadsworth’s criminal acts to be recoverable as restitution. First,
while several years did pass between the criminal conduct in
2003 and the beginning of Victim’s decreased work hours in
2009, the four-year separation between Wadsworth’s scheduled
sentencing and the onset of Victim’s damages was due
entirely
to
Wadsworth absconding before his original sentencing in 2005.
Utah law provides that the victim of a crime has ‚the right to a
speedy disposition of the charges free from unwarranted delay
caused by or at the behest of the defendant‛ and to a ‚prompt
and final conclusion of the case after the disposition or
conviction and sentence, including prompt and final conclusion
of all collateral attacks on dispositions or criminal judgments.‛
Utah Code Ann. § 77-38-7(2) (LexisNexis 2008). Here,
Wadsworth should not be rewarded for fleeing and depriving
Victim of her right to a quick and prompt resolution of the case.
Cf. State v. Verikokides
,
restitution is that amount necessary to compensate the victim
‚for all losses caused by *a criminal+ defendant.‛ Utah Code
Ann. § 77-38a-302(2)(a). The Act ‚should be liberally construed
to accomplish the purpose of making crime victims whole for the
harms they suffer because of a defendant’s criminal conduct.‛
State v. Ruiz
,
suffers from . . . depression or some psychological or mental health issues related to this case that require counseling, that according to her testimony she has suffered from depression that has affected her ability to work and [that she] has not been able to work full-time when prior to that she was able to and that is supported primarily by her testimony.
Based on Victim’s testimony and the statements and letters in evidence, the court concluded that ‚*Viсtim has+ indicated that the depression and therefore her inability to work and how it has affected her work is because of the psychological issues that have arisen because of being a victim of the crimes that Mr. Wadsworth has pled guilty to.‛ Victim was the only witness to testify at the hearing and
Wadsworth presented no evidence or witnesses at the hearing to
rebut Victim’s testimony that her depression and inability tо
work were caused by Wadsworth’s criminal activities. On
appeal, Wadsworth identifies no record evidence showing that
Victim’s testimony ‚was so lacking that no reasonable person
would take the view adopted by the trial court.‛
[2]
State v. Hight
,
2008 UT App 118, ¶ 6, 182 P.3d 922 (citation and internal
quotation marks omitted). The court appropriately relied on the
testimony at the hearing, the exhibits, and the pleadings and
arguments of counsel.
See id.
Thus, in light of Victim’s testimony,
her actual loss, and the deference we must accord the district
court and its authority ‚to fashion an equitable award to the
victim,‛
Corbitt
,
conduct was the ‚but for‛ cause of Victim’s lost wages,
see State
v. Laycock,
II. Victim’s Lost Wages Are Pecuniary Damages
Recoverable by Statute.
¶16 Wadsworth argues that even if his criminal conduct
caused Victim’s damages, her lost wages are more appropriately
classified as pain and suffering damages that are not recоverable
under the Act. In evaluating this claim, we first examine the
plain language of the restitution statute, and we will ‚apply
other methods of statutory interpretation only when the
language is either ambiguous or inconsistent.‛
State v. Mast
, 2001
UT App 402, ¶ 10,
restitution for lost wages. The Act defines pecuniary damages as ‚ all demonstrable economic injury , whether or not yet incurred, which a person could recover in a civil action arising out of the facts or events constituting the defendant’s criminal activities‛ and encompasses ‚losses including lost earnings.‛ Utah Code Ann. § 77-38a-102(6) (LеxisNexis 2008) (emphasis added). The Act specifically excludes ‚punitive or exemplary damages and pain and suffering.‛ Id. Wadsworth argues that although ‚[Victim] identified a
precise monetary amount she lost,‛ her lost wages result from
her cutting back her hours ‚because of her emotional issues and
her own determination of how much she could or could not
work.‛ Wadsworth asserts that Victim’s claim for lost wages is
therefore ‚a proxy for pain and suffering.‛ But the Act only
requires that a victim’s damages ‚aris*e+ out of the facts or
events constituting the defendant’s criminal activities.‛
Id.
And
‚*i+f readily ascertainable costs associated with emotional injury
arising directly from a crime were not within the scope of
restitution,‛ then ‚restitution would not cover reasonable
counseling expenses for victims of crime.‛
State v. Shepherd
, 2012
VT 91, ¶ 11, 60 A.3d 213;
see also
Utah Code Ann. § 77-38a-
302(5)(b)(ii) (LexisNexis 2008) (explaining that a court’s
restitution determination should take into consideration the
‚cost of necessary medical and related professional services . . .
relating to physical or mental health care, including nonmedical
care and treatment rendered in accordance with a method of
healing recognized by the law of the place of treatment‛).
‚The focus in awarding restitution to a victim is not the
type of injury sustained, but rather the link between the
damages and the crime.‛
Shepherd
,
lost wages in two instances: (1) when the victim incurs lost
wages because the offense caused bodily injury to the victim,
and (2) when the victim’s tools or equipment items of her trade
are damaged or stolen and those items are essеntial to the
victim’s current employment. This argument appears to
interpret the Act as limiting lost-wages restitution to those types
of cases. But such an interpretation is inconsistent with the plain
language of the Act. ‚In determining the monetary sum and
other conditions for complete restitution, the court shall consider
all relevant facts,
including,
‛ among other things, those
categories of lost wages Wadsworth has identified.
See
Utah
Code Ann. § 77-38a-302(5)(b) (emphasis added). ‚[W]hen any
statute uses the word ‘includ*ing+,’ it ‘means that the items listed
are not an exclusive list, unless the word ‚only‛ or similar
language is used to expressly indicate that the list is an exclusive
list.’‛
Mallory v. Brigham Young Univ.
,
relevant facts a court must consider when awаrding restitution. In fact, we note that Utah Code section 77-38a-302(5)(b) instructs courts to consider ‚all relevant facts,‛ indicating that a court must consider all facts that are relevant to the case, including ones beyond those listed in that section. Moreover, applying the statutory meaning of ‚including‛ to section 77-38a-302(5)(b) yields results consistent with the Act’s purpose ‚of making crime victims whole for the harms they suffer becausе of a defendant’s criminal conduct.‛ State v. Ruiz , 2013 UT App 166, ¶ 18, 305 P.3d 223 (Christiansen, J., concurring in part and dissenting in part). Thus, a plain reading of the restitution statute supports the district court’s conclusion that Victim suffered ‚pecuniary damages‛ in the form of lost wages as contemplated by the Act. The district court therefore correctly determined that Victim’s damages included her lost wages and that such damages were appropriately awardable pursuant to the Act.
CONCLUSION We conclude that the district court did not abuse its
discretion or exceed its authority in determining that Victim’s pecuniary damages were caused by Wadsworth’s criminal activities for purposes of the restitution statute. Nor did the district court abuse its discretion or exceed its authority in determining that Victim’s damages included her lost wages. We affirm the district court’s restitution order.