STATE of Arizona, Petitioner, v. The Honorable Michael O. WILKINSON, Judge of the Superior Court of The State of Arizona, in and for the County of Maricopa, Respondent Judge, John R. Porter, Real Party in Interest.
No. 1 CA-SA 00-0054.
Court of Appeals of Arizona, Division 1, Department B.
Sept. 12, 2000.
As Amended Sept. 13, 2000.
10 P.3d 634
Review Granted Feb. 13, 2001.
¶ 15 “Were they lying” questions alone will rarely amount to fundamental error. See Freeman; Flanagan; Casteneda-Perez. But cf. Richter.4 The prosecutor‘s comment in closing argument that “the officers have lied or they‘re completely inconsistent” pales in comparison to the summation in Richter, in which the prosecutor repeatedly asserted that, in order to acquit the defendant, the jury had to determine that the police officers had lied. 826 F.2d at 208-09. In аddition, not only did the prosecutor in this case give Morales an opportunity to explain the inconsistency between his testimony and the officers‘, but Morales seized that opportunity and attributed the inconsistencies to mistakes or misunderstandings. Moreover, the trial court instructed the jurors before and after the presentation of evidence that they were the sole triers of witness credibility and that a police officer‘s testimony “is not entitled to any greater or lesser weight or believability merely because of the fact that he is a police officer.” Finally, based on the evidence that Morales had a BAC of at least .191 and that he generally had performed poorly on field sobriety tests, we cannot say the questions deprived him of a fair trial.
¶ 16 Morales‘s convictions and the sentences imposed are affirmed.
CONCURRING: M. JAN FLOREZ, Judge, and JOSEPH W. HOWARD, Judge.
Hurley & Mahowald By Michael E. Hurley, Phoenix, Attorneys for Real Party in Interest.
OPINION
FIDEL, Judge.
¶ 1 It is a class one misdemeanor in Arizona to act as a residential contractor without a license. See
I. HISTORY
¶ 2 In February 1996, Defendant John R. Porter represented himself as a licensed con-
¶ 3 For his separate acts with respect to T.S. and N.L., Porter was charged with two separate counts of contracting without a license, class one misdemeanors that violate
¶ 4 In a timely appeal to the superior court pursuant to
II. JURISDICTION
¶ 5 Because the superior court rendered its judgment on appeal from the municipal court, the State has no direct avenue of appeal. See
¶ 6 The State does not contend that Porter‘s conviction for advertising to provide contracting services without first obtaining a contractor‘s license provides a proper basis for an order of restitution. The State confines its argument in favor of restitution to Porter‘s two convictions for contracting without a license. As the State confines its argument, so do we confine our disposition.
III. RESTITUTIONARY NEXUS
¶ 7 In sentencing a criminal offender, an Arizona court must order restitution to any victim who has suffered “economic loss” that “would not have been incurred but for the offense.” See
¶ 8 The superior court, finding no direct causal nexus between Porter‘s crime and the homeowners’ damages, analogized this case to State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 920 P.2d 784 (App.1996). In McDougall, we held that a convictiоn for leaving the scene of an injury accident did not support an order of restitution to the victims of the accident. The victims’ injuries, we stated, neither resulted from nor were aggravated by the criminal act of leaving the scene. Id. at 220, 920 P.2d at 786. “Both the constitution and statutes [of Arizona] re-
¶ 9 This case is far closer than McDougall. The statute that makes it a crime to leave the scene of an injury accident,
¶ 10 Despite these distinguishing factors, the question remains whether the victims’ losses in this case were directly caused by Porter‘s criminal conduct or whether the losses are so dependent on other factors that they constitute indirect damages too remote to be susceptible to restitution. The State advances alternative characterizations of the victims’ losses. We will examine each in turn.
A. Cost of Completing and Correcting Defective Work
¶ 11 The losses that the municipal court assessed were the costs to complete and correct the work that Porter had incompletely and poorly donе. These losses, the State contends, were directly caused by Porter‘s criminal conduct. We disagree.
¶ 12 As the superior court correctly observed, if Porter, though unlicensed, had performed his contracts capably, T.S. and N.L. would have sustained no loss. That Porter lacked a license did not cause their losses; his unworkmanlike performance caused their losses. Yet unworkmanlike performance is not an element of the criminal conduct for which Porter was convicted. An unlicensed contractor who performed his contract capably—indeed, flаwlessly—would be no less guilty of violating
¶ 13 Consider too that homeowners sometimes choose to hire unlicensed contractors, foregoing the protection of the licensing statutes in order to secure a lower price. When a person knowingly hires an unlicensed contractor and later suffers economic loss from unworkmanlike performance, we would not say that the contractor caused their losses by acting without a license. An element of misrepresentation, or at minimum, nondisclosure, seems necessary to make absence of a licensе an agent of harm. Cf. People v. Hays, 234 Cal.App.3d Supp. 22, 286 Cal.Rptr. 462, 465 (1991) (limiting restitution to parties who do not know their contractor lacks a license, reasoning that one who knowingly contracts with an unlicensed contractor is not a victim of the contractor‘s crime). Yet neither misrepresentation nor nondisclosure is an element of the criminal conduct for which Porter was convicted. An unlicensed contractor who revealed his status to his client—indeed, one who did so in writing—would be no less guilty of the misdemeanor of violating
¶ 14 In short, unworkmanlike perfоrmance is a direct and necessary element of causation in cases of this nature, as is misrepresentation or nondisclosure. Yet neither is an element of the crime. In contrast, unlicensed status is not an element of causation, but is an essential element of the crime.
B. Loss of Access to Registrar‘s Remedial Machinery
¶ 15 These same extra-statutory factors—unworkmanlike performance and nondisclosure—take center stage as causal agents when we consider the State‘s alternative characterization of the victims’ economic
¶ 16 This form of loss, however, also depends on unworkmanlike performance and nondisclosure of unlicensed status. That is, without unworkmanlike performance, there would be nothing to remedy, and the loss of access to the Registrar‘s remedial machinery would have no economic consequence. And even in a case of unworkmanlike performance, we would not say that a contractor‘s unlicensed status caused a homeowner to lose access to the remedies administered by the Registrar if the homeowner had knowingly chosen to employ an unlicensed contractor and deliberately relinquished the right of access to such remedies in order to secure a lower price.
C. Why These Factors Make A Difference
¶ 17 Our dissenting colleague attributes sufficient nexus between criminal conduct and loss to a chain of “but for” causation: had Porter not acted in the capacity of residential contraсtor without a license, there would have been no contract; had there been no contract, there would have been no performance; had there been no performance, there would have been no unworkmanlike performance; and had there been no unworkmanlike performance, there would have been no loss.
¶ 18 This “but for” analysis is debatable, for it traces causation entirely to the fact that Porter acted as a residential contractor and not at all to the fact that he lacked a license. Yet it is the absence of a license alone that makes acting as a residential contractor a crime.
¶ 19 However, even if we assume, for the sake of argument, the presence of “but for” causation in this case, that would not bring us to the end of our analysis. “But for” causation may be necessary to support restitution for a loss. See
¶ 20 Although the terms are imprecise, many branches of the law contrast “consequential” and “immediate” damages, “indirect” and “direct” damages, or “remote” and “proximate” damages as a means to convey “that legal responsibility for injuries has a limit.” 5 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 998, at 22 (1964); Cf. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 41, at 264 (5th ed. 1984) (“As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.“). Thus our case law has attеmpted to draw the line of restitution between the direct and indirect results of the criminal conduct for which a defendant has been convicted. See Morris, 173 Ariz. at 18, 839 P.2d at 438.
¶ 21 This question of direct or indirect causation provides the context for our discussion of unworkmanlike performance and nondisclosure. We do not discuss unworkmanlike performance and nondisclosure because either is factually doubtful in the record of this particular case, but because both shed light on the question whether, in this kind of
¶ 22 To summarize our view, one may act as a residential contractor without a license—the criminal conduct in question—without causing any loss at all. Unlicensed contracting is a victimless crime unless two further elements are added—unworkmanlike performance and misrepresentation or nondisclosure. Neither of these elements of damage causation, however, is an element of the crime. For this reason, we conclude that economic loss is a remote, indirect, or consequential result of unlicensed contracting and nоt one within the scope of criminal restitution.
IV. THE BURDEN OF ENFORCEMENT
¶ 23 A victim‘s right to restitution is constitutionally and statutorily protected in Arizona, but every right has limits. If restitution extended throughout the foreseeable range of but for causation, the administration of restitution would overwhelm the courts. The distinction between direct and indirect losses is important, for it serves to confine restitution within manageable bounds.
¶ 24 This prosecution illustrates the point. Unlicensed contracting is a class one misdemeanor, a petty offense. See
¶ 25 Further, misdemeanors are prosecuted in the justice and municipal courts. See
¶ 26 We do not decide that homeowners lack legal recourse for damages caused by the unworkmanlike performance of unlicensed contractors. Through civil causes of action, they may seek to establish and recover whatever losses the contractor may have caused. Such damages, however, are better suited to be determined in civil proceedings and are beyond the restitutionary scope of the statute that makes it a misdemeanor to act as a residential contractor without a license.
¶ 27 For the foregoing reasons, we accept review and deny relief.
CONCURRING: WILLIAM F. GARBARINO, Judge.
RYAN, Judge, Dissenting.
¶ 28 I agree with the majority that the losses sustained by Porter‘s victims in this case fall within the preventative scope of the contractor licensing statutes. However, in denying restitution to Porter‘s victims, the majority concludes that the losses suffered by Porter‘s victims are not sufficiently causally connected to his criminal conduct to support an award. Because I disagree with the majority in this regard, I respectfully dissent.
¶ 29 Under our constitution, crime victims have a constitutional right to prompt restitution. See
¶ 30 The majority opines that this case is “far closer” than State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 920 P.2d 784 (App.1996). See ante at ¶ 9. But, in fact, McDougall resembles this case only in that the trial court denied restitution. See 186 Ariz. at 219, 920 P.2d at 785. In McDougall, as the majority here correctly points out, the defendant‘s criminal conduct in leaving the scene of a vehicular accident did not cause or aggravate injuries suffered by the accident victims. See ante at ¶ 8; 186 Ariz. at 220, 920 P.2d at 786. Consequently, restitution was not proper because the defendant‘s criminal conduct did not cause the losses for which restitution was sought. See id. However, the majority concedes that the losses to “Porter‘s victims in this case, do fall within the intended preventive scope of the statute.” Ante at ¶ 9. Thus, in my view, McDougall simply does not apply here.
¶ 31 Nevertheless, the majority reaches the same conclusion as McDougall—that restitution is unavailable because, as they see it, Porter‘s crime did not directly cause his victim‘s losses. See ante at ¶ 11. The majority correctly explains that it was Porter‘s unworkmanlike performance that actually caused his victims’ lоsses. See ante at ¶ 12. Had Porter performed competently, his victims would have no claim for restitution because they would have suffered no losses. See id. “Yet,” writes the majority, “unworkmanlike performance is not an element of the criminal conduct for which Porter was convicted.” Id. They go on to note that homeowners, on occasion, knowingly deal with unlicensed contractors in order to get a better price. The majority thus believes that some element of nondisclosure or misrepresentation as well as unworkmanlike performance must accompany the crime of contracting without a license before restitution can attach. See ante at ¶¶ 13-14.
¶ 32 I believe that my colleagues’ analysis is flawed. The statutes make it a class 1 misdemeanor to act “in the capacity of a contractor within the meaning of this chapter without a license.”
¶ 33 The majority makes too much of the fact that without Porter‘s unworkmanlike performance his victims would have suffered no losses. They correctly state that an unlicensed contractor commits a crime when he acts in the capacity of a contractor regardless of the quality of his work. See ante at ¶ 12;
¶ 35 Similarly, I believe that my colleagues have misunderstood the impact of Porter‘s misrepresentation or nondisclosure of his unlicensed status. The majority observes that some people choose to deal with unlicensed contractors and, in doing so, give up the protection of the licensing statutes to get a better price. See ante at ¶ 13. From this, they conclude that an element of misrepresentation or nondisclosure must accompany the crime of contracting without a license before restitution can attach because, otherwise, the сonnection between the crime and any loss is too tenuous. See id. at ¶¶ 13-14.
¶ 36 The majority‘s reasoning is flawed because a person who knowingly solicits or facilitates an unlicensed person to act in the capacity of a contractor does not lessen that person‘s criminal responsibility for any resulting losses, but rather forfeits the right to receive restitution. It is unlawful for a person to knowingly solicit or facilitate the commission of a misdemeanor. See
¶ 37 The purposes underlying the contractor licensing statutes also support an award of restitution in this case. First, a person who contracts with a licensed contractor has reasonable assurances that the work will be completed in a competent manner. To obtain a license, a contractor must meet minimal competency requirements. See
¶ 38 Second, a person who contracts with a licensed contractor is assured that the contractor is financially responsible. In the con-
¶ 39 These basic protections are lost when a person contracts with an unlicensed contractor. The loss of these protections flows directly from the criminal act of contracting without a license. As a result, it is reasonably foreseeable that economic losses such as occurred here are the natural consequences of contracting with an unlicensed contractor. Cf. Morris, 173 Ariz. at 18, 839 P.2d at 438. Thus, the nature and character of Porter‘s criminal act reinforces my belief that there is a sufficient causal nexus between the victims’ losses and Porter‘s contracting withоut a license to justify a restitution award.
¶ 40 Finally, the award of restitution here serves the purposes of restitution. “The objectives of mandatory restitution are both reparative and rehabilitative.” State v. Freeman, 174 Ariz. 303, 306, 848 P.2d 882, 885 (App.1993). The municipal court‘s restitution order serves to make the victims whole and brings home to Porter the seriousness of his offense.2 To state that the victims have a remedy through a civil lawsuit as the majority does, see ante at ¶ 26, is to state the obvious and, in this case, points the victims to an empty remedy. Porter declared bankruptcy naming his victims as creditors. Consequently, the victims could not recovеr from Porter in a civil suit if his contractual debts to them were discharged. See
¶ 41 Therefore, I would grant relief and reinstate the municipal court‘s restitution orders.