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State v. Ogden

Supreme Court of Utah

February 27, 2018

State of Utah, Appellee,
Jesse Roger Ogden, Appellant.

         On Certification from the Court of Appeals

         Second District, Ogden The Honorable Judge Joseph Bean No. 131902263

          Sean D. Reyes, Att'y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, Letitia J. Toombs, Ogden, for appellee

          Samuel P. Newton, Kalispell, MT, for appellant

          Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Judge Bates, and Judge McKelvie joined.

          Having recused himself, Justice Himonas does not participate herein; District Court Judge Matthew D. Bates sat.

          Due to her retirement, Justice Durham did not participate herein; District Court Judge Richard D. McKelvie sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter, and accordingly did not participate.

          PEARCE, JUSTICE.


         ¶1 Jesse Ogden sexually abused Victim several times before her fifth birthday. Several years later, a friend of Victim's mother repeatedly abused Victim sexually. Ogden pled guilty to two counts of aggravated sexual abuse of a child. Victim intervened in Ogden's restitution hearing to seek restitution for, among other things, the anticipated cost of mental health treatment for the remainder of her life. The district court entered orders for complete and court-ordered restitution. Ogden challenges the restitution orders, and levels a variety of arguments against them. Ogden contends that Victim's damages were caused, at least in part, by her subsequent sexual abuse, and that the district court based its complete restitution award on speculation about expenses she would incur in the future.

         ¶2 We clarify the standard the Crime Victims Restitution Act requires the district court to employ to determine whether a defendant caused the loss for which a victim seeks restitution. And we remand to permit the district court to apply that standard. Because the issue will likely arise again on remand, we also take the opportunity to address Ogden's argument that the district court did not have an evidentiary basis to support its conclusions about some of Victim's future expenses.


         ¶3 Victim, her two brothers, her sister, and Victim's mother (Mother) lived with Ogden. Ogden sexually abused Victim several times during the first few years of her life. When Victim was five years old, she disclosed the abuse to Mother. Ogden subsequently moved out of the family home. Victim's brothers blamed and ostracized Victim for Ogden's separation from the family. To protect her from her brothers' harassment, Mother sent Victim to live with several other families.

         ¶4 After Victim disclosed that Ogden had abused her, she attended therapy for approximately four years. During this time, Victim demonstrated "angry and anxious behavior along with self-injurious behavior of scratching herself when upset." Toward the end of treatment, Victim's therapist reported that Victim "had made considerable progress in treatment." Victim concluded treatment when she was ten years old.

         ¶5 At this point, Victim resided with one of Mother's friends, S.G. Mother was aware that S.G. was a registered sex offender. S.G. sexually abused Victim on multiple occasions while she stayed with him. In 2012, the Division of Child and Family Services (DCFS) removed Victim from Mother's custody and arranged therapy for Victim. Victim's therapist diagnosed her with adjustment disorder and post-traumatic stress disorder. Victim also displayed symptoms of anxiety and depression. Victim continued therapy for a year. Her therapist noted that Victim "achieved [her] treatment goals of decreasing anxiety and increasing social skills" but discharged Victim from treatment because she was "unwilling to talk about the sexual abuse." Her therapist concluded that "[t]herapy might be warranted in the future when [Victim] is ready to deal with [the sexual abuse]."

         ¶6 Ogden confessed to the abuse and the State charged him with one count of sodomy upon a child and one count of aggravated sexual abuse of a child. The State later amended the charges to two counts of attempted aggravated sexual abuse of a child. Ogden pleaded guilty to both counts and the district court sentenced him to two concurrent terms of three years to life. Victim filed a motion for restitution, arguing that she "suffered significant pecuniary damage as a result of the sexual abuse committed against her" by Ogden.[1]Victim supported her motion with a forensic evaluation from Dr. David Corwin and a life care plan from Sheryl Wainwright. Both Dr. Corwin and Ms. Wainwright testified at the restitution hearing.

         The Forensic Evaluation

         ¶7 Dr. Corwin, a psychiatrist, reviewed Victim's medical, psychological, and DCFS records. Dr. Corwin also interviewed Victim and Mother on two occasions. He observed that Victim demonstrated clinically significant symptoms of post-traumatic stress disorder and moderate sexual distress. He concluded that Victim

suffers significant psychological trauma caused by [Ogden's] sexual abuse of her, the family disturbances associated with that sexual abuse including harass[ment] by her older brothers and living away from her family with various other families culminating in her spending considerable time with [S.G.] . . . where she was probably sexually abused again . . . . The impacts of the sexual abuse are many and can last throughout life. Separate contributions of the sexual abuse by [Ogden and S.G.] cannot be reliably parsed. . . . The full extent of [Victim's] injuries is likely not yet fully apparent. She may well develop more serious problems in the future that may require treatment and interventions beyond what I recommend at this time.

         ¶8 Dr. Corwin also opined that Victim "is at an increased risk for a variety of behavioral, psychiatric and physical problems because of the sexual abuse, exposure to domestic violence and the other stresses and losses associated with it." He explained that these problems include "[d]epression, suicidal thoughts, drug and alcohol problems, . . . school performance and vocational problems among many others including long-term health problems like increased risks of heart disease not associated with other risk factors like diabetes, smoking and high blood pressure."

         ¶9 Dr. Corwin recommended that Victim "receive a course of Trauma Focused Cognitive Behavior Treatment (TF-CBT) within the near future as soon as a therapist trained in TF-CBT, or some similarly evidence-based treatment, can be found for her." He added that Victim "should be provided the resources for five additional trauma focused treatment courses, totaling six, of evidence-based individual psychotherapy over the course of her life. Each course may last for up to two years of weekly individual therapy."

         The Life Care Plan

         ¶10 Ms. Wainwright, a registered nurse and certified life care planner, created a life care plan for Victim (the Plan).[2] To craft the Plan, Ms. Wainwright reviewed Victim's medical, psychological, and DCFS records. She also reviewed Dr. Corwin's forensic evaluation and included his recommendations in the Plan. She did not examine or interview Victim or Mother.

         ¶11 Ms. Wainwright projected the lifetime costs of treatment and care for Victim in several categories, two of which are relevant to this appeal: inpatient and outpatient psychiatric services, and medications.

         1.Inpatient and Outpatient Psychiatric Services

         ¶12 The Plan estimated the lifetime cost of Victim's psychological counseling, which included the cost of inpatient hospitalizations, intensive outpatient programs, a psychologist for Mother, a psychologist for Victim, eye movement desensitization and reprocessing (EMDR) therapy, and a neuropsychological evaluation. The Plan explained that "[d]epression, anxiety, self-destructive behaviors, dissociative behaviors, substance abuse, borderline personality disorder, promiscuity or sexual dysfunction, issues with relationships, and physical sequelae are common among[] victims of childhood sexual abuse." The Plan also explained that "clients with PTSD who have suffered from childhood sexual abuse often have episodes in their lifetime that require an inpatient admission to manage their symptoms and stabilize them."

         ¶13 The Plan noted that Victim had engaged in self-harm which "required emergency room visits for deep cuts that were not repairable at the time of her admission." The Plan recommended that because Victim "was not in therapy [at the time of the Plan's preparation], and her behavior is evidence that she does not have the strategies in place to manage her symptoms, she will likely require multiple admissions throughout her lifetime." Ms. Wainwright explained that she had clients who were hospitalized multiple times a year. And the Plan included ten inpatient hospitalizations for Victim's lifetime, lasting seven to twelve days per admission. It also included the cost of ten intensive outpatient programs. The Plan recommended EMDR because it is "a recommended and accepted treatment protocol for clients with PTSD." Finally, the Plan recommended a neuropsychological evaluation "to evaluate [Victim's] functional abilities for work and her personal life."


         ¶14 The Plan also forecasted the lifetime cost of medications to combat anxiety, sleeping disorders, and pain. The Plan explained that even though Victim was not taking any medications, "medication management is a vital part of treatment for anxiety, depression, and PTSD." The Plan included the cost of various medications for depression because "[s]tudies indicate [they] are the most effective medications in the treatment of PTSD associated with childhood sexual abuse, with associated anxiety and depression." The Plan also explained that "clients who are the victims of childhood sexual abuse tend to develop physical symptoms including chronic fatigue, fibromyalgia, chronic pain, irritable bowel, difficulty breathing, and cardiac issues, " but it is unclear whether the Plan included the cost of medications to treat these issues in its recommendation.

         The Restitution Hearings

         ¶15 Victim intervened in the restitution hearing and was represented by the same counsel who was pursuing her claim for civil damages against Ogden in a separate proceeding. The State initially did not appear at the restitution hearing. The district court explained that it felt "uncomfortable without at least somebody sitting by from the State" because the court "believe[d] the State does need to be present." The State then made a brief appearance but simply requested to be excused from the hearing. The State explained that it wanted to "leave [the hearing] in the hands of [Victim's counsel]" because "[t]hey have . . . all of the documents, witnesses, et cetera." Defense counsel did not object and the court excused the State. The State left the hearing, never to return. From that point on, Victim's counsel presented evidence concerning the losses she alleged Ogden had caused (or would cause) her to suffer.

         ¶16 At the hearing, Dr. Corwin spoke generally about the impacts of sexual abuse on a child and the treatment that typically benefits abuse victims. He explained that most frequently, the impacts include "increased anxiety, depression, suicidal ideation, suicidal acts, self-harm acts, . . . diminished learning ability and later decreased vocational attainment, increased difficulty in interpersonal relationships and in intimate relationship[s], [and] problems with sexual functioning." Dr. Corwin also explained that "sexually abused children are more likely to get sexually abused later in life." He explained that his "view of future care of people who have experienced severe trauma is that they need to have the availability of periods of treatment throughout their life."

         ¶17 Dr. Corwin reiterated the conclusions and treatment recommendations contained in his forensic evaluation. He explained that at the time he assessed Victim "she was very symptomatic, " "failing in school, " and engaging in self harm behaviors. He concluded that although Victim is "at least [of] normal intelligence, " she was failing school because "she is so adversely impacted from the severe stress that she has experienced." Dr. Corwin concluded that Victim "is a severely affected sexually abused child . . . who shows a wide variety of psychological and behavioral problems that are known to be related to child sexual abuse and other early childhood adversity which she has also experienced, and that she is likely to ...

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