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State v. Mooers

Court of Appeals of Utah

April 26, 2018

State of Utah, Appellee,
Ryan Mooers, Appellant.

          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 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."

         ¶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."

         ¶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 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 ...

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