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State v. Becker

Court of Appeals of Utah

May 3, 2018

State of Utah, Appellee,
v.
Darron Laven Becker, Appellant.

          Third District Court, Salt Lake Department The Honorable Ann Boyden No. 131902981

          Debra M. Nelson and Lacey C. Singleton, 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.

          OPINION

          TOOMEY, Judge

         ¶1 Darron Laven Becker was charged with third-degree aggravated assault after attacking Victim with a shovel. Following plea negotiations, Becker pleaded guilty to the reduced charge of attempted aggravated assault, a class A misdemeanor. The district court agreed to hold Becker's plea in abeyance for two years provided he complied with the conditions that he attend an anger management class and pay restitution. Becker now challenges the order of restitution, contending the record evidence did not "clearly establish a causal connection between [his] admitted criminal conduct and [Victim's] alleged damages."[1] We conclude the State did not carry its burden to prove that Becker's conduct, for which he agreed to pay restitution, resulted in Victim's alleged damages. We therefore reverse the order of restitution and remand to the district court for further proceedings consistent with this opinion.

         ¶2 One evening, Becker saw Victim walking his unleashed dogs through Becker's neighborhood. Enraged, Becker stormed out of his house, grabbed a shovel, and began swinging the shovel at the dogs while yelling obscenities at Victim. Victim apologized and attempted to avoid a confrontation by crossing the street. But Becker did not abate and twice swung his shovel at Victim, first striking him in the throat and then on the head. Witnesses saw Becker pin Victim against a fence and heard Becker scream that he was going to kill Victim. Victim sustained injuries to his neck and head, as well as a laceration across his left hand.

         ¶3 The district court accepted Becker's guilty plea and then the State filed a motion for restitution, requesting $663.01, and attached a "Restitution/Subrogation Notice" from the Utah Office for Victims of Crimes (the UOVC). This notice listed information about Becker and Victim; the date, location, and type of crime; and the payment the UOVC made to Victim within days of the aggravated assault. The UOVC paid Victim $663.01 for a "Medically Necessary Device." The UOVC also requested reimbursement for that payment. No other information was provided to support the payment made for such a device.

         ¶4 Becker objected to the State's motion for restitution and the court held a hearing. Because Victim was absent from the hearing, the State supported its restitution request with a handwritten note from Victim, which itemized "the economic losses he suffered from the assault: $39 for a vision exam, $624 for a pair of replacement eyeglasses, and $480 in lost wages." But the State did not present any evidence to show that Victim was wearing eyeglasses during the assault, nor did it present any receipts or documents from a physician with respect to the eye exam and Victim's purchase of eyeglasses. Becker argued that not only was this evidence insufficient to establish which medically necessary devices were paid for, but that it was also insufficient to establish a causal nexus between Victim's alleged damages and the conduct for which Becker agreed to pay restitution. The State responded that the payments were for the eyeglasses and vision exam, as provided in Victim's handwritten note.[2] But Becker "strenuously object[ed] to any order of restitution that . . . [was] based just on a handwritten piece of notebook paper, " even if the UOVC paid reparations based on that evidence alone. He also complained that neither Victim nor a UOVC representative was present at the hearing to explain the basis for the payment.

         ¶5 The district court stated that Victim's handwritten note and the UOVC's documents did not "seem to be sufficient . . . to even determine whether [the reparations payment] is directly connected to . . . the criminal conduct of Mr. Becker." The court set a second restitution hearing to give the parties "some time to see if in fact [the reparations payment] is what it claims to be."

         ¶6 The parties did not produce additional evidence at the second restitution hearing. And neither Victim[3] nor a UOVC representative appeared to testify. Becker again objected to an order of restitution based on the UOVC's reparation payment, arguing that, even if the reparation payment to Victim was for a vision exam and eyeglasses, there was insufficient evidence to determine that his conduct resulted in "damages to [Victim's] eye or his eyeglasses" because the police reports and witness statements did not provide foundation for establishing these damages. Becker also argued that his due process rights were violated because he had "a right to cross-examine" both Victim and "whoever from [the UOVC] looked at this claim and made the determination and what exactly it was for and whether there is a proper basis for it."

         ¶7 The court concluded that Becker's due process rights were not violated because his right to confront witnesses was a "trial right[]" that he waived when he pleaded guilty to a reduced crime. The court also determined there was "sufficient foundation and nexus" between Becker's conduct and Victim's damages and ordered restitution in the amount of $663.01.

         ¶8 Becker timely appealed, contending the record evidence did not "clearly establish a causal connection between [his] admitted criminal conduct and [Victim's] alleged damages" that would support an order of restitution.[4]

         ¶9 We "will not disturb a [district] court's restitution order unless it exceeds that prescribed by law or [the court] otherwise abused its discretion." State v. Corbitt, 2003 UT App 417, ¶ 6, 82 P.3d 211 (quotation simplified).

         ¶10 The Utah Code[5] provides that "[w]hen a person is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to the victims, or for conduct for which the defendant has agreed to make restitution as part of a plea agreement."[6] Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2017); see also id. ยง 77-38a-302 (restitution criteria). Pecuniary damages are "all demonstrable economic injur[ies], whether or not yet incurred ...


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