2022 UT App 104
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHON BRIAN BLAKE,
Appellant.
Opinion
No. 20200675-CA
Filed August 18, 2022
Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 191400656
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes, Kris C. Leonard, and William M.
Hains, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
POHLMAN, Judge:
¶1 Shon Brian Blake appeals the district court’s Order of
Restitution. Blake argues that the court abused its discretion in
ordering restitution for medical bills because there was
insufficient evidence to support a determination that his criminal
conduct proximately caused the medical services generically
identified in those bills. We agree and reverse.
BACKGROUND
¶2 On February 12, 2019, Blake was involved in a
confrontation with his ex-girlfriend and her new boyfriend.
State v. Blake
During the confrontation, Blake shot at the ex-girlfriend’s car and
then at the boyfriend. The shots hit the boyfriend twice in the arm,
and he was taken to the hospital, where he had surgery to remove
one of the bullets and repair the damage to his arm.
¶3 Blake was charged with attempted murder, felony criminal
mischief (domestic violence), five counts of felony discharge of a
firearm, and misdemeanor criminal mischief. As a result of plea
negotiations, the charges were reduced to aggravated assault,
felony criminal mischief (domestic violence), and one count of
felony discharge of a firearm. Blake pleaded guilty to the reduced
charges, acknowledging that he had shot the boyfriend in the arm.
The district court sentenced Blake to concurrent prison terms,
ordered $500 in restitution for damage to the car, and held
restitution open for one year to allow additional claims to be
submitted.
¶4 Within that year, the State filed a motion to amend the
restitution amount to include restitution to cover $36,701.56 that
the Utah Office for Victims of Crime (UOVC) had allegedly paid
for the boyfriend’s medical bills. The State supported the motion
with an attached list of payments, setting forth seven separate
payments allegedly made to cover twenty-two medical claims
with service dates from February 12 to 14, 2019. The list did not
identify what services were provided or by whom; instead, the
amounts were simply labeled “Medical” or “Medical Facility.”
¶5 Blake objected to the motion, contesting the restitution
amount and requesting a hearing on the matter. At the hearing,
Blake argued that because the payment amounts were described
only as “Medical” or “Medical Facility,” he was “unable to
determine what the specific claim was, where it came from, or
how it was related to the case.” Therefore, Blake argued, the
payment list was insufficient to support the requested order of
restitution.
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State v. Blake
¶6 The State was joined by two representatives from UOVC to
explain the standard processes the office usually employed before
authorizing any payment. 1 Neither representative had personal
knowledge regarding the payments in question, but they
explained that before UOVC would authorize a payment, a claims
analyst would review the invoices and check the dates as well as
the procedural and diagnostic codes to verify that the treatment
received was “crime-related.” One of the representatives also
stated that the payment list did not include the names of the
treating physicians or facilities or the related codes that would
describe the relevant medical procedures because the document
had been redacted due to its status as a protected record under
the Government Records Access and Management Act, see Utah
Code Ann. §§ 63G-2-101 to -901 (LexisNexis 2019 & Supp. 2021).
The representative conceded, however, that there were ways to
allow disclosure of this information in the event it was needed.
Nonetheless, the State continued to assert that the payment list
was “proof enough” that the payment amounts were related to
services proximately caused by Blake’s criminal conduct.
1. The State argues that Blake does not account for the information
provided by the UOVC representatives because the State
“proffered” the information by having the representatives
address the court without placing them under oath. Because Blake
did not object to the district court’s reliance on the proffered
testimony, any objection to that reliance would not be preserved
for appeal. See State v. Amoroso, 1999 UT App 60, ¶ 7,
975 P.2d 505
(“As a general rule, appellate courts will not consider an issue
raised for the first time on appeal.”). But Blake’s argument on
appeal does not specifically challenge the court’s reliance on the
proffered testimony. Instead, we understand Blake’s argument to
be that even considering the proffered testimony, there was
insufficient evidence to support the district court’s restitution
order.
20200675-CA 3
2022 UT App 104
State v. Blake
¶7 The district court agreed with the State, relying on the facts
that the crime victim was identified on the statement as the
recipient of the medical care, that “the dates of service correspond
to roughly the time of the alleged injuries in the crime,” and that
“statutory procedures for making payment to claimants [have]
been followed in this case.” On this basis, the court determined
that “the medical bills arise from the crime in this case.” The court
then set complete restitution at $36,701.56 and imposed court-ordered restitution of $18,350.78. 2 Blake now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Blake contends that the district court abused its discretion
by ordering restitution where the State did not present sufficient
evidence to link his admitted criminal conduct to the requested
restitution amounts. “We will not disturb a district court’s
restitution determination unless the court exceeds the authority
prescribed by law or abuses its discretion.” State v. Ogden, 2018
UT 8, ¶ 25,
416 P.3d 1132 (cleaned up).
ANALYSIS
¶9 Under the Crime Victims Restitution Act, the district court
is required to determine restitution for any pecuniary damages
proximately caused by the defendant’s criminal conduct. See Utah
2. For a discussion of the differences between complete restitution
and court-ordered restitution, see State v. Ogden, 2018 UT 8,
¶¶ 27–28,
416 P.3d 1132. This distinction, however, no longer
exists in current law. See
Utah Code Ann. § 77-38b-205(1)(a)(ii)
(LexisNexis Supp. 2021) (“In determining the amount of
pecuniary damages . . . , the court shall consider all relevant facts
to establish an amount that fully compensates a victim for all
pecuniary damages proximately caused by the criminal conduct
of the defendant.”).
20200675-CA 4
2022 UT App 104
State v. Blake
Code Ann. § 77-38a-302(1) (LexisNexis 2017) (“When a defendant
enters into a plea disposition or is convicted of criminal activity
that has resulted in pecuniary damages, . . . the court shall order
that the defendant make restitution . . . .”) (current version at id.
§ 77-38b-205 (Supp. 2021)); State v. Ogden, 2018 UT 8, ¶ 38,
416
P.3d 1132 (determining the appropriate causal standard to be
proximate cause—“the same causation standard . . . that would
apply in a parallel civil action”). 3 The proximate cause standard
“requires a showing that the crime, in a natural and continuous
sequence, unbroken by any new cause, produced the injury and
that the injury would not have occurred absent the crime.” State
v. Watson,
2021 UT App 37, ¶ 17,
485 P.3d 946 (cleaned up). And
“even in cases where UOVC compensates a victim, the State still
bears the burden of proving that the victim has suffered economic
injury and that the injury arose out of the defendant’s criminal
activities.”
Id. (cleaned up).
¶10 We agree with Blake that our decision in State v. Watson,
2021 UT App 37,
485 P.3d 946, is controlling here. In Watson, the
defendant, in a fit of road rage, tried to run the victim off the road,
hit the victim’s car from behind, and then, after exiting his vehicle,
chased and assaulted the victim.
Id. ¶¶ 2–5. The district court
ultimately ordered restitution that covered amounts UOVC had
paid for the victim’s mental health therapy sessions. Id. ¶ 7.
Although the State had supported its restitution request with a list
of twenty-five therapy sessions that had commenced about six
weeks after the road rage incident, the list stated only that the
charges were for “Mental Health Therapy” and did not list any
provider information or any further description of the topics
addressed during any of the sessions. Id. ¶ 8. The State did,
however, present testimony from a UOVC restitution specialist,
who explained that under “UOVC’s standard procedure” an
3. The proximate cause standard has been specifically
incorporated by the recent modifications to the Crime Victims
Restitution Act. See id. § 77-38b-205(1)(a)(i)(B).
20200675-CA 5
2022 UT App 104
State v. Blake
analyst would have reviewed each claim and authorized payment
only if the claim was “related to the specific crime.” Id. ¶ 9.
¶11 The Watson court determined that while it did not doubt
that Watson’s violent behavior could have led to the victim
needing mental health services, the State still had not sufficiently
proved its case for restitution. Id. ¶ 16. As the court explained, “a
trial court must determine whether restitution is available from
the record before it rather than from assumptions about the
analysis an administrative agency may have employed in
reaching its conclusions under a distinct statute that has different
goals and limitations. In other words, the court may not delegate
the determination of proximate cause to UOVC.” Id. ¶ 18 (cleaned
up). “Instead, so that the court could make its own determination
based on the evidence, it was incumbent on the State to include in
the record the materials the claims analyst relied on or other
evidence . . . to permit the court’s direct review of the evidence
establishing causation.” Id. ¶ 19. Thus, where the State’s evidence
“did not allow the court to make its own, independent
determination on the subject” of causation, the evidence “was an
insufficient basis for the court’s restitution award.” Id.
¶12 As in Watson, the evidence presented here was insufficient
for the district court to make an independent determination of
causation without relying on the causal determinations made by
UOVC. While there is no real argument that the shooting here did
not cause a need for some medical care to address the gunshot
wounds, there was insufficient evidence presented from which
the court could have independently determined that these generic
amounts, labeled simply “Medical” and “Medical Facility,”
represented medical services for injuries proximately caused by
Blake. Certainly, there was information before the court about the
general procedures UOVC representatives employ to assure that
the medical charges are “crime-related,” and the court trusted that
UOVC had followed those procedures in this case. But a
restitution order based almost exclusively on such trust in
20200675-CA 6 2022 UT App 104
State v. Blake
UOVC’s methods and its assessment of “crime-relatedness”
inappropriately “delegate[s] the determination of proximate
cause to UOVC.” See id. ¶ 18 (cleaned up); see also id. ¶ 17
(recognizing that “mere ‘crime-relatedness’ falls short of the
proximate cause standard”).
¶13 In other words, even if a UOVC representative had
determined that there was a sufficient causal link between the
crime and the medical bills to satisfy UOVC procedures, the
district court may not simply rely on that determination when
making a restitution order. 4 And without reliance on UOVC’s
conclusory determinations, the only evidence supporting the
causal connection was that unidentified charges purportedly paid
for medical treatment for the crime victim occurred very close in
time to the crime. This is not sufficient to establish proximate
cause. Therefore, where the evidence presented by the State was
not sufficient to “allow the court to make its own, independent
determination” as to causation, the evidence was not a sufficient
basis for the restitution order. 5 See id. ¶ 19.
4. In this case, neither representative was personally involved in
the review of the bills relating to the victim’s medical services and
neither one testified (or proffered testimony) that the amounts
provided on the payment list were analyzed using standard
procedures.
5. The parties agree that neither prior case law nor the Crime
Victims Restitution Act specifies the burden of proof applicable to
claims for restitution, but both advocate for application of the
preponderance of the evidence standard. See generally State v.
Oliver, 2018 UT App 101, ¶ 22 n.4,
427 P.3d 495 (recognizing the
silence of appellate opinions and the act on the appropriate
burden of proof, but also recognizing that “in federal courts, and
in other state jurisdictions of which we are aware, the government
(continued…)
20200675-CA 7 2022 UT App 104
State v. Blake
¶14 The State resists this conclusion, arguing that a more
forthcoming statement of medical costs was not necessary
because the court may make “a reasonable estimate of the loss,”
see State v. Ogden, 2018 UT 8, ¶ 53,
416 P.3d 1132 (cleaned up). But
while “the amount of damages may be based upon
approximations,” an award of restitution “must rely on a
sufficient evidentiary basis.” Id. ¶ 52 (cleaned up). And we cannot
agree that simply knowing that medical services were needed by
the victim on dates near the crime date was a sufficient
evidentiary basis to conclude that each of the generic payment
amounts was for services proximately caused by the shooting.
The court’s assumptions required reliance on the causal
determinations made by UOVC, which, for the reasons discussed
above, is not appropriate. We therefore reverse the district court’s
restitution order.
CONCLUSION
¶15 The evidence provided by the State was insufficient to
support the district court’s determination that the amounts
included on the payment list provided by UOVC for unidentified
medical services were proximately caused by Blake’s criminal
conduct. We therefore reverse the district court’s restitution order.
bears the burden of proving the restitution amount, including the
requisite causal link, by the preponderance of the evidence”
(cleaned up)). Accordingly, we apply that standard here and leave
resolution of that issue for another day.
20200675-CA 8 2022 UT App 104
