State v. Brown

This opinion is subject to revision before final

publication in the Pacific Reporter.

2014 UT 48

IN THE

SUPREME COURT OF THE STATE OF UTAH

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STATE OF UTAH,

Appellee,

v.

MICHAEL ADAM BROWN,

Appellee.

______________________________________________

L.N., Victim and Appellant

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No. 20130275

Filed October 24, 2014

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Sixth District, Kane County

The Honorable Wallace A. Lee

No. 11160026

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Attorneys:

Sean D. Reyes, Att’y Gen., Laura B. Dupaix, Ryan D. Tenney,

Asst. Att’ys Gen., Salt Lake City, Richard Van Dyke,

Kane County, for appellee State of Utah

William Leigh, Cedar City, for appellee Michael Adam Brown

Brandon Simmons, Spencer Banks, Salt Lake City, for appellant

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JUSTICE LEE authorized the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE DURHAM, and JUSTICE PARRISH joined.

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JUSTICE LEE, opinion of the Court:

¶1 L.N. is the alleged victim of the sex crimes charged in this

criminal case against Michael Adam Brown. In the proceedings

below, L.N. sought to intervene by filing a notice of a claim for

restitution. The district court rejected L.N.’s filing on the ground

that she was not a proper party and thus lacked standing to file

pleadings. It also denied a parallel request for restitution filed by

STATE v. BROWN

Opinion of the Court

the State, concluding that the travel expenses and lost wages in-

curred by L.N. and her mother fell beyond the scope of recovera-

ble restitution under Utah Code section 77-38A-302(5)(b).

¶2 L.N. appeals, asserting error in the district court’s denial of

her right to file a notice of claim for restitution and in the denial of

the State’s parallel claim. Brown defends the district court’s deci-

sions on all counts. The State, for its part, essentially agrees with

L.N. Although the State claims that the question of L.N.’s stand-

ing to file pleadings is somehow moot, it nonetheless defends

L.N.’s limited-party status. And it also argues against the denial of

its claim for restitution on L.N.’s behalf.

¶3 We conclude that a crime victim has limited-party status

under Utah Code Title 77, Chapter 38a and related provisions,

and thus has standing to file a request for restitution. Yet we deem

the error in denying L.N.’s filing harmless, as we affirm the denial

of the State’s (identical) request for restitution for travel expenses

and lost wages on its merits. On this question, we interpret the

governing statutes to allow restitution only for the pecuniary

damages that a victim could recover in a civil action arising out of

the defendant’s criminal conduct. And because the travel ex-

penses and lost wages sought here would not be available in such

a proceeding, we affirm the judgment of the district court.

I

¶4 In March 2011, defendant Michael Brown was charged with

several crimes involving sexual conduct with a minor. L.N. was

the alleged victim on each charge. Early in the proceedings, L.N.’s

counsel sought to enter an appearance for the purpose of asserting

a claim for restitution for L.N. The district court denied that re-

quest. In so doing it held that L.N. was not a proper party, but in-

dicated that counsel would be allowed to speak on L.N.’s behalf

where appropriate.

¶5 In early 2012, Brown pleaded guilty to a single count of un-

lawful sexual activity with a sixteen or seventeen year old. He re-

ceived a term not to exceed five years, probation, and was ordered

to pay an award of restitution to the victim. Restitution was not

fixed at an exact amount, however, but was to remain open dur-

ing Brown’s probation and to be determined later.

¶6 During the criminal proceedings L.N.’s mother attended

several hearings on her daughter’s behalf. Sometimes the mother

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Opinion of the Court

attended alone. On other occasions she was accompanied by L.N.

About one month after Brown was sentenced, L.N. filed a notice

of a claim for restitution, seeking $612.00 for lost wages incurred

by L.N.’s mother while attending the hearings, and $616.00 for

costs incurred in traveling to the hearings.

¶7 Brown objected and moved to strike L.N.’s request, assert-

ing that L.N. and her mother were not entitled to restitution for

such expenses under Utah law and, in any event, that L.N. did not

have standing to file such a pleading in the criminal action. Thus,

according to Brown, a crime victim’s only avenue for seeking res-

titution in a criminal case is through the intermediary of the pros-

ecution, which could file a request for restitution on the victim’s

behalf.

¶8 At that point the State filed its own request for restitution,

seeking $1,228.00 on L.N.’s behalf. 1 Brown objected to the State’s

request on the ground that travel costs and lost wages incurred to

attend hearings are not recoverable as restitution.

¶9 In August 2012, the district court heard oral argument from

counsel for the State, Brown, and L.N. on the merits of the State’s

restitution request and on the question whether L.N. was a proper

party with standing to file her own request. The district court

granted Brown’s motion to strike, holding that crime victims are

not parties to criminal proceedings and thus lack standing to file

pleadings, including requests for restitution. The district court al-

so rejected the restitution claim on its merits, concluding that a

victim’s lost wages and costs of traveling to hearings are not eligi-

1 The evidence submitted in support of the restitution requests

indicated that L.N. and her mother had moved from Page, Arizo-

na, to Flagstaff, Arizona, because the defendant was a prominent

member of the community in Page and it had become difficult for

them to continue residing there. The trial and hearings were held

in Kanab, Utah. When L.N. and her mother attended, they tra-

veled 140 miles round-trip from Page and 420 miles round-trip

from Flagstaff. The travel expenses were based on 2011 federal

mileage reimbursement rates. The lost wages were based on

L.N.’s mother’s pay rates in Page and Flagstaff, for twelve hours

at each rate.

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Opinion of the Court

ble for restitution under Utah Code section 77-38A-302(5)(b) when

the victim is not subpoenaed or otherwise compelled to attend.

¶10 L.N. filed a timely notice of appeal. See UTAH CODE § 77-38-

11(2)(b) (recognizing right of appeal from “[a]dverse rulings . . .

on a motion or request brought by a victim of a crime”). The ap-

peal was certified for our consideration by the court of appeals.

See UTAH CODE § 78A-4-103(3). Our review of the district court’s

legal determinations is de novo; we afford no deference to its legal

analysis. City of Grantsville v. Redev. Agency, 2010 UT 38, ¶ 9, 233

P.3d 461.

II

¶11 L.N. raises two grounds for challenging the district court’s

decision on appeal. First is her challenge to the denial of her right

to intervene as a party for the purpose of filing a notice of a claim

of restitution. Second is her assertion of error—seconded by the

State—in the determination that travel expenses and lost wages

are not compensable restitution under Utah Code section 77-38a-

302.

¶12 We agree on the first point and thus find error in the denial

of L.N.’s right to intervene for the limited purpose of filing a no-

tice of claim for restitution. But we deem that error harmless

based on our affirmance of the merits of the decision denying the

State’s request for restitution on L.N.’s behalf. Thus, because we

deem the travel expenses and lost wages sought by L.N.—and

echoed by the State—to be non-compensable, we affirm despite a

threshold error in the denial of L.N.’s request for intervention.

A

¶13 The right of crime victims to be heard in criminal cases is a

matter enshrined in our constitution and expounded upon in our

code. Under article I, section 28 of the Utah Constitution, victims

have the right “to be heard at important criminal justice hearings

related to the victim.” UTAH CONST. art. I, § 28(1)(b). By statute,

moreover, the term “[i]mportant criminal justice hearings” in-

cludes court proceedings involving restitution. UTAH CODE § 77-

38-2(5)(f).

¶14 The right to be heard, however, is not the same as a right to

file a pleading in a criminal case. Pleadings are filed only by par-

ties, and the traditional parties to a criminal proceeding are two—

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the prosecution and the defendant. The question presented here is

whether the governing statutes recognize a victim’s limited-party

status for the purpose of filing a notice of a claim for restitution.

¶15 We interpret the governing statutes to protect that right,

and thus to preserve L.N.’s standing to file her notice of restitu-

tion. 2 In so holding, we first reject Brown’s threshold assertion of

mootness—a position he bases on the fact that the State filed its

own request for restitution seeking the same funds requested by

L.N. This is not a problem of mootness—a change of circums-

tances resulting in the elimination of the parties’ controversy, or

rendering the relief requested by the claimant impossible or of no

effect. Utah Transit Auth. v. Local 382 of the Amalgamated Transit

Union, 2012 UT 75, ¶ 14, 289 P.3d 582. It is a much more ordinary

circumstance, involving only the existence of two alternative

grounds for the relief sought by L.N. The existence of two alterna-

tives is not a mooting event rendering our decision advisory. We

accordingly proceed to the question of L.N.’s standing to file a

claim for restitution as a party in this criminal proceeding.

¶16 As an initial matter, we concede a general point advanced

by Brown: The traditional parties to a criminal proceeding are the

prosecution and the defense, and a crime victim is not that kind of

party; a victim is not entitled to participate at all stages of the pro-

ceedings or for all purposes. But that does not eliminate the possi-

2 The notion of “standing” at issue here is not the traditional

sense of that term—as argued by the parties at some length in

their briefs on appeal. Thus, the issue is not whether L.N. suffered

a cognizable injury with a causal nexus to Brown’s misconduct

and redressable by an order of the court. See Jenkins v. Swan, 675

P.2d 1145, 1148, 1150 (Utah 1983) (stating that standing requires a

“distinct and palpable injury” with a “causal relationship” to the

alleged misconduct for which the court’s relief is “substantially

likely to redress the injury claimed”). On that point there is no

question of L.N.’s standing. But there is a threshold, antecedent

issue that is also sometimes framed in terms of standing. That is-

sue does not concern injury, nexus, or redressability, but party

status. Thus, to be legally eligible—or in this sense to have stand-

ing—to participate in certain proceedings, a person or entity must

also qualify as a proper party. That is the question here, addressed

in detail below.

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Opinion of the Court

bility that a victim may qualify as a limited-purpose party—with

standing to assert a claim for restitution. And we conclude that

crime victims possess that status under our law.

¶17 Some victims’ statutory rights are expressly framed as re-

quests to be submitted to the prosecution (and in terms of a duty

of the prosecution). Under Utah Code section 77-37-3(1)(b), for ex-

ample, victims “have a right to be informed and assisted as to

their role in the criminal justice process,” but that right is express-

ly tied to a “duty” of “[a]ll criminal justice agencies . . . to provide

this information and assistance.” Thus, the right to be informed is

not coupled with a direct right of participation; it is mediated

through a duty of the prosecution.

¶18 The right to restitution is different. Our crime victims bill of

rights recognizes the right of a victim to “seek restitution or repa-

rations.” UTAH CODE § 77-37-3(1)(e). The right to “seek” connotes

a proactive right to “go in search of,” or to “try to acquire or

gain.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2055

(2002). And other provisions of the code confirm that the antic-

ipated mode of seeking restitution is not through the intermediary

of the prosecution, but by a direct filing by the victim. Thus, “after

giving notice to the prosecution and the defense,” a victim is ex-

pressly authorized to “seek an appropriate remedy for a violation

of a victim’s right from the judge assigned to the case involving the is-

sue.” UTAH CODE § 77-38-11(2)(a)(iii) (emphasis added).

¶19 These provisions recognize a victim’s status as a limited-

purpose party. They confirm that our law contemplates a formal

role for crime victims—a role in which they have standing to file

and pursue a claim for restitution and are not required to await

and benefit from the filings of the prosecution. That conclusion is

confirmed by the recognition of a victim’s right to appeal any

“[a]dverse rulings on . . . . a motion or request brought by a victim

of a crime or representative of a victim of a crime.” Id. § 77-38-

11(2)(b) (emphasis added). Non-parties have no standing to file

motions or to otherwise request relief. Such rights are conferred

only on parties.

¶20 We accordingly deem victims to possess the status of a li-

mited-purpose party with the right to file a request for restitution.

And on that basis we find error in the district court’s decision to

strike L.N.’s request for restitution.

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B

¶21 When a defendant is convicted of a crime resulting in “pe-

cuniary damages,” our statutes require the court to “order that the

defendant make restitution” to the victims. UTAH CODE § 77-38a-

302(1). Two kinds of restitution are described in the code: “com-

plete restitution,” a calculation of the restitution necessary to

compensate for all losses caused, and “court-ordered restitution,”

a subset of complete restitution that, among other things, takes

into account the defendant’s circumstances. Id. § 77-38a-302(2). See

generally State v. Laycock, 2009 UT 53, ¶19–34, 214 P.3d 104 (dis-

cussing the differences between complete and court-ordered resti-

tution).

¶22 In the calculation of complete and court-ordered restitu-

tion, the victim is limited to recovering only “pecuniary damag-

es.” UTAH CODE § 77-38a-102(11) (limiting all restitution to “full,

partial, or nominal payment for pecuniary damages to a victim,

including prejudgment interest”). And “[p]ecuniary damages,” in

turn, are defined as “all demonstrable economic injury, whether

or not yet incurred, which a person could recover in a civil action

arising out of the facts or events constituting the defendant’s crim-

inal activities.” Id. § 77-38a-102(6). By statute, such damages in-

clude “the fair market value of property taken, destroyed, broken,

or otherwise harmed, and losses including lost earnings and med-

ical expenses,” but exclude “punitive or exemplary damages and

pain and suffering.” Id.

¶23 The restitution at issue in this case is not properly com-

pensable under this definition. In a civil tort action against Brown

arising out of his criminal activity, L.N. and her mother would not

be eligible to recover the lost wages or travel costs that were re-

quested in this case. There is no Utah authority directly on point

here, but there is no question that such damages would not be

compensable pecuniary damages in an action for sexual assault

and battery under Utah law. After all, the longstanding, well-

settled rule of the Restatement generally forecloses recovery of

costs or expenses incurred in the maintenance of, or related to, lit-

igation. RESTATEMENT (SECOND) OF TORTS § 914 (1979). This prin-

ciple, moreover, has been endorsed nearly universally in the

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courts of the various states, 3 and we find it likewise consistent

with our law. 4

¶24 On that basis we conclude that the lost wages and expenses

requested for L.N. and her mother are not “pecuniary damages”

compensable as an element of restitution. And we affirm the dis-

trict court’s decision denying the State’s request on that ground,

and therefore conclude that the error in not allowing L.N. to file

her own notice of a claim for restitution was harmless.

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3 See 1 ATTORNEYS’ FEES § 6:1 (3d ed.) (citing cases); 22 AM. JUR.

2D Damages § 444 (2013) (citing cases).

4 See Hughes v. Cafferty, 2004 UT 22, ¶ 21, 89 P.3d 148; Blake v.

Blake, 412 P.2d 454, 456 (Utah 1966).

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