State v. Oliver

2018 UT App 101

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHANDRA PARRY OLIVER,

Appellant.

Opinion

No. 20160582-CA

Filed June 7, 2018

Third District Court, West Jordan Department

The Honorable Charlene Barlow

No. 151400755

Marshall M. Thompson, Christine Seaman, and

Alexandra S. McCallum, Attorneys for Appellant

Sean D. Reyes and Lindsey L. Wheeler, Attorneys

for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE

JILL M. POHLMAN concurred. JUDGE MICHELE M. CHRISTIANSEN

concurred, with opinion.

HARRIS, Judge:

¶1 Chandra Parry Oliver’s boyfriend (Boyfriend) invited two

young men—one eighteen years old, the other nineteen years

old—over to Oliver’s house for the purpose of smoking

methamphetamine. After they arrived, all four of them smoked

methamphetamine together. Some time later, the young men

went into Oliver’s bathroom and, without Oliver’s knowledge,

swallowed additional methamphetamine. One of the young men

(Victim) overdosed, and later died.

¶2 Oliver eventually pled guilty to reckless endangerment, a

class A misdemeanor. The district court, at the State’s request,

State v. Oliver

ordered Oliver to pay Victim’s medical and funeral expenses as

restitution. Oliver appeals that restitution order, arguing that the

State did not present sufficient evidence demonstrating that her

actions were the proximate cause of Victim’s death, and

therefore she should not have been required to pay restitution.

We find Oliver’s arguments persuasive, at least in part, and

therefore vacate the restitution order and remand this case to the

district court for further proceedings.

BACKGROUND

¶3 On November 16, 2013, Victim (an eighteen-year-old

male) and his friend (Friend) called Boyfriend and asked if they

could come over to the house in which Oliver and Boyfriend

lived so that they could “get warm” and “smoke a bowl of

[m]eth.” Boyfriend granted them permission, and so Victim and

Friend came over to Oliver’s house. Once they arrived, Oliver,

Boyfriend, Victim, and Friend all smoked methamphetamine

together.

¶4 Soon thereafter, Victim and Friend went into the

bathroom at Oliver’s house. At the time, Oliver did not know

what they were doing in the bathroom, but as it turned out they

spent some of their time there ingesting additional

methamphetamine through a method known as “parachuting,” a

technique where an individual wraps methamphetamine in

toilet paper and then swallows it.

¶5 Later, after emerging from the bathroom, Victim and

Friend both “started acting funny.” Oliver and Boyfriend “had

another guy get [Victim] out to his car and go to the hospital,”

but for reasons unclear from the record, that effort failed.

Eventually, another person present called 911, and the

paramedics came and took Victim to the hospital. Victim later

died.

¶6 The State filed six criminal charges against Oliver,

including one count of obstructing justice, a third degree felony,

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State v. Oliver

see Utah Code Ann. § 76-8-306(1) (LexisNexis 2017); two counts

of possession or use of a controlled substance, one charged as a

third degree felony, and one charged as a class B misdemeanor

see id. § 58-37-8(2)(a)(i); two counts of reckless endangerment,

both class A misdemeanors, see id. § 76-5-112; and one count of

possession of drug paraphernalia, a class B misdemeanor, see id.

§ 58-37a-5(1). 1 Eventually, after plea negotiations, Oliver agreed

to plead guilty to possession of a controlled substance (reduced

to a class A misdemeanor) and one count of reckless

endangerment (also a class A misdemeanor) in exchange for the

State dropping the remaining charges.

¶7 On the date set for preliminary hearing, Oliver elected to

waive her right to that hearing and enter her plea instead. Before

it accepted Oliver’s plea, however, the district court asked about

the factual basis for the plea, and Oliver’s counsel stated as

follows:

On November 16th of 2013 in Salt Lake County,

Ms. Oliver was in possession and she used

methamphetamine. Additionally, she was residing

in a home where she allowed two other people to

use methamphetamine that resulted in the overdose

of one of those . . . individuals.

(Emphasis added.) After Oliver’s counsel recited the factual

basis, the district court asked Oliver, “Is that what happened,

Ms. Oliver?” Oliver answered “Yes.” At that point, the court

accepted and entered Oliver’s guilty plea.

¶8 After Oliver pled guilty, she provided the following

statement to probation officers who were preparing a

presentence report for the court:

1. Boyfriend also faced criminal charges stemming from the

same incident, and eventually pled guilty to one count of

reckless endangerment, a class A misdemeanor.

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State v. Oliver

[Friend and Victim] had called my boyfriend at the

times phone to see if they could come into our

house to get warm + smoke a bowl of Meth and he

told them yes. They came in and we all smoked

and then [Friend and Victim] went into the

bathroom and swallowed some meth and I did not

know this at the time then the guys both started

acting funny and we had another guy [there] get

[Victim] out to his car and go to the hospital but

then [another friend] [ended] up having to call 911

and the paramedics came + took [Victim] to [the]

hospital where he later had passed.

¶9 The district court held a sentencing hearing in February

2016. The court ordered Oliver to serve 120 days in jail (with the

remainder of two one-year jail terms suspended), and to serve

twenty-four months on probation, and imposed various terms

and conditions of probation. The court ordered that the issue of

restitution would “remain open” for ninety days. A few weeks

later, the State filed a motion seeking an order compelling Oliver

to pay $14,151.64 in restitution to Victim’s father to pay for

Victim’s hospital and funeral expenses. The State also asked the

court to order that the restitution amount be paid jointly and

severally by Oliver and Boyfriend.

¶10 Oliver objected to the State’s restitution request, arguing

generally that she “did not admit to facts which constitute the

proximate cause of [Victim’s] death.” Specifically, Oliver’s

causation objection was based entirely upon a superseding cause

argument, in which Oliver asserted that Victim’s “own ingestion

of a large quantity of methamphetamine . . . was the proximate

cause of his death” and that it was Victim’s own decision to

swallow methamphetamine that was “the direct and proximate

cause of his hospitalization and ultimate death resulting in the

restitution amounts.” Oliver made no specific argument that the

State had failed to prove a causal link between Victim’s overdose

and Victim’s death, and made no specific argument that she

20160582-CA 4 2018 UT App 101

State v. Oliver

should not be required to pay restitution jointly and severally

with Boyfriend.

¶11 After briefing, the district court held a hearing on the

State’s restitution request. The hearing was very short; the entire

transcript is only six pages long. Neither side presented any

actual evidence, whether through witnesses or through

documents, and the court heard no testimony from any witness.

Instead, attorneys for the State and for Oliver made legal

arguments regarding causation. Oliver’s attorney reiterated the

superseding cause argument made in the briefing, arguing

generally that Oliver’s conduct was not “the proximate cause of

[Victim’s] death,” and arguing specifically that “the proximate

cause of [Victim’s] death unfortunately and practically was his

own independent decision to ingest a lethal quantity of

methamphetamine.” As in her briefing, Oliver made no specific

argument that the State had failed to demonstrate a causal link

between the overdose and the death and made no specific

argument about joint and several liability. At the conclusion of

the hearing, the district court took the matter under advisement.

¶12 About a week later, the district court issued a decision

granting the State’s request for restitution, and ordering Oliver

to pay Victim’s hospital and funeral expenses. The court

reasoned that Oliver “allowed the victim to come to her home to

smoke methamphetamine” and that “[t]his in itself was

recklessly engaging in conduct that created a substantial risk of

death or serious bodily injury to the victim.” The court added

that “[i]t was also foreseeable that allowing someone to ingest

methamphetamine either by smoking or swallowing could lead

to death or serious bodily injury.”

ISSUES, STANDARDS OF REVIEW, AND PRESERVATION

¶13 Oliver now appeals the district court’s restitution order,

and asks us to consider two issues. First, Oliver argues that the

district court should not have ordered her to pay restitution,

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State v. Oliver

because (according to Oliver) the State failed to present sufficient

evidence to prove that Oliver’s actions were the proximate cause

of Victim’s overdose or death. The State asserts that this entire

argument is unpreserved. To preserve an issue for appellate

review, the issue “must be specifically raised, in a timely

manner, and must be supported by evidence and relevant legal

authority.” Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839.

“An issue is preserved for appeal when it has been presented to

the district court in such a way that the court has an opportunity

to rule on [it].” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443

(quotation simplified). We agree with the State that part of

Oliver’s first argument is unpreserved.

¶14 The lack-of-causation argument that Oliver advances on

appeal has two components: (1) that the State failed to present

sufficient evidence of a causal link between Oliver’s actions and

Victim’s overdose, and (2) that the State failed to present

sufficient evidence of a causal link between Victim’s overdose

and Victim’s death. As we explain below, the second part of

Oliver’s challenge on appeal—that there is not a sufficient causal

link between Victim’s overdose and Victim’s death—was not

preserved below; indeed, we conclude that any error that the

district court may have made on this point was invited by

Oliver. Therefore, we cannot disturb it on appeal.

¶15 The other part of Oliver’s lack-of-causation argument,

however, was preserved. As discussed below, we agree with

Oliver that she adequately presented to the district court her

argument, now advanced on appeal, that the State failed to

present evidence of a sufficient causal link between Oliver’s

conduct and Victim’s overdose. Accordingly, we review that

part of the district court’s restitution determination as we would

ordinarily do. “[I]n the case of restitution, a reviewing court will

not disturb a district court’s determination unless the court

exceeds the authority prescribed by law or abuses its discretion.”

State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104. “To the extent

that the district court made legal determinations in connection

with its restitution analysis, we review those legal

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State v. Oliver

determinations for correctness.” State v. Jamieson, 2017 UT App

236, ¶ 13, 414 P.3d 559 (citing State v. Brooks, 908 P.2d 856, 858–59

(Utah 1995)).

¶16 Second, Oliver argues that the district court erred by

ordering that the restitution be paid jointly and severally by and

between Oliver and Boyfriend. Oliver contends that she

preserved this argument for appeal when her counsel “argued

repeatedly that . . . Oliver could only be held liable for pecuniary

damages that were proximately caused by her admitted criminal

actions, not the actions of others.” The State disagrees, and

points out that Oliver “cites no place where she pointed the trial

court to the statutory authority she now says clearly shielded her

from joint and several liability.” We agree with the State that

Oliver did not preserve this second argument for appeal.

¶17 In opposition to the State’s restitution request, Oliver

argued generally that she did not proximately cause Victim’s

death, and argued specifically that Victim’s own conduct was a

superseding cause of his death. She did not explicitly alert the

district court to her position that she could not be jointly and

severally liable with Boyfriend; nor did she cite any legal

authority in support of the legal theory she now advances on

appeal. And at oral argument before the district court, Oliver

made the same arguments that she made in her briefing in

opposition to the State’s restitution request. As with her briefing,

during oral argument Oliver did not specifically argue that she

could not be jointly and severally liable with Boyfriend. We

conclude that Oliver’s general proximate causation challenge

was not sufficiently specific to alert the district court that Oliver

intended to raise the legal theory that she could not be jointly

and severally liable with Boyfriend. Therefore, the issue is

unpreserved.

¶18 Oliver nonetheless asks us to review this issue for plain

error. To prevail under plain error review, Oliver must establish

that (1) an error exists, (2) the error should have been obvious,

and (3) the error prejudiced her. Id. ¶ 20.

20160582-CA 7 2018 UT App 101

State v. Oliver

ANALYSIS

I. Proximate Causation

¶19 Under Utah’s Crime Victims Restitution Act, 2 “the court

shall order that the defendant make restitution to victims of

crime” when that defendant “enters into a plea disposition or is

convicted of criminal activity that has resulted in pecuniary

damages.” Utah Code Ann. § 77-38a-302(1) (LexisNexis 2017)

(emphasis added). Pecuniary damages, in turn, are defined as

“all demonstrable economic injury . . . including those which a

person could recover in a civil action arising out of the facts or

events constituting the defendant’s criminal activities.” Id. § 77-

38a-102(6).

¶20 While the statute certainly requires some causal

connection between the crime and the pecuniary damages, see id.

§ 77-38a-302(1) (stating that restitution is available when

“criminal activity” has “resulted in pecuniary damages”), the

statute does not provide any additional guidance as to the

strength of the causal connection required. Over the past several

decades, this court often applied a “modified ‘but for’

[causation] test” to determine whether criminal activity resulted

in pecuniary damages. See State v. Brown, 2009 UT App 285, ¶ 11,

221 P.3d 273, overruled by State v. Ogden, 2018 UT 8, ¶ 48 n.12.

Recently, however, our supreme court determined that the same

“proximate cause” standard ordinarily applied in civil cases

should apply in the criminal restitution context as well. See State

v. Ogden, 2018 UT 8, ¶ 39 (stating that “we opt for the reading

that harmonizes with the causation standard that would apply in

an analogous civil action: proximate cause”); see also id. ¶ 48 (“we

find that proximate cause is required to find that a ‘criminal

activity . . . has resulted in pecuniary damages’” (quoting Utah

Code section 77-38a-302(1))). Ogden explicitly “overrule[d] the

2. The entire Crime Victims Restitution Act is codified at Utah

Code sections 77-38a-101 to -601.

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State v. Oliver

body of court of appeals precedent applying [the] ‘modified but

for’ test.” Id. ¶ 48 n.12. Thus, we apply principles of proximate

causation in deciding this appeal.

¶21 Proximate cause has two elements. First, but-for

causation must be present; indeed, proximate cause “is that

cause which, in a natural and continuous sequence, unbroken by

any new cause, produced the injury, and without which

the injury would not have occurred.” Dee v. Johnson, 2012 UT

App 237, ¶ 4, 286 P.3d 22 (quotation simplified); see also Model

Utah Jury Instructions 2d (MUJI) CV209(1) (2016),

https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho

wRule&id=2#209 [https://perma.cc/FB39-NJJM] (defining the

first element of proximate cause as whether “the person’s act or

failure to act produced the harm directly or set in motion events

that produced the harm in a natural and continuous sequence”).

Second, the harm must be foreseeable. Dee, 2012 UT App 237,

¶ 5; see also MUJI CV209(2) (defining the second element of

proximate cause as whether “the person’s act or failure to act

could be foreseen by a reasonable person to produce a harm of

the same general nature”). Proximate cause requires “some

greater level of connection between the act and the injury than

mere ‘but for’ causation.” See Raab v. Utah Ry., 2009 UT 61, ¶ 23,

221 P.3d 219. The central question in assessing proximate cause

is “whether liability should attach to a particular cause in fact.”

Id. ¶ 22; see also USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 114,

372 P.3d 629 (stating that “[u]ltimately, a proximate cause

analysis looks to whether an individual who is a but-for cause of

the harm should nevertheless be excused from liability”). 3

3. Under our old “modified but-for” test, criminal conduct can

be said to “result[] in” pecuniary damages when “(1) the

damages would not have occurred but for the conduct . . . and

(2) the causal nexus between the [criminal] conduct and the

loss . . . is not too attenuated (either factually or temporally).”

State v. Gibson, 2017 UT App 142, ¶ 11, 405 P.3d 716 (quotation

(continued…)

20160582-CA 9 2018 UT App 101

State v. Oliver

¶22 A defendant may, of course, agree (for instance, as part of

a plea bargain) that a particular category of restitution was

proximately caused by her criminal activity, and may even agree

to pay a specific amount of restitution. See, e.g., State v. Bickley,

2002 UT App 342, ¶ 9, 60 P.3d 582 (stating that “restitution can

include payment for crimes not listed in the information so long

as a defendant admits responsibility or agrees to pay restitution”

(citing Utah Code Ann. § 76-3-201(8)(a) (LexisNexis 2017)). But

absent a stipulation by the defendant, the State bears the burden

of establishing restitution. See Brown, 2009 UT App 285, ¶ 10

(stating that “to include an amount in a restitution order, the

State must prove that the victim has suffered economic injury

and that the injury arose out of the defendant’s criminal

activities”); cf. Fox v. Brigham Young Univ., 2007 UT App 406,

¶ 21, 176 P.3d 446 (stating that “‘the causal connection between

the alleged negligent act and the injury is never presumed and

. . . this is a matter the plaintiff is always required to prove

affirmatively’” (quoting Jackson v. Colston, 209 P.2d 566, 568

(…continued)

simplified). These elements are similar to the elements of

proximate cause, in that both tests require the existence of “but-

for causation” as a threshold principle, and then both require an

examination of the strength of the causal nexus between the

conduct and the loss; indeed, on at least a few occasions over the

years, we referred to causation in the restitution context in terms

of proximate cause. See State v. Mast, 2001 UT App 402, ¶ 24, 40

P.3d 1143 (stating that a “trial court may impose restitution for

amounts proximately caused by defendant’s conduct”); see also

State v. Larsen, 2009 UT App 293, ¶ 8, 221 P.3d 277 (citing Mast

and stating that “the defendant could be ordered to pay only

‘restitution for amounts proximately caused by [her] conduct’”).

Still, though, we view the Ogden case as imposing a “more

stringent . . . test of legal causation” than our modified but-for

test, see State v. Ogden, 2018 UT 8, ¶ 44, and it therefore follows

that, after Ogden, the State’s burden of demonstrating a sufficient

causal link became at least somewhat heavier.

20160582-CA 10 2018 UT App 101

State v. Oliver

(Utah 1949))). And as part of this burden, the State must prove

the necessary causal link between a defendant’s criminal

conduct and a victim’s pecuniary damages. 4 Brown, 2009 UT

App 285, ¶ 10.

¶23 In this case, however, the factual record is scant: Oliver

waived her right to a preliminary hearing, no trial was ever held,

and the State—the party bearing the burden to prove the

necessary causal link—put no evidence into the record at the

restitution hearing. Indeed, at that hearing, neither party called

any witnesses to testify, and neither party offered any exhibits

into evidence.

¶24 Given the state of the record, the State conceded at oral

argument that the only actual facts properly before the court

must be drawn from three sources: (a) facts which are

necessarily part of the elements of the crimes to which Oliver

pled guilty; (b) the “factual basis” for Oliver’s plea, as stated on

the record at the change of plea hearing; and (c) the statement

Oliver provided to probation officers in connection with the

4. We are unaware of any Utah appellate opinions discussing the

level of proof required to prove restitution in a criminal case,

and the operative statute (the Crime Victims Restitution Act)

provides no guidance on the issue. However, in federal courts,

and in other state jurisdictions of which we are aware, the

“[g]overnment bears the burden of proving” the restitution

amount, including the requisite causal link, “by the

preponderance of the evidence.” See United States v. Wells, 873

F.3d 1241, 1265 (10th Cir. 2017); see also, e.g., In re Stephanie B., 65

P.3d 114, 118 (Ariz. Ct. App. 2003) (citing cases from several

jurisdictions, and stating that “[t]he burden of proof applicable

to restitution is proof by a preponderance of the evidence”).

Neither party has raised or briefed this issue in this appeal,

however, and so we refrain from here determining what level of

proof the State is required to meet.

20160582-CA 11 2018 UT App 101

State v. Oliver

preparation of her presentence report. 5 From this record, we

must evaluate Oliver’s arguments.

A. The Causal Link Between the Overdose and Victim’s

Death

¶25 We first examine Oliver’s argument that the State failed to

present sufficient evidence to prove a causal link between

Victim’s overdose and Victim’s eventual death. Even assuming,

without deciding, that no such evidence was introduced into the

record before the district court, 6 we conclude that any error in

this regard was invited by Oliver, because Oliver repeatedly

made representations to the district court that assumed precisely

such a causal link.

¶26 Significantly, at no point in her briefing or argument

before the district court did Oliver ever assert that the State had

failed to demonstrate the requisite causal link between Victim’s

overdose and his death. Instead, Oliver effectively admitted the

fact that Victim died of an overdose of methamphetamine,

5. The facts recited in the Background section, above, come from

these sources.

6. Based on our review of the record, Oliver’s argument that the

record contains no admissible evidence linking Victim’s

overdose with Victim’s death appears to be correct. None of the

three sources of facts contained in the thin record includes any

actual evidence that Victim died of a drug overdose. One cannot

infer a causal link from Oliver’s plea to reckless endangerment,

or from Oliver’s statements to either the district court at the plea

hearing or to probation officers during the preparation of her

presentence report. The presentence report refers to an “autopsy

[that] showed [that Victim] died due to drug toxicity,” but the

State concedes that the portion of the presentence report that

references the “autopsy” is inadmissible, and no party sought to

admit any such report before the district court.

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State v. Oliver

asserting in her briefing before the district court that it was

Victim’s “own ingestion of a large quantity of methamphetamine

that was the proximate cause of his death.” Oliver took this same

position at the restitution hearing, arguing there that “[t]he

proximate cause of [Victim’s] death unfortunately and

practically was his own independent decision to ingest a lethal

quantity of methamphetamine.” While these arguments certainly

raise a challenge to the strength of the causal link between

Oliver’s own actions and Victim’s overdose, they do not call into

question—and, indeed, effectively concede—the causal link

between Victim’s overdose and his death. Under these

circumstances, the argument Oliver makes now, on appeal, that

there is no evidence of such a causal link is not only unpreserved

for appellate review, but Oliver invited any error that might

exist in the district court’s ruling in this regard.

¶27 “Under the doctrine of invited error, an error is invited

when counsel encourages the trial court to make an erroneous

ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. The

invited error doctrine “discourages parties from intentionally

misleading the trial court so as to preserve a hidden ground for

reversal on appeal,” and it also “gives the trial court the first

opportunity to address [a] claim of error.” Id. (quotation

simplified). “[I]nvited error precludes appellate review of an

issue.” State v. McNeil, 2013 UT App 134, ¶ 24, 302 P.3d 844, aff’d,

2016 UT 3, 365 P.3d 699. Thus, when an error is invited by an

appellant, we will not review it even for plain error. State v.

Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171.

¶28 Here, Oliver invited any error in the district court’s ruling

by assuming—and even arguing to the district court—that there

existed a sufficient causal link between Victim’s overdose and

his death. While we are not suggesting that Oliver was

intentionally attempting to mislead the district court, Oliver’s

arguments—intentionally or not—did indicate that Oliver was

not contesting the existence of a causal link between Victim’s

overdose and Victim’s death. Had Oliver taken the position,

before the district court, that she considered the State’s proof of a

20160582-CA 13 2018 UT App 101

State v. Oliver

causal link between the overdose and the death insufficient, the

State could have easily taken steps at the restitution hearing

(such as introducing the autopsy report into evidence or calling

the medical examiner as a witness) to attempt to prove that

causal link. 7 Oliver made no such argument below, and even led

the district court to believe that Victim’s death was caused by a

methamphetamine overdose. We cannot now allow Oliver to

raise the argument here that there is no evidence of any causal

link between the overdose and the death.

¶29 Accordingly, we conclude that Oliver invited this claim of

error, and we will therefore not address it further. We take it as

an established fact, then, that Victim died as a proximate result

of an overdose of methamphetamine. 8

7. For this reason, our preservation doctrines apply here as well,

rendering Oliver’s specific argument here unpreserved. See

Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (stating that

“the preservation rule should be more strictly applied when the

asserted new issue or theory depends on controverted factual

questions whose relevance thereto was not made to appear at

trial” (quotation simplified)).

8. On remand, the existence of a sufficient causal relationship

between Victim’s overdose and Victim’s death must be taken as

established, because that issue is now the law of the case.

“[U]nder the law of the case doctrine, a decision made on an

issue during one stage of a case is binding on successive stages

of the same litigation.” IHC Health Services, Inc. v. D & K Mgmt.,

Inc., 2008 UT 73, ¶ 26, 196 P.3d 588 (quotation simplified). The

mandate rule, a subset of the law of the case doctrine, “binds

both the district court and the parties to honor the mandate of

the appellate court.” Id. ¶ 28. Under this rule, “the decisions of

an appellate court become the law of the case and cannot be

reconsidered on remand.” Mid-America Pipeline Co. v. Four-Four,

Inc., 2009 UT 43, ¶ 13, 216 P.3d 352. Because the district court

(continued…)

20160582-CA 14 2018 UT App 101

State v. Oliver

B. The Causal Link Between Oliver’s Conduct and Victim’s

Overdose

¶30 While Oliver cannot here challenge the strength of the

causal link between Victim’s overdose and his death, Oliver can 9

and does challenge the strength of the causal link between her

criminal conduct and Victim’s drug overdose. Specifically,

Oliver asserts that the State did not present evidence sufficient to

establish a proximate causal link between her conduct and

Victim’s drug overdose. Based on the record and procedural

posture of this case, we find Oliver’s arguments persuasive.

¶31 As noted above, proximate cause contains two basic

elements: (1) but-for causation, and (2) foreseeability. See Dee,

2012 UT App 237, ¶¶ 4–5. The State persuasively argues that

Oliver effectively conceded the existence of but-for causation

when her attorney stated in open court at the plea hearing that

(…continued)

made a ruling on the issue of a causal link between Victim’s

methamphetamine use and his overdose, and because Oliver

invited any error in that ruling and is therefore prevented from

appealing it, Oliver cannot re-litigate that issue on remand.

9. In its brief, the State argued that Oliver’s general causation

argument was unpreserved, because Oliver phrased her

arguments to the district court in terms of “proximate causation”

rather than in terms of the then-applicable “modified but-for”

causation standard. Oliver, however, was ahead of her time—as

noted, in Ogden our supreme court repudiated the “modified

but-for” test and held that principles of proximate causation are

to be applied in the restitution context. See Ogden, 2018 UT 8,

¶ 39; see also Mast, 2001 UT App 402, ¶ 24 (using “proximate

cause” terminology in the restitution context, even before

Ogden). Especially in light of Ogden, we have no trouble

concluding that Oliver preserved her general causation

arguments for appellate review.

20160582-CA 15 2018 UT App 101

State v. Oliver

Oliver “was residing in a home where she allowed two other

people to use methamphetamine that resulted in the

overdose . . . .” The district court asked Oliver if that was “what

happened,” and Oliver answered affirmatively. Thus, we agree

with the State that Oliver has conceded that allowing Victim into

her home to smoke methamphetamine set in motion a chain of

events that “produced the injury, and without which the injury

would not have occurred.” Id. ¶ 4 (quotation simplified). We

agree with the State that Oliver has effectively admitted the

existence of at least a but-for causal link between her actions and

Victim’s overdose—if Boyfriend, with Oliver’s tacit approval,

had not invited Victim and Friend over to their house to “smoke

a bowl,” Victim would not have overdosed on

methamphetamine.

¶32 Oliver argues, however, that the causal nexus is too

attenuated to constitute proximate cause. Specifically, Oliver

asserts that Victim died not from smoking methamphetamine

together with her and Boyfriend but, rather, died from his own

later additional oral ingestion of methamphetamine in the

bathroom, events she maintains she knew nothing about and did

not sanction. As she puts it, she “did not allow [Victim] to

parachute additional amounts of methamphetamine” and “could

not have foreseen that [Victim] would secretly swallow a

dangerous amount of methamphetamine in addition to

smoking.”

¶33 Although Oliver does not phrase it in precisely this way,

she is effectively arguing that a “superseding cause” broke the

chain of causation. 10 Under Utah law, “[a] superseding cause is

10. Before the district court, Oliver phrased her superseding

cause argument more explicitly, asserting in her written

memorandum that Victim’s “decision to ingest

methamphetamine was the ‘new cause’ or the intervening event

that was the direct and proximate cause” of his death, and

arguing during the restitution hearing that the causal link was

(continued…)

20160582-CA 16 2018 UT App 101

State v. Oliver

an unforeseeable act of subsequent negligence that severs the

causal connection to an initial causal act.” Thayer v. Washington

County Sch. Dist., 2012 UT 31, ¶ 61, 285 P.3d 1142 (Lee, J.,

dissenting); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 488

(Utah Ct. App. 1991) (stating that a “more recent negligent act

may break the chain of causation and relieve the liability of a

prior negligent actor”) (quotation simplified), aff’d, 862 P.2d 1342

(Utah 1993). A superseding cause is a magical thing: it operates

to relieve the original actor from all liability for her original (and

potentially tortious) act. See Steffensen, 820 P.2d at 488 (stating

that a superseding cause “relieve[s] the liability of a prior

negligent actor”); see also Restatement (Second) of Torts, § 440

cmt. b (Am. Law Inst. 1965) (stating that “[a] superseding cause

relieves the actor from liability, irrespective of whether his

antecedent negligence was or was not a substantial factor in

bringing about the harm”). 11

(…continued)

“broken by the intervening factor, the independent intervening

action” of Victim swallowing methamphetamine.

11. By relieving the original tortfeasor of all liability, the

superseding cause doctrine is at least arguably inconsistent with

principles of comparative fault, which have been a part of Utah

law since at least 1973. See Graves v. North E. Services, Inc., 2015

UT 28, ¶ 44, 345 P.3d 619 (stating that “[d]ecades ago our

legislature abrogated the common law doctrine of contributory

negligence” when it adopted the “1973 Comparative Negligence

Act”). However, we have previously stated that “we are

skeptical . . . that the comparative negligence statute supplanted

the doctrine of superseding cause,” because on many occasions

since 1973 Utah appellate courts have continued to refer to and

apply the doctrine. See Gardner v. SPX Corp., 2012 UT App 45,

¶ 35, 272 P.3d 175 (citing cases). In this case, however, we need

not directly address the question, because no party mounts any

argument here that the superseding cause doctrine has been

(continued…)

20160582-CA 17 2018 UT App 101

State v. Oliver

¶34 This doctrine, however, only applies to relieve the

original negligent actor of liability when the subsequent

negligent act is not “reasonably foreseeable” to the original actor.

Steffensen, 820 P.2d at 488. Indeed, a “superseding cause,

sufficient to become the proximate cause of the final result and

relieve [the original actor] of liability for his original negligence,

arises only when an intervening force was unforeseeable and

may be described with the benefit of hindsight, as

extraordinary.” Id.; see also Harris v. Utah Transit Auth., 671 P.2d

217, 219 (Utah 1983) (stating that a subsequent act of negligence

is not a superseding cause if either (a) the original actor “should

have realized” the third person might so act; (b) a reasonable

person “would not regard” the third person’s actions as “highly

extraordinary”; or (c) the “intervening act is a normal

consequence of a situation created by the actor’s conduct and the

manner in which it is done is not extraordinarily negligent”

(quoting Restatement (Second) of Torts § 447 (Am. Law Inst.

1965))). 12

(…continued)

supplanted by Utah’s comparative fault statutes. We therefore

assume, without deciding, that the doctrine retains its

robustness.

12. The superseding cause doctrine does not apply where the

original tortfeasor is accused of committing intentional torts. See

Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 4, 254 P.3d 161 (stating

that “intervening and superseding causes are not a defense to

intentional torts”). However, the relevant crime to which Oliver

pled guilty does not require intent; it requires only that Oliver

have acted recklessly. See Utah Code Ann. § 76-5-112(1)

(LexisNexis 2017) (stating that “[a] person commits reckless

endangerment if . . . the person recklessly engages in conduct that

creates a substantial risk of death or serious bodily injury to

another person” (emphasis added)). The State makes no

argument that the superseding cause doctrine does not apply

(continued…)

20160582-CA 18 2018 UT App 101

State v. Oliver

¶35 The State asserts that the requisite causal link between

Oliver’s actions and Victim’s death is present here, because

“Defendant’s admissions that she allowed Victim in her home to

use methamphetamine and that Victim overdosed as a result

establish[] that Defendant was at least a substantial causative

factor in Victim’s death.” But the State’s argument misses the

mark, because even if we were to assume that Oliver’s actions

were a “substantial causative factor” in Victim’s death, see

McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah

1993) (stating that “[t]o establish proximate cause, [a plaintiff]

must prove that [the defendant’s] conduct was a substantial

causative factor leading to his injury,” and that “there can be

more than one proximate cause . . . of an injury”), Oliver will

nevertheless be absolved of monetary liability if there exists a

superseding cause of Victim’s death, see Restatement (Second) of

Torts § 440 cmt. b (Am. Law Inst. 1965) (stating that “[a]

superseding cause relieves the actor from liability, irrespective of

whether his antecedent negligence was or was not a substantial

factor in bringing about the harm”).

¶36 And the district court simply did not meaningfully

engage with Oliver’s argument, explicitly made below, that

Victim’s own actions constituted a superseding cause of his

death. The district court’s ruling on the subject comprised one

paragraph, as follows:

While the victim did ingest the methamphetamine,

that did not absolve [Oliver] of her culpability for

the pecuniary damages. By her own statement, she

allowed the victim to come to her home to smoke

methamphetamine. This in itself was recklessly

engaging in conduct that created a substantial risk

(…continued)

where the tortfeasor is accused of committing reckless actions,

and we therefore assume, without deciding, that the doctrine is

available to Oliver under these circumstances.

20160582-CA 19 2018 UT App 101

State v. Oliver

of death or serious bodily injury to the victim;

allowing and abetting someone to ingest

methamphetamine is inherently risky. It was also

foreseeable that allowing someone to ingest

methamphetamine either by smoking or

swallowing could lead to death or serious bodily

injury.

While the district court did generally discuss whether Victim’s

death was or should have been foreseeable to Oliver, the district

court did not specifically discuss whether Victim’s actions in

parachuting methamphetamine were or should have been

foreseeable to Oliver, or whether those actions were

“extraordinary.” See Steffensen, 820 P.2d at 488 (quotation

simplified). A ruling on this point is necessary in order to

determine whether Victim’s actions constituted a superseding

cause of his death.

¶37 We could nevertheless affirm the district court’s ruling if

we were convinced that the record on appeal supported a

determination that Victim’s actions in parachuting

methamphetamine were not extraordinary and were (or should

have been) foreseeable to Oliver. See Bailey v. Bayles, 2002 UT 58,

¶ 10, 52 P.3d 1158 (stating that “an appellate court may affirm

the judgment appealed from if it is sustainable on any legal

ground or theory apparent on the record, even though such

ground or theory differs from that stated by the trial court”

(quotation simplified)). But we are not so convinced.

¶38 As noted above, the record in this case is spare, and

allows us to draw facts from only three sources: any facts

necessarily implied by Oliver’s plea; the one brief paragraph of

facts Oliver admitted during the plea colloquy; and Oliver’s

personal statement to probation officers. The State made no

effort to supplement that factual record through testimony or

documents. These factual sources tell us almost nothing about

whether Victim’s actions in parachuting methamphetamine were

extraordinary, or whether they should have been foreseeable to

20160582-CA 20 2018 UT App 101

State v. Oliver

Oliver. While it is possible that such a conclusion could

reasonably be drawn after a more complete restitution hearing

on remand, the record before us now hardly compels the

conclusion that Victim’s actions were not extraordinary and

were (or should have been) foreseeable to Oliver.

¶39 The district court did not hear testimony from Oliver, and

therefore we know very little about whether Oliver actually

could have foreseen that Victim and Friend would, after

smoking methamphetamine, retreat to the bathroom for the

purpose of parachuting additional methamphetamine. We know

from her statement to the probation officers that she “did not

know” that Victim and Friend were going to swallow additional

methamphetamine. But we do not know whether Victim and

Friend had ever done such a thing before; whether Oliver knew

that Victim and Friend were prone to such activity; whether

Oliver had ever parachuted methamphetamine before; or

whether Oliver knew that parachuting methamphetamine was

even a thing.

¶40 The district court likewise did not hear any evidence

about parachuting in general, other than the fact that Victim and

Friend had used that method to ingest additional

methamphetamine on the day in question. There was no

testimony that, for instance, parachuting is a common way of

ingesting methamphetamine; no witness, expert or lay, informed

the district court that persons familiar with using

methamphetamine would likely know about, and be able to

foresee the probability of, persons ingesting the drug by

swallowing it. 13 For all we know from this record, it is at least

13. Likewise, no evidence was provided regarding the medical

effects of swallowing (as opposed to smoking)

methamphetamine. The record does not inform us whether such

a method has a faster or slower effect on the user, and sheds no

light on the extent to which Victim’s ingestion of

methamphetamine made it more likely that he would overdose.

20160582-CA 21 2018 UT App 101

State v. Oliver

equally likely that ingesting methamphetamine by parachuting it

is extremely rare and not the type of thing that happens as a

matter of course following smoking.

¶41 Had the district court made a factual finding, based on

competent evidence, that Victim’s actions were foreseeable, we

would have deferred to such a finding. But the district court

made no such determination, and we are unable to affirm on

alternative grounds because the record before us does not

compel the conclusion that Oliver reasonably should have

foreseen Victim’s actions.

II. Joint and Several Liability

¶42 Oliver next argues that the district court erred in holding

her jointly and severally liable with Boyfriend for the full

amount of the restitution. As discussed above, this issue is

unpreserved. Therefore, we review it for plain error. To prevail

under a plain error review, Oliver must establish that (1) an error

exists, (2) the error should have been obvious, and (3) the error

prejudiced her. Johnson, 2017 UT 76, ¶ 20. Oliver’s argument

founders on the second element, because Oliver cannot

demonstrate that the district court made an “obvious” error.

¶43 “For an error to be obvious to the trial court, the party

arguing for the exception to preservation must show that the law

governing the error was clear or plainly settled at the time the

alleged error was made.” Id. ¶ 21 (quotation simplified); see also

State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997) (stating that

“a trial court’s error is not plain where there is no settled

appellate law to guide the trial court”). The question of whether

concepts of comparative fault apply in the restitution context—

and whether the civil law’s abolition of joint and several liability

should be imported into the restitution arena—is an interesting

and multifaceted one that has not yet been answered by Utah’s

appellate courts. There is no doubt that, one day, that question

will be properly raised and addressed. But for the time being,

there is no “settled appellate law” governing the question, and

20160582-CA 22 2018 UT App 101

State v. Oliver

we therefore cannot conclude that, by imposing a joint and

several restitution order, the district court committed a plain and

obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (to

establish obvious error, the defendant “must show that the law

governing the error was clear at the time the alleged error was

made”). Accordingly, Oliver has not shown that the district

court plainly erred by requiring her to pay restitution jointly and

severally with Boyfriend. 14

CONCLUSION

¶44 For the reasons set forth herein, we vacate the district

court’s restitution order, and remand this case to the district

court for additional restitution proceedings consistent with this

opinion, including potentially a new restitution hearing, during

which the district court should reconsider the question of

whether there exists a sufficient causal link between Oliver’s

actions and Victim’s overdose, and should specifically consider

whether Victim’s actions in parachuting methamphetamine were

a superseding cause of his death.

CHRISTIANSEN, Judge (concurring):

¶45 Based upon the Utah Supreme Court’s recent decision in

State v. Ogden, 2018 UT 8, and its determination that the

14. As with Oliver’s argument challenging the causal

relationship between Victim’s overdose and Victim’s death, see

supra ¶ 29 & n.8, Oliver is precluded from reasserting this

challenge on remand because our resolution of this issue is now

the law of the case. See Mid-America Pipeline Co., 2009 UT 43,

¶ 13; IHC Health Services, Inc., 2008 UT 73, ¶ 26. Because Oliver

failed to properly raise the issue in this appeal, Oliver will not be

permitted to resurrect it on remand.

20160582-CA 23 2018 UT App 101

State v. Oliver

“proximate cause” standard of causation should apply in

criminal restitution cases, I concur with the lead opinion’s

decision that this case must be remanded because the district

court did not address the issue of foreseeability and consider

specifically whether Victim’s actions in parachuting more

methamphetamine was a superseding cause of his death. I write

separately, however, to emphasize a point about the causation

standard in criminal restitution hearings that was recognized in

Ogden, which point stems from prior Utah Supreme Court and

Utah Court of Appeals decisions.

¶46 In State v. Robinson, 860 P.2d 979 (Utah Ct. App. 1993), this

court stated that “[m]atters of negligence, proximate cause and

the amount of resulting damages are best left to civil litigation.”

Id. at 983. The Utah Supreme Court agreed in State v. Laycock,

2009 UT 53, 214 P.3d 104—at least in dicta—when the court

noted that “there are procedural safeguards available to a

litigant in a civil setting that are unavailable in a criminal

restitution proceeding. When the facts of a case are limited or

unclear, the civil setting is the best place for them to be

determined.” Id. ¶ 29. The Ogden court again acknowledged this

point when it recognized “a number of the difficulties a

sentencing court [might] face in trying to resolve issues of

causation and losses, most notably a lack of opportunity for

discovery that would allow a defendant to ‘raise issues of

proximate cause and comparative negligence by using

depositions and interrogatories to gather relevant information.’”

2018 UT 8, ¶ 42 (quoting Laycock, 2009 UT 53, ¶ 22). But based

upon a plain language analysis of the Crime Victims Restitution

Act, our supreme court determined that the Utah Legislature

intended that the same causation standard applied in a civil

action would apply in the criminal restitution context. Id. ¶ 38.

¶47 Clearly, “the best evidence of the legislature’s intent is the

plain language of the statute itself,” and I cannot disagree with

the supreme court’s analysis in Ogden. Id. ¶ 31 (quotation

simplified). However, I think it is important to keep in mind all

of the practical limitations a sentencing court faces in ordering

20160582-CA 24 2018 UT App 101

State v. Oliver

restitution in a criminal case. If the Utah Legislature did not

intend for proximate cause to be the standard applied in the

criminal restitution context, it may want to amend the Crime

Victims Restitution Act.

20160582-CA 25 2018 UT App 101