State v. Blake

2022 UT App 104
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S HON 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 J UDGES
M ICHELE M. C HRISTIANSEN F ORSTER and R YAN 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
20200675-CA 	2 	2022 UT App 104
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.

State v. Blake
20200675-CA 	3 	2022 UT App 104
¶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.

State v. Blake
20200675-CA 	4 	2022 UT App 104
¶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.”).

State v. Blake
20200675-CA 	5 	2022 UT App 104
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).

State v. Blake
20200675-CA 	6 	2022 UT App 104
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

State v. Blake
20200675-CA 	7 	2022 UT App 104
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…)

State v. Blake
20200675-CA 	8 	2022 UT App 104
¶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.