State v. Gibson

2017 UT App 142
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DYLAN D EVON GIBSON ,
Appellant.
Opinion
No. 20150353-CA
Filed August 3, 2017
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 141400554
Alexandra S. McCallum and Wesley J. Howard,
Attorneys for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE K ATE A. TOOMEY authored this Opinion, in which J UDGES
S TEPHEN L. R OTH and M ICHELE M. C HRISTIANSEN concurred. 1
TOOMEY, Judge:
¶1 	Dylan Devon Gibson pleaded guilty to theft by receiving
stolen property, a third degree felony. In connection with the
offense, the district court ordered Gibson to pay $13,000 in
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.

State v. Gibson
20150353-CA 	2 	2017 UT App 142
restitution to Rocky Mountain Power (RMP).2 Gibson appeals,
arguing the restitution award is not legally justified. We agree
and therefore reverse and remand.
¶2 	Early in the morning on February 17, 2014, an unknown
person cut through the fence of an RMP substation and stole
approximately 	200 	feet 	of 	copper 	ground 	wire 	and
accompanying brass fittings. Later that day, RMP reported the
theft and damage to the police. The following day, Gibson sold
the same length of copper wire and brass fittings to Utah Metal
Works, 	a 	scrap 	metal 	recycler, 	for 	$65. 	Suspicious 	of 	the
transaction, a Utah Metal Works employee contacted the West
Jordan Police Department. The police investigated the wire and
fittings, photographed the materials, and sent them to RMP for
its review.
¶3 	Three 	RMP 	employees 	viewed 	the 	images 	and
determined the wire and fittings sold to Utah Metal Works were
indeed the same wire and fittings that were stolen from RMP’s
substation on February 17. The wire was painted gray, RMP’s
standard practice for decreasing the resale value of copper wire.
In addition, the length and size of the wire sold to Utah Metal
Works were identical to the wire stolen from RMP; the number
of fittings also matched.
¶4 	Gibson was arrested and charged with one count of theft
by receiving stolen property, a third degree felony. At the time
of his arrest, Gibson was riding a bike with a set of bolt cutters
used as a makeshift seat. Gibson claimed that a friend had given
him the bolt cutters and the wire and fittings. He admitted he
sold the wire and fittings to Utah Metal Works but denied
2. The court also ordered Gibson to pay $65 in restitution to Utah
Metal Works, but he concedes that portion of the order was
appropriate.

State v. Gibson
20150353-CA 	3 	2017 UT App 142
having 	anything 	to 	do 	with 	the 	initial 	theft 	from 	RMP’s
substation. 	Consistent 	with 	this 	statement, 	Gibson 	pleaded
guilty based on the following facts:
On 	or 	about 	February 	18, 	2014, 	in 	Salt 	Lake
County, [Gibson] sold several pieces of copper
wiring and fittings to a scrap dealer. [Gibson] had
reason to believe the items, valued at less than
$500.00, had been stolen. Within the previous ten
years, 	[Gibson] 	has 	twice 	been 	convicted 	of
enhancing offenses.
In 	his 	plea 	agreement, 	Gibson 	admitted 	to 	the 	following
elements:
1) 	On or about February 18, 2014
2) 	in Salt Lake County
3) 	Dylan D. Gibson
4) 	having twice been convicted, within the past 10
years of enhancing offenses
5) 	disposed property of another
6) 	valued at less than $500.00
7) 	while knowing or believing the property was
stolen
Gibson further agreed to pay “all valid restitution claims within
the limit of the law.”
¶5 	The district court sentenced Gibson to a suspended prison
term of zero to five years, placed him on probation, and ordered
him to serve 210 days in jail. The court ordered him to pay $65 in
restitution to Utah Metal Works but left open the issue of
restitution as to RMP.
¶6 	The State submitted a motion for restitution on behalf of
RMP and a supporting letter from RMP’s assistant general
counsel outlining its damages. RMP estimated its loss equaled

State v. Gibson
20150353-CA 	4 	2017 UT App 142
$13,000: “$700 for replacement of the 200’ 4/0 [gauge] copper
materials, 	$300 	for 	fence 	grounds 	and 	other 	miscellaneous
connectors and $12,000.00 in labor expense.” Gibson objected,
arguing an award of restitution to RMP was not legally justified,
because Gibson admitted only to receiving the stolen items; he
was not charged with or responsible for the initial theft from
RMP.3
¶7 	After considering the parties’ written submissions and
oral arguments, the court found that RMP’s itemized breakdown
of its losses was accurate, and it ordered Gibson to pay RMP the
full $13,000 in restitution. The court explained that although it
did not know who committed the initial theft of the materials,
Gibson’s selling of the materials within a short period after the
initial theft was “as effectual” as the initial taking because of the
“phenomenon of the way [copper] is moved.” Gibson appeals.
¶8 	Gibson contends the district court erred in ordering him
to pay restitution to RMP because “[a] defendant cannot be
ordered to pay restitution for criminal activities for which the
defendant did not admit responsibility, was not convicted, or
did not agree to pay restitution.” Normally, an appellate court
“will not disturb a trial court’s restitution order unless it exceeds
that prescribed by law or otherwise abused its discretion”;
however, the “proper interpretation of a statute is a question of
law,” which we review for correctness. State v. Mast, 2001 UT
App 402, ¶ 7, 40 P.3d 1143 (citations and internal quotation
marks omitted). We conclude that the resolution of the question
presented here requires us to interpret the meaning of the
3. Before the parties briefed the district court on the RMP
restitution issue, in an order to show cause hearing, the State
acknowledged 	that, 	after 	reviewing 	the 	relevant 	case 	law,
Gibson had a strong argument and that he “might prevail” on
this issue.

State v. Gibson
20150353-CA 	5 	2017 UT App 142
restitution statute. See Utah Code Ann. § 76-3-201 (LexisNexis
Supp. 2016).
¶9 	“When a person is convicted of criminal activity that has
resulted in pecuniary damages, . . . the court shall order that the
defendant make restitution to the victims, or for conduct for
which the defendant has agreed to make restitution as a part of a
plea agreement.” Id. § 76-3-201(4)(a). In this context, “criminal
activity” includes “any other criminal conduct for which the
defendant admits responsibility to the sentencing court.” Id.
§ 76-3-201(1)(b). “[R]estitution can include payment for crimes
not listed in the information so long as a defendant admits
responsibility or agrees to pay restitution.” State v. Bickley, 2002
UT App 342, ¶ 9, 60 P.3d 582.
¶10 	When determining whether a defendant has “admitted
responsibility,” 	the 	sentencing 	court 	must 	not 	“analyze 	a
defendant’s state of mind” or make any inferences about the
defendant’s culpability; rather, the court must focus on the
admissions made by the defendant. See Mast, 2001 UT App 402,
¶ 13 (citation and internal quotation marks omitted). Moreover,
responsibility must be “firmly established, much like a guilty
plea.” Id. (citation and internal quotation marks omitted).
¶11 	Regardless of whether a defendant has been convicted of
a certain offense by a jury or by a guilty plea or has otherwise
admitted 	responsibility 	to 	a 	particular 	criminal 	activity,
restitution awards are limited by the pecuniary damages caused
by the admitted conduct. See State v. Brown, 2009 UT App 285,
¶ 10, 221 P.3d 273 (“[T]o 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.”); see also Utah Code Ann. § 76-3-201(4)(a)
(“When a person 	is convicted of criminal activity that has
resulted in pecuniary damages, . . . the court shall order that the
defendant 	make 	restitution 	to 	the 	victims . . . .” 	(emphasis

State v. Gibson
20150353-CA 	6 	2017 UT App 142
added)). 	To 	determine 	whether 	a 	restitution 	award 	is
appropriate, and to what extent, courts apply a “modified ‘but
for’ test.” Brown, 2009 UT App 285, ¶ 11. This test “requires that
(1) the damages ‘would not have occurred but for the conduct
underlying the . . . [defendant’s] conviction’ and (2) the ‘causal
nexus between the [criminal] conduct and the loss . . . is not too
attenuated (either factually or temporally).’” Id. (alterations and
omission in original) (quoting State v. McBride, 940 P.2d 539, 544
n.5 	(Utah 	Ct. 	App. 	1997) 	(additional 	citation 	and 	internal
quotation marks omitted).
¶12 	Gibson argues that “[b]ecause [his] sale of the stolen
property did not cause the damages claimed by RMP, [he] could
only be responsible for the damages if he admitted involvement
in the initial taking or agreed to pay RMP restitution” and that
“[he] did neither.” Although the State “does not suggest that
Gibson pleaded guilty to or otherwise accepted responsibility for
taking the material from the substation,” the State contends “it
was not necessary for him to do so to establish his culpability for
theft of the material.” The State argues the nature of Utah’s
consolidated theft statute, the “economic reality” of the market
for stolen copper materials, and the possibility that Gibson may
have acted in tandem with the initial thief to facilitate the sale to
Utah Metal Works, compel a conclusion that the restitution
award was appropriate. We disagree.
¶13 	Utah’s consolidated theft statute provides that “conduct
denominated 	theft 	in 	this 	part 	constitutes 	a 	single 	offense
embracing the separate offenses such as those heretofore known
as larceny, larceny by trick, larceny by bailees, embezzlement,
false pretense, extortion, blackmail, receiving stolen property.”
Utah Code Ann. § 76-6-403 (LexisNexis 2012). In the State’s view,
when 	Gibson 	pleaded 	guilty 	to 	theft 	by 	receiving 	stolen
property, he also admitted responsibility for the initial theft
because all categories of theft are considered a single offense

State v. Gibson
20150353-CA 	7 	2017 UT App 142
under 	the 	consolidated 	theft 	statute. 	The 	State’s 	argument
suffers from a number of problems.
¶14 	The 	State 	ignores 	the 	purpose 	and 	effect 	of 	the
consolidated theft statute. The statute’s purpose is “to prevent a
defendant from escaping an otherwise valid theft charge on a
mere technicality in the pleadings.” State v. Bush, 2001 UT App
10, ¶ 15, 47 P.3d 69. “‘[A]ll that is now required is to simply
plead the general offense of theft and the accusation may be
supported by evidence that it was committed in any manner
specified in sections 404 through 410 of the Code . . . .’” Id. ¶ 12
(omission in original) (quoting State v. Taylor, 570 P.2d 697, 698
(Utah 1977)). Moreover,
“[i]n 	order 	to 	prevent 	a 	charge 	based 	on 	one
method 	of 	unlawfully 	obtaining 	property 	from
being defeated by the defense that the property
was acquired by a different unlawful method, the
statute allows the [State] to introduce evidence at
trial of any form or theft regardless of the form of
theft charged, but always subject to the defendant’s
rights to fair notice and an opportunity to defend.”
Id. ¶ 15 (quoting Commonwealth v. Martin, 577 A.2d 200, 203 (Pa.
Super. Ct. 1990)). Thus, although the consolidated theft statute
allows a prosecutor to plead a general theft offense and then
prove the elements of any type of theft enumerated in the Utah
Code or to amend the information from one theory of theft to
another, 	provided 	the 	amendment 	does 	not 	violate 	the
defendant’s right to fair notice and an opportunity to defend, the
State must ultimately prove all the elements of one type of theft
in order to obtain a conviction. The consolidated theft statute
does not allow a conviction of one type of theft to carry with it
an admission of responsibility as to all forms of theft enumerated
under the Utah Code.

State v. Gibson
20150353-CA 	8 	2017 UT App 142
¶15 	Theft by receiving stolen property occurs when a person
“receives, 	retains, 	or 	disposes 	of 	the 	property 	of 	another
knowing that it has been stolen, or believing that it probably has
been stolen.” Utah Code Ann. § 76-6-408(1) (LexisNexis Supp.
2016). In pleading guilty to theft by receiving stolen property,
Gibson admitted only that he sold several pieces of copper
wiring and fittings to a scrap dealer while having reason to
believe the items had been stolen. Gibson did not thereby admit
responsibility for the initial theft.
¶16 	Even if, by pleading guilty to theft by receiving stolen
property, Gibson somehow admitted responsibility for generic
theft, 	an 	award 	for 	restitution 	is 	not 	appropriate, 	as 	we
previously explained, unless the defendant’s conduct meets the
“modified ‘but for’” test of causation. See Brown, 2009 UT App
285, ¶ 11. The State claims Gibson’s conduct satisfies this test
because “[b]y selling the property, Gibson also facilitated its
initial taking.” The State explains that, often times, a person who
wishes to steal copper materials turns to an accomplice to help
facilitate the sale. This is because, to sell copper materials to a
scrap metal recycler, a person must be at least eighteen years old,
present photographic identification, and be photographed by the
recycler to determine whether the person is a repeat seller. And
if that person is “underage, wants to stay under the radar, or
would be recognized by the scrap metal recycler as someone
who has sold stolen material in the past,” he or she may recruit
an accomplice to make the sale. Although some criminals may
use this scheme, there is no evidence to suggest Gibson acted as
an accomplice, and he certainly did not admit to such conduct.
¶17 	The State has not satisfied the modified but-for test. The
State argues that by depriving RMP of its materials and selling
them to Utah Metal Works, “Gibson caused not only the loss of
the material, he also caused the need for Rocky Mountain Power
to expend $12,000 worth of labor to replace it.” The State’s basis
for reaching this conclusion is dubious.

State v. Gibson
20150353-CA 	9 	2017 UT App 142
¶18 	The State suggests that in addition to the small gap
between the time the materials were stolen and the time Gibson
sold them, Gibson’s mere participation in the market for stolen
copper wire is sufficient for this court to conclude Gibson was a
but-for cause of RMP’s losses, because “without the prospect of a
quick sale, the initial thief would not have stolen such large
quantities of metal.” But in reaching this conclusion, the State
inverts 	the 	required 	analysis. 	When 	analyzing 	a 	but-for
causation question, we must “inquire as to what would have
occurred if the [defendant] had not engaged in the . . . conduct.”
USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 114, 372 P.3d 629
(omission in original) (citation and internal quotation marks
omitted). As Gibson correctly points out, if he had not sold the
materials, RMP would be in the same position: it would still
need to expend the $13,000 to replace and install the materials.
Thus, the State has not met its burden under the modified but-
for 	test, 	and 	the 	restitution 	award 	to 	RMP 	“exceeds 	that
prescribed by law.” See State v. Mast, 2001 UT App 402, ¶ 7, 40
P.3d 1143 (citation and internal quotation marks omitted).
¶19 	We conclude Gibson did not admit responsibility for
RMP’s losses, and the State has not met its burden to show that
Gibson was the but-for cause of them. We therefore reverse the
district court’s order of restitution as it relates to RMP’s losses
and remand to the district court to reduce its order consistent
with this decision.