Appeal in Maricopa County Juvenile Action No. JV-128676, Matter of

• Decision Date: 08 February 1994
• Docket Number: JV-128676,CA-JV,No. 1,1
• Citation: 868 P.2d 365,177 Ariz. 352
• Parties: In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO.93-029.
• Court: Arizona Court of Appeals

Page 365

868 P.2d 365

177 Ariz. 352

In the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NO. JV-128676.

No. 1 CA-JV 93-029.

Court of Appeals of Arizona Division 1, Department C.

Feb. 8, 1994.

Dean W. Trebesch, Maricopa County Public Defender by Suzette Pintard, Anne-Rachel Aberbach, Deputy Public Defenders, Phoenix, for Juvenile.

Richard M. Romley, Maricopa County Atty. by Diana Wilkes, Deputy County Atty., Phoenix, for the State.

OPINION

TOCI, Presiding Judge.

E.G., a juvenile, accepted a ride in a car stolen by another juvenile. When the stolen car was recovered, the victim observed that the car had been damaged and that certain items of personal property were missing. E.G. admitted delinquency and was later adjudicated delinquent of criminal trespass in the second-degree. The juvenile court found that E.G., another juvenile passenger, and the juvenile who stole the car were jointly and severally liable for the damage to the car and for the value of the missing items. The court then ordered E.G. to pay restitution to the victim. E.G. appeals from the restitution order.

The sole issue is whether a juvenile adjudicated delinquent for criminal trespass may be ordered to pay restitution where no evidence exists that the victim's damages were directly related to the juvenile's offense. We conclude that because the record fails to establish a direct causal relationship between E.G.'s criminal trespass and the victim's damages, the trial court should not have ordered E.G. to pay restitution. Therefore, we vacate the restitution order.

FACTS AND PROCEDURE

After the stolen car was recovered, the victim discovered that the car had been damaged and certain items of personal property removed. The steering column was cracked, the headlights smashed, an ashtray and the glove box broken, and the tinted windows scratched. In addition, a Walkman cassette player and eight cassettes were missing from the car. The victim established through a verified statement that the damage to the car plus the value of the missing items amounted to $956.69.

The state charged E.G. with one count of possession of dangerous drugs, one count of possession of marijuana, and one count of criminal trespass in the second degree. In a plea agreement, in exchange for the state's promise to dismiss the remaining two charges, E.G. admitted committing criminal trespass in the second degree. Without admitting liability for the victim's damages, E.G. agreed to pay restitution up to a maximum of $750.00 if found legally responsible for the damages.

At the adjudication hearing, the juvenile court accepted E.G.'s plea agreement and found that he committed second-degree criminal trespass in violation of Ariz.Rev.Stat.Ann. ("A.R.S.") sections 13-1501 and 13-1503 (1989 and Supp.1993). The factual basis for the plea agreement was E.G.'s admission that "[he] got in the car that [he] knew was stolen." After dismissing both drug possession charges, the court placed E.G. on probation and ordered that he pay restitution of $956.69. ¹ The court also entered an order holding E.G. and the other two juveniles jointly and severally liable for such restitution.

DISCUSSION

We will not disturb the juvenile court's disposition of a juvenile delinquent except for abuse of discretion. In re Appeal in Maricopa County Juvenile Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App.1992); A.R.S. § 8-241 (Supp.1993). In exercising its discretion, the juvenile court is not, however, authorized to misapply the law or a legal principle. City of Phoenix v. Geyler, 144 Ariz. 323, 328-29, 697 P.2d 1073, 1079-80 (1985). Here, the trial court misapplied the law of restitution.

It is clear that the juvenile court is authorized to make appropriate orders of restitution. A.R.S. section 8-241(C)(1) provides that "The [juvenile] court shall ... order ... a delinquent child ... [t]o make full or partial restitution to the victim of the offense for which the child was adjudicated delinquent." The statute does not, however, define the limits of restitution in a juvenile case. Thus, we look to the restitution statutes and case law employed in the adult criminal prosecution context for guidance in determining whether restitution should be awarded in this juvenile matter.

A.R.S. section 13-603(C) (Supp.1992) requires that restitution be paid "to the person who is the victim of the crime ... in the full amount of economic loss as determined by the court." "Economic loss" is defined in A.R.S. section 13-105(11) (Supp.1992) as:

[A]ny loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses which would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.

(Emphasis added.)

Whether a victim's damages are recoverable as economic losses depends on the existence of a causal connection between the criminal conduct and the claimed loss. In making this determination, "Arizona restitution statutes direct the trial court to utilize a 'but for' or a 'direct result' analysis...." State v. Blanton, 173 Ariz. 517, 520, 844 P.2d 1167, 1170 (App.1992). See also State v. Foy, 176 Ariz. 166, 170, 859 P.2d 789, 793 (App.1993). This court has also interpreted economic loss to mean losses that are directly attributable to the offense, that "flow" from it, and that are not considered consequential damages. State v. Reynolds, 171 Ariz. 678, 681, 832 P.2d 695, 698 (App.1992).

Nevertheless, we have refused to extend payment of restitution to those who, although they have suffered losses as a result of the defendant's conduct, are not victims of the charged crime. See State v. French, 166 Ariz. 247, 249, 801 P.2d 482, 484 (App.1990) (motel owner was not victim of crime of sexual assault and thus was not entitled to restitution for damages to motel room incurred during course of sexual assault); State v. Whitney, 151 Ariz. 113, 114, 726 P.2d 210, 211 (App.1985) (defendant who pled guilty to car theft not liable for restitution to third party who suffered damages in collision with stolen car). We have stated this principle as follows: "[A] defendant may be ordered to pay restitution only for an offense that he has admitted, upon which he has been found guilty, or upon which he has agreed to pay restitution." Id.

E.G. argues that French and Whitney stand for the proposition that he cannot be required to pay restitution for conduct that constitutes an "uncharged offense." We do not read these cases so broadly. Both cases dealt with this court's effort to determine whether the term "victim," as it is used in A.R.S. section 13-603(C), includes a third party who suffers a loss as a result of the defendant's criminal conduct. It was in that context that we held that a defendant may be liable for restitution to a third party, "only for an offense that he has admitted, upon which he has been found guilty, or upon which he has agreed to pay restitution." French, 166 Ariz. at 249, 801 P.2d at 484; Whitney, 151 Ariz. at 114, 726 P.2d at 211. Neither case examined the issue whether, under A.R.S. section 13-105(11), the victim's losses were "directly attributable" to the crime for which defendant was convicted. Likewise, neither case dealt with the question whether, assuming a direct relationship between the damage sustained by the victim of the crime and the offense for which defendant was convicted, restitution is unavailable because the loss is also the result of acts that might constitute an "uncharged crime."

Thus, we reject as too broad E.G.'s argument that he cannot be liable for restitution because the victim's losses were a result of "uncharged offenses." We agree with E.G. that the damage to the victim's car directly resulted from conduct that is normally punished by the offense of theft ² or the offense of criminal damage, ³ or both. And, the loss of the Walkman and cassette tapes flows from conduct that is usually punished by the offense of theft. Nevertheless, these circumstances do not preclude an award of restitution. If the state had produced sufficient evidence that the victim would not have sustained a loss but for the juvenile's conduct in committing the offense of criminal trespass, the fact that the loss was also the result of acts that might constitute an "uncharged crime" does not excuse the payment of restitution. See Faulkner v. Florida, 582 So.2d 783, 784 (Fla.Dist.Ct.App.1991); Washington v. Harrington, 56 Wash.App. 176, 782 P.2d 1101, 1103 (1989).

In Harrington, 782 P.2d at 1102, a juvenile adjudicated delinquent for possession of a stolen car was ordered by the trial court to pay restitution for damage to the car. ⁴ On appeal, the juvenile argued that the restitution order was invalid because he pled guilty to a possessory crime which punishes conduct that could not by itself be the cause of damage to the car. The juvenile contended that the damage to the car was the result of acts that constitute other uncharged crimes, such as malicious mischief. The Washington Court of Appeals rejected this argument, concluding "[t]he fact that the damage was the immediate result of specific acts which might constitute an 'uncharged crime' cannot be used to legally excuse" the payment of restitution. Id. at 1103. The court found sufficient evidence "that but for [the juvenile's] illegal act, the victim's property would not have been in a position to sustain the damages it did." Id. In affirming the trial court, the Harrington court concluded "[t]he trial court's finding that Harrington's possession of the stolen property was causally related to the victim's loss is a legally and factually sufficient basis for the restitution order." Id.

Here, however, the state conceded in its oral argument, and we agree, that the record contains no evidence that the victim's...