E.H. v. Slayton

• Docket Number: CR-24-0245-PR
• Decision Date: 30 April 2025
• Citation: E.H. v. Slayton, CR-24-0245-PR (Ariz. Apr 30, 2025)
• Parties: E.H., Petitioner, v. The Honorable Dan Slayton, Judge of the Superior Court of the State of Arizona, in and for the County of Coconino, Respondent Judge, Lillian Hester; Jason Conlee; Lenda Hester, Real Parties in Interest.
• Court: Arizona Supreme Court

1

E.H., Petitioner, v. The Honorable Dan Slayton, Judge of the Superior Court of the State of Arizona, in and for the County of Coconino, RespondentJudge, Lillian Hester; Jason Conlee; Lenda Hester, Real Parties in Interest.

No. CR-24-0245-PR

Supreme Court of Arizona

April 30, 2025

Petition for Special Action from the Superior Court in Coconino County The Honorable Dan Slayton, JudgeNos CR2016-00433, CR2016-00434, CR2016-00435

REVERSED AND REMANDED WITH INSTRUCTIONS

Memorandum Decision of the Court of Appeals, Division One 1 CA-SA 24-0034 Filed August8, 2024 VACATED

Colleen Clase(argued), Jessica Gattuso, Arizona Voice for Crime Victims, Phoenix, Attorneys for E.H.

Adam Zickerman, The Zickerman Law Office, Flagstaff, Attorneys for Jason Conlee

Gregory T. Parzych, Law Office of Gregory T. Parzych, Chandler, Attorney for Lillian Hester

Craig Williams(argued), Craig Williams Attorney at Law, P.L.L.C., Tucson, Attorney for Lenda Hester

Randall Udelman, Arizona Crime Victim Rights Law Group, Scottsdale, Attorneys for Amici CuriaeParents of Murdered Children and The Arizona Crime Victim Rights Law Group

David Euchner(argued), Pima County Public Defender's Office, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

CHIEF JUSTICE TIMMERauthored the Opinion of the Court, in which VICE CHIEF JUSTICE LOPEZ, JUSTICES BOLICK, BEENE, MONTGOMERYKING, and PELANDER (Retired)^[*] joined.

OPINION

TIMMER, CHIEF JUSTICE

¶1 In 2018, a jury convicted Lillian Hester of abusing and murdering Jack, her six-year-old nephew.^[1]Lenda Hester(Jack's grandmother) and Jason Conlee(Lillian's boyfriend) pleaded guilty, respectively, to charges of child abuse and endangerment.

¶2 Jack's surviving half-sister, Elise, seeks more than $3 million from defendants as restitution for Jack's future lost wages.The issue here is whether future lost wages of a murdered child are recoverable as restitution.We decide they are.The amount of this loss, however, must have a reasonable basis and cannot be the product of pure speculation or conjecture.

BACKGROUND

¶3 As Jack's half-sister, Elise is a victim of the defendants' crimes and is therefore entitled to seek restitution under the Victims' Bill of Rights ("VBR"), which is enshrined in the Arizona Constitution.SeeAriz. Const. art. 2, § 2.1(A)(8)(providing that a crime victim has the right "[t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury");A.R.S. § 13-4401(19)(expanding the definition of "victim" to include a murder victim's sibling);E.H. v. Slayton("E.H. I"), 245 Ariz. 331, 334 ¶ 10 (App. 2018)(recognizing Elise as a victim).Elise asked the superior court to order defendants to pay restitution for Jack's future lost wages in the amount of $3,322,880.20, "payable to [Jack's] estate."She asserted that as Jack's half-sister"and next closest relative who is not a criminal defendant in this case, [she] is the appropriate person to make this claim on behalf of [Jack's] estate."^[2] To support her request, Elise submitted an expert's report regarding Jack's projected future lost earnings.She also asked that her counsel be permitted to participate in any contested restitution hearing.

¶4The defendants each opposed Elise's claim on several grounds, including waiver, standing, and that future lost wages of a murdered child are not recoverable as restitution.Jason also argued that because he was convicted of endangerment, not murder, any future lost earnings did not result from his crime and therefore could not be recovered from him as restitution.Defendants submitted their own expert's report, estimating the present value of Jack's lost wages, minus consumption, as between $153,712 on the low end and $919,598 on the high end.Elise stated she would accept the defendants' high-end calculation.

¶5 After holding oral argument on Elise's request, the superior court agreed that Elise could assert victims' rights on Jack's behalf as well as her own.But it also found that a murdered child's future lost wages constitute consequential damages, which are not recoverable as restitution.SeeA.R.S. § 13-603(C)(requiring payment of restitution only for victims' "economic loss");A.R.S. § 13-105(16)(excluding consequential damages from the definition of "economic loss").It therefore denied Elise's request for restitution representing Jack's future lost wages.

¶6The court of appeals accepted jurisdiction of Elise's subsequently filed special action petition but denied relief.E.H. v. Slayton("E.H. III"), No. 1 CA-SA 24-0034, 2024 WL 3722835, at *3 ¶ 14 (Ariz. App. Aug. 8, 2024)(mem. decision).The court agreed that Jack's future lost wages are consequential damages and therefore not subject to recovery as restitution.Id.at *2-3 ¶¶ 10-12.It reasoned that "[t]he causal nexus between the defendants' criminal conduct and [Jack's] future lost wages is simply too attenuated, both factually and temporally" to be economic loss recoverable as restitution.Seeid. at *3¶ 12.

¶7We granted Elise's petition for review because whether a child murder victim's future lost wages are recoverable as restitution is an issue of statewide importance and capable of repetition.We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶8We review the superior court's denial of Elise's restitution claim for an abuse of discretion.SeeState v. Reed, 252 Ariz. 328, 331 ¶ 13 (2022).The court abused its discretion if it applied incorrect legal principles.Seeid.We review the court's interpretation of the constitution and applicable statutes de novo.Seeid.

A.A Court May Award Restitution For A Victim's Reasonably Anticipated Future Economic Losses Caused By Criminal Conduct.

¶9 The VBR guarantees crime victims several rights designed" [t]o preserve and protect victims' rights to justice and due process."Ariz. Const. art. 2, § 2.1(A).If the person against whom the crime was committed was killed or incapacitated, the Constitution defines "victim" as "the person's spouse, parent, child or other lawful representative," unless that individual is incarcerated or is the accused.Id.art. 2, § 2.1(C).The Victims' Rights Implementation Act ("VRIA"), A.R.S. § 13-4401 through § 13-4443, expanded this list to include a sibling, like Elise.See§ 13-4401(19).

¶10We are concerned here with a victim's right to receive full restitution from persons "convicted of the criminal conduct that caused the victim's loss or injury."SeeAriz. Const. art. 2, § 2.1(A)(8);see alsoReed, 252 Ariz. at 330 ¶ 7(stating that the right to prompt restitution includes the right to full restitution).Restitution reimburses the "economic loss" suffered by the victim.See§ 13-603(C);see alsoA.R.S. § 13-804(B)(instructing the court to consider "all losses caused by the criminal offense" when ordering restitution for economic loss);State v. Patel, 251 Ariz. 131, 135 ¶ 14 (2021)(recognizing that restitution "restore[s] victims to the position they were in before the loss or injury caused by the criminal conduct")."Economic loss" means "losses that would not have been incurred but for the offense," including "lost earnings" but excepting "damages for pain and suffering, punitive damages [and] consequential damages."§ 13-105(16).Because restitution is not a penalty, it must be limited to the victim's actual loss.SeeTown of Gilbert Prosecutor's Off. v. Downie ex rel. Cnty. of Maricopa, 218 Ariz. 466, 469 ¶ 13 (2008).If the victim has died, restitution is paid to the victim's immediate family.^[3]See§ 13-603(C).Importantly, the victim may bring a civil lawsuit to recover other damages, including claims for pain and suffering, consequential damages, and punitive damages.SeeDownie, 218 Ariz. at 469 ¶ 14;A.R.S. § 13-807.

¶11 The above-cited statutes collectively define the losses for which restitution can be ordered.SeeState v. Wilkinson, 202 Ariz. 27, 29 ¶ 7 (2002).Applying them, we have held that "restitution should be ordered for losses that (1) are economic; (2) would not have been incurred by the victim but for the criminal offense; and (3) were directly caused by the criminal conduct."Reed, 252 Ariz. at 330 ¶ 9(citingWilkinson, 202 Ariz. at 29 ¶ 7).For ease of reference, we refer to these requirements as the" Wilkinson test."

¶12This Court has not previously addressed whether yet-to-be-incurred losses, like future lost wages, qualify as "economic loss" under § 13-603(C), making them recoverable as restitution.But the court of appeals addressed the issue in State v. Howard, 168 Ariz 458, 459-60(App.1991).The defendant there was convicted of aggravated assault based on his involvement with a traffic accident that severely injured the victim.Id. at 459.The defendant objected to paying restitution for the victim's future medical care and future lost wages.Seeid.The court of appeals rejected the defendant's argument, reasoning that compensating a victim for reasonably anticipated future losses caused by the criminal conduct is statutorily required to make the victim whole.Seeid. at 459-60.If such losses were not permitted, the court noted, "the amount of restitution owed to the victim could be dictated by the timing of the disposition of the charges against the defendant and of the victim's recovery" rather than the victim's actual losses.Id. at 460.The court cautioned, however, that the restitution award "must bear a reasonable relationship to the victim's loss," even if the damages are not "easily measurable."Id.(cleaned up)(first quoting State v. Scroggins, 168 Ariz. 8, 9(App.1991); and then quoting In re Maricopa Cnty. Juv. Action...