State v. Lewis

• Decision Date: 23 July 2009
• Docket Number: No. 2 CA-CR 2008-0156.,2 CA-CR 2008-0156.
• Citation: 222 Ariz. 321,214 P.3d 409
• Parties: The STATE of Arizona, Appellee, v. Caleb Quixote LEWIS, Appellant.
• Court: Arizona Court of Appeals

214 P.3d 409

222 Ariz. 321

The STATE of Arizona, Appellee, v. Caleb Quixote LEWIS, Appellant.

No. 2 CA-CR 2008-0156.

Court of Appeals of Arizona, Division 2, Department A.

July 23, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Kathryn A. Damstra, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Tucson, Attorneys for Appellant.

OPINION

PELANDER, Judge.

¶ 1 After a jury trial, appellant Caleb Lewis was convicted of drive-by shooting but acquitted of aggravated assault. He appeals from the trial court's restitution order against him, contending the court erred by ordering him to pay restitution to a victim after he had been acquitted of aggravated assault against her. He also maintains for the first time on appeal that, because evidence at trial suggested there were two shooters, either of whom could have caused the victim's injury, the facts underlying his drive-by shooting conviction do not support the restitution award. Because we find the award factually and legally supported, we affirm the restitution order.

Background

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the trial court's restitution order. See In re Andrew A., 203 Ariz. 585, ¶ 5, 58 P.3d 527, 528 (App.2002). After Lewis, his brother, and another man were asked to leave a house party, they got into a sport utility vehicle (SUV). As they started to drive away, someone at the party fired shots from the house toward the SUV. Lewis, who was driving, and possibly his brother, who was in the backseat, returned fire by shooting toward the house. The victim, A., was shot in the shoulder, and other bullets hit the front window of the house. A. suffered permanent loss of movement in her shoulder and incurred $12,448.94 in medical expenses.

¶ 3 Lewis was charged with aggravated assault with a deadly weapon, aggravated assault causing serious physical injury, and drive-by shooting. The jury found him guilty of drive-by shooting, acquitted him of aggravated assault resulting in serious physical injury, and failed to reach a verdict on the charge of aggravated assault with a deadly weapon. Lewis was sentenced to the presumptive term of 10.5 years' imprisonment.

¶ 4 At the restitution hearing, Lewis argued he should not have to pay restitution to A. because the jury had acquitted him of aggravated assault resulting in serious physical injury, he had merely "sho[t] a window at the house," and "the jury did not believe he did the shooting to cause the injury to [A.]." The court noted the "issue of restitution is complicated by the facts of trial and the jury verdict" but decided to follow "the authorities cited by the State." Apparently based on those authorities, the court rejected Lewis's argument and found him liable for restitution to A., simply noting she "was injured during the event [on] the night in question." The court ordered Lewis to pay $12,098.94 to A.'s health insurance company and $350 to A. for her medical expenses.¹ This delayed appeal from the restitution order followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033. See State v. Fancher, 169 Ariz. 266, 266 n. 1, 818 P.2d 251, 251 n. 1 (App.1991); see also Ariz. R.Crim. P. 31.3(b) and 32.1(f) (permitting trial court to grant delayed appeal).

Discussion

¶ 5 Lewis asks us to vacate the restitution order because he "was acquitted of the [aggravated assault] charge that involved the victim" and "his conviction for the drive-by shooting does not make him responsible for the victim's restitution claim under this case's facts." Generally, we review a restitution order for an abuse of discretion. State v. Slover, 220 Ariz. 239, ¶ 4, 204 P.3d 1088, 1091 (App.2009); State v. Reynolds, 171 Ariz. 678, 681, 832 P.2d 695, 698 (App.1992).² "A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles." State v. Jackson, 208 Ariz. 56, ¶ 12, 90 P.3d 793, 796 (App.2004).³ As noted above, we view the evidence bearing on a restitution claim in the light most favorable to sustaining the court's order. See Andrew A., 203 Ariz. 585, ¶ 5, 58 P.3d at 528; see also State v. Wilson, 185 Ariz. 254, 260, 914 P.2d 1346, 1352 (App.1995) (in reviewing restitution order, appellate court may not "substitute [its] own assessment of the evidence for that of the trial court").

¶ 6 "To preserve and protect victims' rights to justice and due process," Arizona's Constitution entitles crime victims "[t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury." Ariz. Const. art. II, § 2.1(A)(8). A defendant who has been convicted of a crime shall be ordered "to make restitution to the person who is the victim of the crime ... in the full amount of the economic loss as determined by the court." A.R.S. § 13-603(C); see also A.R.S. § 13-804(A); State v. Madrid, 207 Ariz. 296, ¶ 4, 85 P.3d 1054, 1056 (App.2004).⁴

¶ 7 A trial court, however, "may impose restitution only on charges for which a defendant has been found guilty, to which he has admitted, or for which he has agreed to pay." State v. Garcia, 176 Ariz. 231, 236, 860 P.2d 498, 503 (App.1993). "A loss is recoverable as restitution if it meets three requirements: (1) the loss must be economic, (2) the loss must be one that the victim would not have incurred but for the criminal conduct, and (3) the criminal conduct must directly cause the economic loss." Madrid, 207 Ariz. 296, ¶ 5, 85 P.3d at 1056; see also A.R.S. § 13-804(B) (requiring consideration of "all losses caused by the criminal offense or offenses for which the defendant has been convicted"). The state has the burden of proving a restitution claim by a preponderance of the evidence. In re Stephanie B., 204 Ariz. 466, ¶ 15, 65 P.3d 114, 118 (App. 2003).

¶ 8 Lewis does not dispute the victim's loss was economic. Citing Garcia, however, he maintains the trial court erred in ordering him to pay restitution when he was acquitted of the aggravated assault of A. He contends the only charge on which he was convicted, "drive-by shooting[,] does not require that a particular person, or any person, be a target." See A.R.S. § 13-1209(A) ("A person commits drive by shooting by intentionally discharging a weapon from a motor vehicle at a person, another occupied motor vehicle or an occupied structure."). And, Lewis argues, "[n]othing in the jur[ors]' verdict suggests that they believed [he] fired at a person rather than the house where the party was held."

¶ 9 As the state points out, however, even a "victimless" crime may support a restitution award when the criminal conduct directly caused the economic damage. See State v. Guilliams, 208 Ariz. 48, ¶ 14, 90 P.3d 785, 789 (App.2004). Rather than the elements of the crime, "the facts underlying the conviction determine whether there are victims of a specific crime." State v. Guadagni, 218 Ariz. 1, ¶ 15, 178 P.3d 473, 478 (App. 2008). Thus, although Lewis was acquitted of aggravated assault, he may still be liable for restitution as long as his criminal conduct—the drive-by shooting—directly caused A.'s injuries. See id. ¶ 18, 178 P.3d 473; see also State v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133 (2002); Madrid, 207 Ariz. 296, ¶ 5, 85 P.3d at 1056. In other words, Lewis's acquittal of aggravated assault against A. does not necessarily absolve him of liability for restitution to her.

¶ 10 In addition, as the state also notes, the jury might have acquitted Lewis of aggravated assault based on the mens rea required for that offense or as a compromise verdict. See A.R.S. §§ 13-1203(A), 13-1204(A)(1); see also State v. Zakhar, 105 Ariz. 31, 32-33, 459 P.2d 83, 84-85 (1969) (acquittal of assault charge may have been result of jury compromise). In Arizona, a jury is not required to render consistent verdicts. Id.; see also State v. Adams, 189 Ariz. 235, 238, 941 P.2d 908, 911 (App.1997). The jury was neither requested nor required to determine in connection with the drive-by shooting charge whether Lewis had shot merely at the house rather than at a person. See § 13-1209(A). But, it is undisputed that A. was injured as a direct result of the shooting from the SUV, regardless of whether Lewis fired the shot that hit her.⁵

¶ 11 Nonetheless, a defendant is only liable in restitution "for those damages that flow directly from the defendant's criminal conduct, without the intervention of additional causative factors." Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d at 1133. In Arizona, the standard for establishing causation on restitution claims is not a strict "but for" standard. See id. Rather, it is a "`modified but for standard,'" meaning the government must prove "`that a particular loss would not have occurred but for the conduct underlying the offense of conviction, [and] that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally).'" Guilliams, 208 Ariz. 48, ¶ 18, 90 P.3d at 790, quoting United States v. Vaknin, 112 F.3d 579, 589-90 (1st Cir.1997). Whether such a showing has been made is "`a fact-specific'" determination for the trial court. Id.

¶ 12 Citing and attempting to distinguish Guadagni, Lewis contends the underlying facts in this case "do not support [his] responsibility for the victim's injuries, and in fact, support a conclusion that an intervening event ([his brother's] firing of a weapon) caused [her] injuries." According to Lewis, "[t]he restitution issue boils down to one crucial fact that has not been disputed: there were two shooters involved in the alleged offenses." Therefore, Lewis argues, the state failed to "prove causation" because it "offered no evidence as to which shooter injured the victim." We find several flaws in this analysis and, therefore, reject Lewis's...