State v. Slover

• Decision Date: 09 February 2009
• Docket Number: No. 2 CA-CR 2007-0379.,2 CA-CR 2007-0379.
• Citation: 204 P.3d 1088
• Parties: The STATE of Arizona, Appellee, v. Robert Leeroy SLOVER, Appellant.
• Court: Arizona Court of Appeals

204 P.3d 1088

The STATE of Arizona, Appellee, v. Robert Leeroy SLOVER, Appellant.

No. 2 CA-CR 2007-0379.

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

February 9, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Jonathan Bass, Tucson, Attorneys for Appellee.

Emily Danies, Tucson, Attorney for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Appellant Robert Slover was convicted after a jury trial of negligent homicide, driving under the influence of an intoxicant (DUI), and driving with a blood alcohol concentration of .08 or more. The trial court sentenced him to a mitigated, two-year term of imprisonment for negligent homicide, and, for the other two offenses, suspended the imposition of sentence, placing him on concurrent terms of five years' probation. On appeal, Slover argues the trial court erred in ordering him to pay the victim's wife's attorney fees as restitution to the extent those fees compensated the attorney for assisting the state in his prosecution. Slover also contends the court erred in denying his request for a jury instruction on a superseding cause of death, refusing to admit habit evidence that Slover and the victim drove each other's vehicles, and denying his motion for mistrial based on a tainted jury pool. For the following reasons, we affirm Slover's convictions and sentences but vacate the portion of the restitution order awarding the victim's wife attorney fees incurred in assisting the state in its prosecution of Slover.

¶ 2 We view the facts in the light most favorable to sustaining the convictions, resolving conflicts in the evidence and the reasonable inferences arising from the evidence against the defendant. State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989). At trial, the evidence showed that Slover had been driving his pickup truck on a rural highway at night.¹ The truck left the roadway and rolled down an embankment, landing on its roof and hood over a shallow creek. Officers found the passenger of the truck dead, lying in the creek with his head submerged in the water. The victim's blood alcohol concentration was .231 at the time of his death. Within two hours of the accident, Slover's blood alcohol concentration was .165.

¶ 3 After being treated for his injuries, Slover was arrested and charged with manslaughter, DUI, and driving with a blood alcohol concentration of .08 or more. The jury found Slover guilty of negligent homicide and the two other charges. Slover filed a timely notice of appeal from the judgment and sentence.

RESTITUTION

¶ 4 Slover argues the trial court erred when it ordered him to pay the victim's wife's attorney fees, incurred in assisting the state in pursuing the case, as part of restitution.² We review a restitution order for an abuse of the trial court's discretion. State v. Reynolds, 171 Ariz. 678, 681, 832 P.2d 695, 698 (App.1992). A trial court abuses its discretion if it misapplies the law or exercises its discretion based on incorrect legal principles. See State v. Jackson, 208 Ariz. 56, ¶ 12, 90 P.3d 793, 796 (App.2004). Slover contends the fees were "unnecessary consequential damages" because the victim's wife did not need to hire an attorney to represent her in the criminal matter.

¶ 5 Under A.R.S. § 13-603(C), a person convicted of an offense must "make restitution to the ... immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court." Economic loss as the result of the commission of an offense "includes lost interest, lost earnings and other losses that would not have been incurred but for the offense" but do not include damages for pain and suffering, punitive damages, or consequential damages. A.R.S. § 13-105(16).³

Consequential damages are such as are not produced without the concurrence of some other event attributable to the same origin or cause; such damage, loss, or injury as does not flow directly and immediately from the action of the party, but only from the consequences or results of such act. The term may include damage which is so remote as not to be actionable.

State v. Morris, 173 Ariz. 14, 17, 839 P.2d 434, 437 (App.1992), quoting 25 C.J.S. Damages § 2, at 617. In sum, a court should order restitution for "damages that flow directly from the defendant's criminal conduct, without the intervention of additional causative factors." State v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133 (2002).

¶ 6 Slover emphasizes the victim's wife was not a party in the criminal case and had there been a violation of her rights in those proceedings, she "had full access to a crime victim advocate and the prosecuting attorney." Thus, he contends, the attorney fees she incurred to pursue the criminal charges against Slover did not result from Slover's criminal conduct but from the fact that the victim's wife unnecessarily hired an attorney to assist the prosecutor.

¶ 7 The record before us suggests Slover has correctly characterized the role played by the wife's counsel, Michael Harper, during the criminal proceedings. During the restitution hearing, Harper presented evidence of expenses he had incurred in connection with his representation of his client in the criminal proceedings against Slover. Specifically, he enumerated actions he had taken to have "th[e] case pursued by the County Attorney's Office." He also told the court he had been "quite vocal and quite active" in encouraging the state to file charges and was "active in trying to locate [Slover] out of state." He stated he had worked to assure that evidence was properly preserved. The court characterized Harper's actions during the criminal proceedings as "assisting the State, ... prodding the officers, and ... prodding the State as well," and ordered Slover to pay the victim's wife restitution for Harper's services in the amount of $5,028.⁴

¶ 8 In essence, Harper acted in the role of an adjunct prosecutor, "prodding" the state to pursue the case and apparently assisting it with the prosecution. To that extent, his fees did not flow directly from the defendant's criminal conduct but rather arose from either the state's inability to prosecute the case independently and competently or the wife's mistrust that it would do so. Those factors constituted an additional cause, independent of Slover's own criminal conduct, that resulted in the attorney fees at issue. See Wilkinson, 202 Ariz. 27, ¶ 10, 39 P.3d at 1133 (losses that "would not have occurred without the concurrence of a second causal event" were consequential damages); State v. Sexton, 176 Ariz. 171, 173, 859 P.2d 794, 796 (App.1993) (damages resulting from defendant's conduct and action or inaction of others too indirect to recover in restitution); State v. Pearce, 156 Ariz. 287, 289, 751 P.2d 603, 605 (App.1988) (lost profits consequential damages of theft not flowing from the acts to which defendant pled guilty). Those fees were therefore consequential rather than direct damages arising from Slover's crime and not recoverable as restitution under Arizona statute. See 1995 Ariz. Sess. Laws, ch. 199, § 1 (former version of § 13-105(16)).

¶ 9 We do not address whether such fees would be proper restitution items under other factual circumstances, such as when the victim hires an attorney to assert a concrete right under the Victims' Bill of Rights. See Ariz. Const. art. II, § 2.1; A.R.S. §§ 13-4403(A), 13-4437(A); see also State v. Guilliams, 208 Ariz. 48, ¶¶ 18-19, 23, 90 P.3d 785, 790-91, 792 (App.2004) (causation determination case-specific in restitution context). Here, however, where it is clear the attorney's representation of the victim in the criminal matter consisted of tasks that were actually the state's responsibility, those attorney fees were not incurred as a direct result of the offenses Slover had committed.

SUPERSEDING CAUSE INSTRUCTION

¶ 10 Slover argues the trial court erred when it denied his request for a jury instruction on superseding cause, asserting it was supported by reasonable evidence in the record. We review for an abuse of discretion a trial court's denial of a requested jury instruction. State v. Cox, 217 Ariz. 353, ¶ 15, 174 P.3d 265, 268 (2007). At trial, Slover requested a superseding cause instruction, arguing there was evidence that "the accident in this case didn't produce fatal injuries or injuries that by themselves would cause the death of [the victim]." Specifically, Slover contends there was no definitive evidence the crash rendered the victim unconscious, and therefore the victim could have crawled out of the truck and gotten in the water by himself and then been unable to remove himself due to his intoxication.

¶ 11 An intervening event must be unforeseeable and abnormal or extraordinary to qualify as a superseding cause that can excuse a defendant from liability for a criminal act. State v. Bass, 198 Ariz. 571, ¶¶ 12-13, 12 P.3d 796, 801 (2000) (recognizing criminal standard for superseding cause same as civil); see also Rossell v. Volkswagen of Am., 147 Ariz. 160, 168, 709 P.2d 517, 525 (1985) (defendant not liable only when intervening cause considered superseding cause). However, "[a]n intervening force is not a superseding cause if the original actor's negligence creates the very risk of harm that causes the injury." Young v. Envtl. Air Prods., Inc., 136 Ariz. 206, 212, 665 P.2d 88, 94 (App.1982), modified on other grounds and aff'd, 136 Ariz. 158, 665 P.2d 40 (1983). Nor can an intervening cause be considered a superseding cause when the defendant's conduct "increases the foreseeable risk of a particular harm occurring through ... a second actor." Ontiveros v. Borak, 136 Ariz. 500, 506, 667 P.2d 200, 206 (1983).

¶ 12 The trial court refused to give the instruction, finding "it's certainly foreseeable that you go down a relatively steep and long hill ... that there would be a canyon there, and ... that there would be water there." The court found it...