                 IN THE SUPREME COURT OF IOWA
                              No. 18–1763

                           Filed May 22, 2020


STATE OF IOWA,

      Appellee,

vs.

EDDIE DONOVAN DeLONG,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Cherokee County, David A.

Lester, Judge.



      Defendant appeals his restitution order. DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT ORDER VACATED AND

REMANDED.


      Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, and Ryan R. Kolpin, County Attorney, for appellee.
                                     2

APPEL, Justice.

      In this case, we consider whether a district court’s restitution order

based upon testimony and exhibits submitted by the Crime Victim

Compensation Program (CVCP) was supported by substantial evidence.

The district court granted the State’s motion for restitution in the amount

of $2740.95. The defendant appealed. For the reasons expressed below,

we vacate and remand the matter to the district court.

      I. Factual and Procedural Background.

      Eddie DeLong was convicted of sexual abuse in the third degree, a

class “C” felony, while being a habitual offender, and supplying alcohol to

a minor, an aggravated misdemeanor. Evidence offered at trial showed

that DeLong provided alcohol to M.G., a minor. After M.G. consumed the

alcohol and was lying on a couch, DeLong squeezed her breasts, rubbed

her vagina, and pulled down her pants. M.G. at one point opened her eyes

and looked at DeLong, who appeared surprised.

      M.G. awoke around noon the next day, feeling sick. There was vomit

on her left shoulder. Her vagina was sore, her underwear had blood on

them, and her pants were on backward.          M.G. did not immediately

remember what had occurred, but later remembered the incident, told her

mother about it, and DeLong was arrested. DeLong was convicted of both

crimes after a jury trial and was sentenced by the court.

      The district court set a restitution hearing.      At the hearing on

restitution, the State called Ruth Walker, the restitution subrogation

coordinator with the Crime Victim Assistance Division in the State of Iowa

Attorney General’s Office, to testify.      The State, through Walker,

introduced two exhibits.     Exhibit 15 was entitled “Claim Payment

Summary” and provided an itemized statement of expenses, organized by

category and date, paid by the CVCP. Exhibit 16 was a compendium of
                                      3

what was labeled as “Medical & Mental Health Expense Verification

Documents” to support the claim payment summary provided in exhibit

15. The total amount of restitution sought by the State was $2740.95.

      Walker testified at the hearing about the process used by CVCP to

determine whether to pay expenses. She testified that when CVCP receives

an application, it requests billings and medical records from providers.

According to Walker, when the information is received, a compensation

specialist reviews the information and determines whether the CVCP

should pay for the expenses. She told the court that if it is determined

that the expense is crime related and CVCP can pay for it, then a payment

is requested.     Walker stated that the file then goes to another

compensation specialist, who reviews it for quality control. If approved,

Walker stated that the payment is then sent to the provider.       Walker

testified that this process was applied to all of the restitution sought by

the State in its application in this case.

      Aside from her general process testimony, Walker further testified

that itemizations on the first two substantive pages of exhibit 15 showed

that “[the CVCP] paid counseling and some medical expenses, which

totaled $1,428.95.” Walker further testified based on the itemizations on

the third substantive page of exhibit 15 that “[the CVCP] also paid for the

sexual assault exam that the victim had at Mercy Hospital in Sioux City,

and that was $1,312.”

      Walker did not provide medical records to support the itemizations

in exhibit 15. Walker explained that under Iowa Code section 22.7, she

was required to keep such records confidential. But Walker explained that

staff reviewed the medical records before including charges in exhibit 15.

      Walker did not clearly explain the relationship between exhibits 15

and 16. She stated that in exhibit 16 she tried to put the documents in
                                       4

order of service.    Walker testified that the bills in exhibit 16 should

theoretically add up to the payments in exhibit 15.

        Exhibit 16 contains a mix of documents, including five documents

entitled    “Crime   Victim   Compensation     Program     Medical   Expense

Verification Form.” The verification form asks the provider whether the

services rendered were a direct result of crime. The provider is then asked

to itemize the charges, including specifically any amounts paid by the

patient. The verification form is then signed by a representative of the

provider, who certifies that the information “in this treatment plan is true

and accurate” and that the signatory is “currently licensed and in good

standing in the State in which [he or she] practice[s].”

        The first verification form in exhibit 16 relates to services provided

by Cherokee Regional Medical Center on July 17, 2016, and is dated

February 22, 2017. The verification form indicates the amount paid by

the patient was $30. The question on the verification form which asked

whether the services rendered were a direct result of crime was left

unanswered by the medical provider. A handwritten notation adjacent to

the question said “Per Ruth, CVC should pay.” The verification form was

signed by an authorized signatory of the provider. A statement for M.G.

from the provider follows the verification form indicating a patient payment

of $30.

        A second verification form in exhibit 16 was submitted by Floyd

Valley Hospital Family Medicine Clinic for services rendered on August 16,

2016.      The question on the verification form that asked whether the

services were directly related to the crime was answered in the affirmative.

The verification form states that the amount paid by the claimant was $30.

It is signed by a representative of the provider. The next page following
                                     5

the verification form provides account information stating that the patient

paid $30 for services on August 17, 2016.

      A third verification form in exhibit 16 was submitted by Orange City

Health System for services rendered September 12, 2016, and is dated

April 24, 2017. The question on the verification form that asked whether

services were directly related to the crime had N/A marked next to it. The

amount paid by the client as indicated on the verification form is $80, with

an unpaid balance of $70. It is not clear who owes the unpaid balance.

The two pages following the verification form present billing detail for

services on September 12 and indicate that the patient paid $80.

      A fourth verification form in exhibit 16 was submitted by Family

Solutions Services, Inc. dated May 5, 2017. The form was slightly different

than other forms as it carried the title “Mental Health Expense

Verification.” This fourth verification form also does not state the services

that were rendered, the date of the services, or whether the services were

directly related to a crime. It indicates that the claimant paid $60 and that

the provider is also “owed $92.”

      The next document following the May 5, 2017 verification form in

exhibit 16 is entitled “Crime Victim Compensation Program Mental Health

Treatment Plan” and is dated August 8, 2017. This document indicates

that the presenting complaint was “symptoms of PTSD” and the diagnosis

of record and brief description were “PTSD—symptoms related to sexual

assault.” A box is checked stating that the treatment was “a direct result

of the crime on 5/30/2016.” The date of the crime, however, was June 30,

2016. The document does not state who the patient is and is not signed

by anyone.    The next page in exhibit 16, however, is a September 15

account statement from Family Solutions indicating services on August 8,
                                      6

August 15, and September 25 for M.G., with a “projected patient balance”

of $120.

      The fifth verification form was submitted by Floyd Valley Hospital

Family Medicine Clinic signed December 19, 2017. The document does

not list a date for services rendered. The unspecified services are said to

be a direct result of crime.   The document is signed by an authorized

signatory.   The next two pages in exhibit 16 are from an account

information report of the provider that indicates that the claimant paid

$60 out of pocket for the services.

      In addition to the above documents, exhibit 16 contains a number

of orphan documents that are not tethered to any verification form. There

is a billing statement from Floyd Valley Healthcare dated August 9, 2016,

for services rendered on August 5; another billing statement from Floyd

Valley Healthcare dated September 19, 2016, for services provided on

September 15 along with an adding machine tape with various notations;

a third billing statement from Floyd Valley Healthcare dated January 5,

2017, for services rendered on January 1, 2017, and an accompanying

adding machine tape; an itemized invoice from Remsen Ambulance dated

January 12, 2017, for services rendered on January 1, 2017. None of

these documents provide any statement that the charges were related to

the crime. Some, like the Remsen Ambulance invoice, do not indicate what

portions were the responsibility of M.G.

      On this record, the district court entered an order approving of the

restitution claim in its entirety in the amount of $2740.95. The district

court relied largely on the testimony of Walker regarding how the CVCP

processes requests for payment of medical services. The district court

noted that medical records are not subject to release under Iowa Code

section 22.7, as incorporated into crime victim restitution through Iowa
                                     7

Code section 915.90. In light of the confidentiality provisions, the district

court determined that the general process testimony offered by Walker,

supplemented in a few places by her more specific testimony about a

particular expense, was sufficient to support the restitution.

      DeLong appealed. We transferred the case to the court of appeals.

The court of appeals affirmed, noting that treatment provider verification

forms indicated a direct causal connection, CVCP’s review determined

causal connection, and Walker testified the treatments were causally

connected to the sexual assault.

      We granted further review. For the reasons expressed below, we

vacate and remand the matter to the district court.

      II. Standard of Review.

      Restitution is a creature of statute and, as a result, restitution

orders are reviewed for errors at law. State v. Jenkins, 788 N.W.2d 640,

642 (Iowa 2010).    “When reviewing a restitution order, ‘we determine

whether the court’s findings lack substantial evidentiary support, or

whether the court has not properly applied the law.’ ” Id. (quoting State v.

Klawonn, 688 N.W.2d 271, 274 (Iowa 2004)).

      III. Discussion.

      A. Introduction. Since the 1980s, nearly all states have enacted

statutes providing for pecuniary restitution to victims.      Jenkins, 788

N.W.2d at 643. The Iowa framework for criminal restitution is established

in Iowa Code chapters 910 and 915.

      Under Iowa Code section 910.1(4) (2017), restitution is defined as

“payment of pecuniary damages to a victim in an amount and in the

manner provided by the offender’s plan of restitution.” “Restitution” also

means    “the   payment     of   crime   victim   compensation      program

reimbursements” and other governmental expenses. Id.
                                    8

      Iowa Code section 910.3 requires the county attorney to “prepare a

statement of pecuniary damages to victims of the defendant and, if

applicable, any award by the [CVCP].” The statement is then provided as

part of the presentence investigation or submitted to the court. Id. The

court is then directed to enter an order setting out “the amount of

restitution.” Id. See generally Jenkins, 788 N.W.2d at 643–44.

      Iowa Code chapter 915 provides the framework for the CVCP. Under

chapter 915, the CVCP is authorized to award compensation for “economic

losses incurred as a direct result of an injury to or death of the victim.”

Iowa Code § 915.86.

      B. Overview of Iowa Restitution Caselaw.            In Jenkins, we

generally reviewed the history of criminal restitution and the Iowa

statutory framework related to it. 788 N.W.2d at 642–44. There, we noted

that restitution under the Iowa statute was not discretionary and that the

state, upon a proper showing, was entitled to restitution. Id. at 644.

      While the award of restitution is not discretionary, we held in

Jenkins that the state must show a causal connection between the

underlying crime and the amount claimed. Id. at 645. We declined to give

preclusive effect to a determination made by the CVCP, noting that to do

so would implicate the defendant’s right to due process and give rise to a

substantial issue regarding improper delegation of authority. Id. at 646.

      In State v. Shears, 920 N.W.2d 527 (Iowa 2018), we reviewed our

statutory restitution cases dealing with the causation requirement. We

noted that the burden remained with the party claiming restitution to

prove that the evidence supported the restitution claim. Id. at 536 (citing

State v. Holmberg, 449 N.W.2d 376, 377–78 (Iowa 1989)). We canvassed a

number of our cases that require that the party claiming restitution show

“a direct causal relationship” between the crime and the economic loss.
                                     9

Id. (quoting State v. Hagen, 840 N.W.2d 140, 148 (Iowa 2013)); see also

State v. Stessman, 460 N.W.2d 461, 464 (Iowa 1990); State v. Knudsen,

746 N.W.2d 608, 610 (Iowa Ct. App. 2008).

      A third recent case exploring the contours of restitution is State v.

Edouard, 854 N.W.2d 421 (Iowa 2014), overruled on other grounds by

Alcala v. Marriott International, Inc., 880 N.W.2d 699, 708 & n.3 (Iowa

2016). In this sexual abuse case, restitution was sought for $12,956.74

in economic harm, including the cost of counseling. Edouard, 854 N.W.2d

at 450. As in this case, the restitution subrogation coordinator testified in

support of the restitution claim of $12,956.74. Id. The coordinator, as in

this case, outlined the process in which the CVCP approves amounts for

restitution. But, in addition

      the providers in question had attested in writing that all of the
      treatments were related to the crime. Each exhibit contained
      a form signed by the treatment provider that verified the
      treatments in question were “provided as a direct result of the
      crime.”

Id. (emphasis added).

      The statements from the providers offered at the restitution hearing

were hearsay, of course, but the Edouard court emphasized that a hearing
for restitution was not strictly subject to the rules of evidence. Id. Based

on the record established at the restitution hearing, the Edouard court

concluded that substantial evidence was presented in support of the

restitution claim. Id. at 451.

      C. Positions of the Parties. DeLong recognizes that restitution is

mandatory in all criminal cases where there is a verdict of guilty. See Iowa

Code § 910.2. He contends, however, that under Jenkins, the State must

present sufficient evidence to show causation of the amount claimed.

DeLong notes that Walker did not provide any details regarding how the
                                          10

expenses were related to the crime, some of which were incurred more

than six months afterwards. He notes that the victim testified at trial

regarding her injuries and that, in light of that testimony, there is nothing

in the record to support multiple emergency room visits, CT scans,

radiology services, and lab tests that the State claimed were subject to

restitution. 1

       The State responds that Walker testified at the hearing about the

process utilized by the CVCP to determine whether amounts were subject

to payment by the CVCP and that the payments adjudged for restitution

in this case followed that procedure. The State recognizes, to some extent,

the limitations of the verification forms, but suggests that the record, when

considered as a whole, is sufficient to infer causal connection of the

expenses.        For example, the State notes that one of the documents

indicated that M.G. had “PTSD—symptoms related to sexual assault.”

This notion, according to the State, shows a need for services on an

ongoing basis and explains why services continued well after June 30,

2016, the date of the crime.

       The State asserts that the case is controlled by Eduourd. The State

claims that the evidence is nearly identical to that submitted in the case.

According to the State, Edouard involved the need for mental health

services that victims had sought as a result of Edouard’s predatory sexual

abuse.




       1DeLong’s   appeal focuses on whether there was substantial evidence of causation
sufficient to support restitution under the record developed at trial. He does not
specifically raise a due process challenge to the constitutionality of Iowa Code section
915.90, either as applied or on its face. He argues instead that conclusory evidence of
causation without medical detail is not substantial evidence under Jenkins. In addition,
DeLong did not seek access to M.G.’s confidential records in the district court. As a
result, we do not consider here any due process challenge to Iowa Code section 915.90.
                                      11

      D. Application of Principles of Statutory Restitution in this

Case. We now turn to examining the claim for restitution in this case. At

the outset, we observe that a mere statement by the CVCP coordinator that

an expense is directly related to the crime is not substantial evidence but

simply represents a conclusion that does not amount to substantial

evidence in support of the restitution claim. Such a position would be

inconsistent with the spirit, if not the letter, of Jenkins, which rejected the

notion that whatever amount the State submitted for restitution must be

approved.

      On the other hand, in Edouard we emphasized that the rules of

evidence do not strictly apply and that hearsay evidence from a medical

provider to the effect that expenses were incurred as a direct result of the

crime could, in fact, amount to substantial evidence when combined with

testimony from the CVCP about the process in which the evidence was

assembled.

      Indeed, the CVCP has developed a “Crime Victim Compensation

Program Medical Expense Verification Form” that appears to be designed

for the very purpose of providing sufficient evidence of causation to

support restitution in cases involving the provision of medical care. The

verification form calls upon the medical provider to certify that the services

rendered were “a direct result of crime.” Further, the medical provider

supplies the amount paid by the claimant, a necessary piece of information

for restitution. The medical provider then certifies that the information

provided is true and accurate. As seen in this case, an invoice is often

attached to the verification form to provide documentation.

      Ordinarily, when the record contains an expense verification form

from a medical provider that reasonably identifies the service provided,

identifies the cost borne by the victim, and verifies that the costs were
                                         12

incurred as a direct result of crime, we think the claim is supported by

substantial evidence.      Such a three-pronged expense verification by a

medical provider permits the State to make a showing of causation without

violating the confidentiality provisions of Iowa Code section 915.90. 2 We

see that as the essential teaching of Edouard, which noted that verification

forms had been submitted for all expenses. 854 N.W.2d at 450–51.

      Here, however, the amount supported by verification forms, properly

filled out by the medical provider, is quite small. As noted above, some of

the forms were not fully completed. For the vast majority of services that

the CVCP claims were incurred as a direct result of the crime, the CVCP

presented no verification forms to the district court.               The amount of

restitution supported by properly completed provider verification forms

amounts to $242. If mileage claims for travel for these services is added

to the total, the amount is $285.50.

      So, the key question here is whether testimony about the general

process conducted by the CVCP in evaluating potential restitution is

sufficient. The district court found this general evidence to be substantial

evidence on the causation issue. We think more is required. If the mere

hearsay recitation by the State that its processes were followed were




             2A  person in possession or control of investigative or other
      information pertaining to an alleged crime or a victim filing for
      compensation shall allow the inspection and reproduction of the
      information by the department upon the request of the department, to be
      used only in the administration and enforcement of the crime victim
      compensation program. Information and records which are confidential
      under section 22.7 and information or records received from the
      confidential information or records remain confidential under this section.

             A person does not incur legal liability by reason of releasing
      information to the department as required under this section.

Iowa Code § 915.90.
                                    13

sufficient, a defendant would have no practical way to contest restitution.

And, therefore the holding in Jenkins would be dramatically eroded.

      We do not suggest, of course, that the use of a verification form is

the only method of showing causation sufficient to support restitution.

There are no doubt other means to provide evidence of causation beyond

a particular form, including but not limited to direct testimony of a family

member or a medical provider, other forms of documentation, or a

combination of both.

      But on the record here, we conclude that the CVCP fell short of

establishing restitution in the amount of $2740.95. It is not enough for

the CVCP to assemble a package of miscellaneous, incomplete documents,

file them with the district court as a hodgepodge exhibit, and rely on a

summary schedule of claimed expenses prepared by CVCP that lack

specific support in the record.

      When a restitution order is not supported by substantial evidence,

we may determine the amount that is supported by substantial evidence.

See Holmberg, 449 N.W.2d at 378; State v. Starkey, 437 N.W.2d 573, 575

(Iowa 1989).   Based on our review of the record, we find the record

supports only $285.50 in restitution. We remand the case to the district

court to enter a restitution order in that amount.

      IV. Conclusion.

      For the above reasons, the restitution order in this case is reversed

and the case remanded for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

ORDER VACATED AND REMANDED.
