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15-P-734                                             Appeals Court

           COMMONWEALTH    vs.   THOMAS E. BUCKLEY, THIRD.


                             No. 15-P-734.

        Berkshire.        June 1, 2016. - September 8, 2016.

             Present:     Katzmann, Meade, & Agnes, JJ.

Restitution. Practice, Criminal, Restitution, Findings by
     judge. Larceny. Motor Vehicle, Theft. Negligence,
     Economic loss, Causation, Proximate cause, Intentional
     conduct. Proximate Cause. Intentional Conduct.



     Complaint received and sworn to in the Pittsfield Division
of the District Court Department on July 15, 2014.

     A proceeding to determine restitution was had before
William A. Rota, J.


     Matthew J. Koes for the defendant.
     Megan L. Rose, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.   Victims of crime have the right to request that

the sentence in a criminal case include an order that the

defendant pay restitution to make up for the economic loss they
                                                                   2


suffered as a result of the defendant's criminal conduct.1

"[T]he scope of restitution is limited to 'loss or damage [that]

is causally connected to the offense and bears a significant

relationship to the offense.'"2   Commonwealth v. McIntyre, 436



     1
       "[T]he purpose of restitution . . . is not only to
compensate the victim for his or her economic loss tied to the
defendant's conduct, but also to make the defendant pay for the
damage [which] he or she caused as a punitive and rehabilitative
sanction." Commonwealth v. Williams, 57 Mass. App. Ct. 917, 918
(2003). In Commonwealth v. Denehy, 466 Mass. 723, 737 (2014)
(quotations omitted), the Supreme Judicial Court explained that
a judge's power to order restitution is "unquestionable" and not
limited by statute, and that judges have "significant latitude"
in imposing restitution. In some cases, including cases such as
this involving the offense of larceny of a motor vehicle, the
Legislature has required that courts conduct a restitution
hearing and, if appropriate, order restitution. See G. L.
c. 266, § 29; G. L. c. 276, § 92A.
     2
       A victim's economic loss may include items such as
"medical expenses, court-related travel expenses, property loss
and damage, lost pay, or even lost paid vacation days required
to be used to attend court proceedings." Commonwealth v.
Rotonda, 434 Mass. 211, 221 (2001). See Commonwealth v.
Hastings, 53 Mass. App. Ct. 41, 43 (2001) (equating "economic
loss" with financial loss that includes lost earnings, out-of-
pocket expenses, and replacement costs, but not pain and
suffering). Likewise, under Federal law, the losses that are
included in the scope of restitution include the following:
certain medical services, physical and occupational therapy,
transportation, temporary housing, child care, lost income,
attorney's fees and costs, and a final catchall category for
"any other losses suffered by the victim as a proximate result
of the offense." 18 U.S.C. § 2259(b)(3)(A)-(F) (2012). See
Paroline v. United States, 134 S. Ct. 1710 (2014).
     "[A] judge has the authority to conduct restitution
hearings and, in so doing, make factual determinations relevant
to the restitution award[; however,] . . .the proper procedural
mechanisms [must be] employed." Commonwealth v. Denehy, 466
Mass. 723, 738 (2014). See Commonwealth v. Casanova, 65 Mass.
App. Ct. 750, 755-756 (2006) ("We discern no requirement that
                                                                     3


Mass. 829, 835 (2002), quoting from Glaubius v. State, 688

So. 2d 913, 915 (Fla. 1997).

    In the present case, the defendant, Thomas E. Buckley, III,

pleaded guilty to one count of larceny of a motor vehicle in

violation of G. L. c. 266, § 28(a).     After a hearing, the judge

ordered the defendant to pay restitution in the amount of $3,000

for the loss of the victim's vehicle.     On appeal, the defendant

raises two issues relating to the restitution order:     (1)

whether intervening acts of negligence by third parties

following the commission of the crime broke the causal chain and

should relieve the defendant of the obligation to pay

restitution; and (2) whether an agreement between the parties as

to the approximate amount of economic loss is a sufficient basis

upon which the judge may make an order of restitution.     We

answer the first question "no," and the second question "yes."

Accordingly, we affirm.



strict evidentiary rules apply at restitution hearings. A
restitution hearing is not part of a criminal prosecution to
which the full panoply of constitutional protections applicable
at a criminal trial need be provided, but principles of due
process govern"). See also Mass. G. Evid. § 1114(b) (2016)
(describing procedural requirements). The Commonwealth has the
burden of proving the victim's economic losses by a
preponderance of the evidence. Commonwealth v. Nawn, 394 Mass.
1, 7-8 (1985). Crime victims are entitled to assistance from
the prosecutor in obtaining documentation of their losses.
G. L. c. 258B. § 3(o). "A restitution order must be based on
evidence presented to the court unless the parties enter into a
stipulation." Mass. G. Evid., supra.
                                                                    4


     Background.   The essential facts are not in dispute.     On

July 14, 2014, the defendant was in the parking lot of a grocery

store when he took possession of the victim's vehicle.    The

defendant claimed that someone had paid him to move a vehicle to

an automobile wrecker, and he had mistakenly taken the

defendant's vehicle.   The defendant drove the vehicle first to

an automobile wrecker and then to a liquor store parking lot,

where it was eventually recovered.    After he was seen on a

surveillance video, the defendant was arrested.    He immediately

told the police where to find the vehicle.

     Although the vehicle was located within one or two days of

its theft, due to some misinformation or a misunderstanding

regarding the victim's contact information, the victim was not

immediately notified that his vehicle had been recovered.3

Because of the miscommunication, it was several months later,

when the victim appeared for trial, that he discovered that the

police had recovered his vehicle.    In the interim, the victim

had purchased a replacement vehicle.



     3
       When the police attempted to contact the victim to inform
him of the vehicle's recovery, they reached a person thought to
be the victim's son, and that person allegedly informed them
that his vehicle was not missing. The victim told the court
that the person contacted by the police may not, in fact, have
been his son, because his son had not been so notified. In any
event, the parties agree that the victim himself was not aware
that his vehicle had been located until the day of trial.
                                                                    5


     During the several months prior to trial, the victim's

vehicle had been stored at an auto-body shop and had accumulated

roughly $3,036 in storage, mileage, and towing fees.   Because

the victim was unable to pay the fees, he ultimately transferred

ownership of the vehicle to the shop.

     After the defendant pleaded guilty, he was sentenced to six

months' probation and was ordered to pay various fines and

restitution.   At the restitution hearing, the judge inquired as

to the "book value" of the stolen vehicle, a 1993 Honda Accord.

The Commonwealth responded, "Your Honor, I believe we made an

approximation last time that it was . . . a little under . . .

what the storage fees were, but we don't have a full book

value."4   Defense counsel stated, "there's no dispute as to that"

and the issue was simply a "question of what [the defendant]

would be capable of paying."   The Commonwealth requested $3,036

in restitution, the amount of the fees incurred.

     The defendant argued principally that the Commonwealth had

not met its burden to prove that the defendant's conduct was

causally related to the victim's economic loss.    In particular,

he argued that the intervening negligence on the part of the


     4
       The Commonwealth and the victim referred to the "last
time" the matter was in court. Defense counsel also reported,
"essentially we presented all of this to [a different judge]."
However, no transcript of any prior proceeding was provided to
this court. See note 10, infra.
                                                                      6


police department, not the defendant's crime, was the proximate

cause of the victim's loss because the defendant immediately

disclosed the vehicle's location to the police and the

intervening negligence was not foreseeable.

     The judge ordered the defendant to pay $3,000 in

restitution.   In a written memorandum, the judge noted that "the

authorities could have done a better job in reuniting the victim

with his car in a timely fashion," but ultimately concluded that

"BUT FOR the defendant's criminal action, the victim would not

have incurred any loss."    He emphasized that the victim was not

culpable in any way for the loss.     The judge noted that "the

parties agreed that the 'book value' of the vehicle was

approximately $3,000," and he used that amount to set the

restitution order.

     Discussion.     We review orders of restitution for abuse of

discretion or error of law.     Commonwealth v. McIntyre, 436 Mass.

at 836.5




     5
       In McIntyre, the court reasoned that even though the
defendant was convicted of assault and battery by means of a
dangerous weapon, not a crime based on property damage, the
victim was entitled to restitution for the damage to his
automobile because "[t]here [was] no question that the damage to
the victim's car occurred during the course of an ongoing
assault." Commonwealth v. McIntyre, supra at 835-836 (noting
that when the victim fled to his car to escape an ongoing
assault, the defendant kicked the car's door and fender).
                                                                     7


     1.     The Commonwealth met its burden to prove that the

defendant caused the victim's economic loss.     In McIntyre, the

Supreme Judicial Court adopted the test for causation in

restitution cases enunciated by the Florida Supreme Court in

Glaubius:    "the scope of restitution is limited to 'loss or

damage [that] is causally connected to the offense and bears a

significant relationship to the offense.'"6    Commonwealth v.

McIntyre, supra at 835, quoting from Glaubius v. State, 688 So.

2d at 915.     Although our appellate courts have not had occasion

to explain this standard since the decision in McIntyre, the

Florida Supreme Court did revisit the issue in Schuette v.

State, 822 So. 2d 1275 (Fla. 2002).     In Schuette, supra at 1283,

the court held that the criminal offense of driving with a

suspended license was not, by itself, the cause in fact of the

damage that resulted when the defendant's vehicle collided with

the victim's vehicle, and thus an order of restitution against

the defendant could not be entered because there was no evidence

connecting his criminal conduct to the victim's economic loss.

The court explained that the requirement of a "significant

relationship" between the defendant's criminal conduct and the


     6
       In McIntyre, the court added that "we look to the
underlying facts of the charged offense, not the name of the
crime [of which the defendant was convicted, or] to which the
defendant entered a plea." Commonwealth v. McIntyre, supra at
835 (quotation omitted).
                                                                    8


victim's economic loss is another way of describing the

traditional requirement of proximate cause.    Id. at 1282.   See

Paroline v. United States, 134 S. Ct. 1710, 1719 (2014) ("[T]o

say that one event was a proximate cause of another means that

it was not just any cause, but one with a sufficient connection

to the result").    With the benefit of this additional guidance,

we regard the test for causation in restitution cases formulated

in McIntyre to require that the Commonwealth establish by a

preponderance of the evidence that the defendant's criminal

conduct was the cause in fact of the economic injury suffered by

the victim, and that the victim's losses were a reasonably

foreseeable consequence of the defendant's conduct.

     Here, the judge found on the uncontroverted facts that the

defendant stole the victim's vehicle and that the defendant's

conduct was therefore the factual cause of the economic loss

suffered by the victim, in the sense that the defendant set in

motion a chain of events that resulted in the loss of the

victim's vehicle.    The same finding also satisfies the

requirement of reasonable foreseeability, because when the

property of another is stolen, it is certainly foreseeable that

the victim may not recover it.7


     7
       A requirement that the defendant's criminal conduct be the
cause in fact of the victim's economic harm and that such harm
was a reasonably foreseeable consequence of the defendant's
conduct is consistent with the causation test applied under 18
                                                                    9


     The defendant urges us to recognize a limitation on the

scope of restitution that would bar recovery in cases, such as

this one, in which the negligent acts of persons who intervene

or become involved in the case after the defendant's criminal

conduct break the causal connection between the defendant's

criminal conduct and the victim's economic loss.   In particular,

the defendant argues that, apart from and subsequent to his

conduct in stealing the victim's vehicle, the victim's economic

loss was caused by the failure of the victim and others to

comply with three requirements imposed by G. L. c. 266, § 29:8



U.S.C. § 2259(b)(3)(A)-(F) (2012).   See Paroline v. United
States, supra at 1719-1722.
     8
       General Laws c. 266, § 29, inserted by St. 1980, c. 463,
§ 4, provides in relevant part as follows:

          "Whenever a motor vehicle is stolen or
     misappropriated, the owner of record shall sign and submit
     to the appropriate police authority a statement under the
     penalties of perjury on a form containing such information
     relating to the theft or misappropriation of the vehicle as
     is prescribed by the registrar of motor vehicles.

          "Whenever a stolen or misappropriated motor vehicle is
     recovered by a police officer or other law enforcement
     officer, the police department shall notify the registry of
     motor vehicles, the owner of record and the storage
     facility if any, as soon as possible after the identity of
     the owner is determined. Such notification may be made by
     letter, telephone call or personal visit to the owner and
     shall include information as to the location of the
     recovered vehicle. In the event the vehicle is placed in a
     garage or other storage facility, the owner of said
     facility shall lose his lien for the reasonable charges for
     storage and towing unless he notifies the owner of record
     of the vehicle by certified mail and return receipt
                                                                  10


first, the failure of the police to notify the victim that his

vehicle had been recovered; second, the failure of the auto-body

shop to notify the victim, as the owner of record, in writing

that it was storing the victim's vehicle and the amount of the

storage fees; and third, the victim's failure, as the owner of

record, to notify the police in writing that his vehicle had

been stolen.

    Even if we assume, without deciding, that each of these

omissions represents an act of negligence that occurred

subsequent to the defendant's criminal conduct and that each

omission contributed to the victim's economic loss, the

defendant's argument fails.   The defendant has not offered any

authority for the view that negligent acts of the victim or

third parties that occur after the defendant's criminal conduct

break the causal connection that otherwise would support an

order of restitution.   The only case cited by the defendant,

Commonwealth v. Carlson, 447 Mass. 79 (2006), is inapposite.

There, the defendant was prosecuted for motor vehicle homicide

by negligent operation in violation of G. L. c. 90, § 24G(b).

Id. at 79-80.   The victim, who suffered severe chest and lung



    requested within five days of the date of said recovery or
    his actual knowledge of the identity of the owner of
    record. Said notice shall contain the information on the
    location of the vehicle and the amount of charge due on
    said vehicle."
                                                                     11


injuries as a result of the defendant's negligent and criminal

conduct, died four days after the accident of respiratory

failure as a result of her voluntary and entirely lawful

decision to forego intubation and respiratory support by means

of a ventilator.     See id. at 80-82.   There was competent medical

evidence that the victim would have survived if she had

submitted to mechanical ventilatory support and might have

returned to the condition that she was in before the defendant's

criminal conduct.     Id. at 82.   In rejecting the defendant's

argument that the Commonwealth had failed to prove that she

caused the death of the victim, the court explained that "[t]he

general rule is that intervening conduct of a third party will

relieve a defendant of culpability for antecedent negligence

only if such an intervening response was not reasonably

foreseeable."   Id. at 84 (emphasis supplied).     Here, by

contrast, the defendant's criminal conduct was based on an

intentional act.     Additionally, adding qualifications to the

test for causation outlined in McIntyre, like those advocated by

the defendant, would be contrary to that court's expressed

preference for a "less formulaic" approach to causation in

restitution cases.     Commonwealth v. McIntyre, 436 Mass. at 835.

    The result we reach is consistent with a principle at the

core of the modern law of torts, namely, that the scope of

liability of actors who engage in intentional wrongdoing is
                                                                   12


broader than is the scope of liability of actors who are merely

negligent.   See Restatement (Third) of Torts § 33(b) (2010) ("An

actor who intentionally or recklessly causes harm is subject to

liability for a broader range of harms than the harms for which

that actor would be liable if only acting negligently").   See

also id. at § 34 ("When a force of nature or an independent act

is also a factual cause of harm, an actor's liability is limited

to those harms that result from the risks that made the actor's

conduct tortious").9   While proof of causation is a question of

fact and each case must be decided on the basis of its

underlying facts, see Commonwealth v. McIntyre, supra at 834-

835, acts of ordinary negligence committed by third parties --


     9
       The defendant's reliance on State v. Childers, 979 So. 2d
412 (Fla. Dist. Ct. App. 2008), is misplaced because there the
victim did not suffer any economic harm based on the defendant's
crimes; "[r]ather, . . . the [victim's] loss was attributable to
[its] poor business judgment." Id. at 414. Likewise, the
defendant's reliance on United States v. Tyler, 767 F.2d 1350
(9th Cir. 1985), is unavailing. In Tyler, the court applied a
different test for causation than the test approved in McIntyre.
See id. at 1351 ("Restitution is proper only for losses directly
resulting from defendant's offense"). Moreover, in Tyler, the
court reasoned that restitution in the amount of the decrease in
the value of the stolen property -- which occurred between the
date of its theft and the date that the victim sold the property
-- was improper because the property was returned to the victim
on the date of its theft and "[a]ny reduction in its value
stem[med] from the [victim's] decision to hold the [property]
during a period of declining prices, not from [the defendant's]
criminal acts." Id. at 1352. As indicated above, in the
present case, the victim was not aware that his vehicle had been
recovered until he came to court for trial several months after
the theft.
                                                                   13


such as the police and the auto-body shop owner in this case --

or the victim, resulting in a delay in returning stolen property

to the victim, generally will be regarded as foreseeable results

of intentional criminal conduct and not significant enough to

break the causal chain of events leading from the defendant's

criminal activity to the victim's economic loss.    See State v.

McBride, 940 P.2d 539, 542-544 (Utah Ct. App. 1997).    Here, as

in McIntyre, supra, there was a significant causal relationship

between the defendant's criminal conduct and the victim's

economic loss.

    2.   There was sufficient evidence to support the

restitution order.    "Restitution may be ordered only for those

economic losses adequately documented by the victim and

established by the Commonwealth."    Commonwealth v. Denehy, 466

Mass. 723, 741 (2014).    "[T]he amount of restitution may not

exceed the victim's actual loss."    Commonwealth v. Henry, 475

Mass. 117, 129 (2016).    There must be a sound basis in the

evidence for the calculation of a restitution award.    See

Commonwealth v. Denehy, supra at 740-741.    The method by which

the amount of the restitution is calculated must be fair and not

arbitrary.   Ibid.   The defendant contends that the amount of

restitution ordered in this case was arbitrarily calculated

because it was not based on adequately documented economic

losses suffered by the victim.   In particular, the defendant
                                                                   14


disputes the basis for the judge's finding that the parties had

agreed to the amount of $3,000 as fairly representing the "book

value" of the vehicle.

     The record before us indicates that at the restitution

hearing, the Commonwealth argued that the amount of restitution

should be the total amount of the storage, mileage, and towing

fees, which was $3,036.    The defendant argued that no award of

restitution should be made due to the intervening acts of

negligence.   The judge inquired about the book value of the

vehicle and the Commonwealth stated, "Your Honor, I believe we

made an approximation last time that it was . . . a little under

. . . what the storage fees were, but we don't have a full book

value."10   Defendant's counsel did not object to this statement

by the Commonwealth.     Defense counsel also declined the judge's

invitation to cross-examine the victim.    See Commonwealth v.

Casserly, 23 Mass. App. Ct. 947, 947 (1986) (upholding

restitution award as the defendant did not request a hearing on

restitution and the judge heard testimony about the value of the

vehicle during trial, fixed an amount that seemed reasonable

     10
       In its brief, the Commonwealth points out that there was
a restitution hearing in December, 2014, "where the approximate
book value of the vehicle was discussed, but ultimately the
[c]ourt decided not to assess the restitution because it would
be better left for the sentencing judge." The Commonwealth adds
that it was unable to obtain the transcript of that hearing
because it was inadvertently deleted by the court. The
defendant does not dispute the accuracy of this statement.
                                                                    15


given that testimony, and gave defense counsel time to consult

his client, request a further hearing on restitution, or

object).   Based on the Commonwealth's statement, the judge

determined that restitution should be ordered in the amount of

$3,000.    Our review of the record finds support for this factual

finding.   See Commonwealth v. Casanova, 65 Mass. App. Ct. 750,

756 (2006) ("We accept the factual findings supported by the

record, as the judge was in the best position to determine

matters of credibility").11

     Despite the lack of agreement with regard to whether

restitution should be ordered, this is a case in which the

parties essentially agreed to the amount of restitution

eventually ordered by the judge.    The method of calculating the

amount of the restitution order was not arbitrary, but instead

based on facts that were not in dispute.    In making an award of

restitution, it is widely accepted that "some degree of

approximation" is permitted, and that "mathematical precision"

is not required.    See United States v. Kearney, 672 F.3d 81, 100

(1st Cir. 2012) (quotations omitted).    Contrast Commonwealth v.

Hastings, 53 Mass. App. Ct. 41, 42 (2001) (concluding that a

restitution order for the economic loss of a 1984 vehicle could


     11
       Because the judge found that the parties had reached an
agreement on the amount of restitution that should be paid to
the victim, the decision in Commonwealth v. Henry, supra, does
not affect our analysis.
                                                                   16


not be based simply on the cost of buying a different make and

model of a 1992 vehicle to replace it).   We discern no abuse of

discretion.

                                   Order of restitution
                                     affirmed.
