                    IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1665
                           Amended December 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRYL B. SHEARS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      A defendant appeals an order requiring him to pay restitution. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.

          In this appeal of a restitution order, we are asked to resolve whether it is

foreseeable that police officers would end a high-speed chase of the van driven by

Darryl Shears by hitting his van with their police vehicles. Because we find such

actions foreseeable, we affirm the restitution order.

          On February 11, 2016, the City of Davenport filed a restitution claim for

$7093.88 for damages to the police vehicles sustained during the officers’ efforts

to stop the van Shears was driving. In April 2016, the State and Shears entered

into a plea agreement, and Shears agreed to plead guilty to a lesser-included

eluding charge and second-degree criminal mischief as charged.1

          At the April 8, 2016 plea hearing, Shears admitted to intentionally damaging

other people’s property in excess of $1000 and failing to stop when signaled to do

so by a uniformed officer in a marked patrol car using flashing lights and sirens

while exceeding twenty-five miles per hour. The court deferred acceptance of the

pleas pending receipt of a presentence investigation report and set sentencing for

May 19, 2016. But before the hearing, Shears filed a motion in arrest of judgment

on May 4, asking the court to set aside his pleas and claiming he was not aware

“of the potential consequence [of] restitution for both counts.”       After the May

hearing on his motion, the court found Shears had “buyer’s remorse” and denied

relief.

          On July 26, 2016, the court sentenced Shears to five-year and two-year

consecutive, indeterminate terms of incarceration. The court also required “a


1
 The State agreed to drop another charge, possession of controlled substances, second
offense.
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victim restitution hearing be held within the next [thirty] days.” At that August 24

hearing, Shears did not challenge the dollar amount of restitution, only whether he

was responsible for paying it. The court’s September 16, 2016 restitution order

required Shears to pay “$7093.88 for damage to Davenport Police Squad Cars.

The squad cars were damaged when the police were chasing [Shears] by car for

his eluding and criminal mischief crimes, which he later” pled to and was sentenced

on.

       Shears filed a pro se notice of appeal on September 28, 2016. On February

1, 2017, the supreme court’s order noted Shears had timely appealed the

September 16, 2016 restitution order and granted Shears a delayed appeal from

the July 26, 2016 sentencing order, combining the appeals under the same docket

number.

       In this restitution proceeding, if we find no error of law, we are bound by the

district court’s factual findings if they are supported by substantial evidence. See

State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).           Restitution connotes

“compensating the victim for loss,” and it “forces the offender to answer directly for

the consequences of his or her actions.” Id. The rationale for a restitution order

under Iowa criminal law “is similar to the rationale of tort under civil law.” Id. Iowa

law requires restitution to be ordered in all criminal cases in which the defendant

pleads guilty. See Iowa Code § 910.2 (2015).

       “Any damages that are causally related to the criminal activities may be

included in the restitution order.”    Bonstetter, 637 N.W.2d at 168.        Thus, in

calculating the amount of restitution, the court “must find a causal connection

between the established criminal act and the injuries to the victim” by a
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preponderance of the evidence. Id.; State v. Holmberg, 449 N.W.2d 276, 377

(Iowa 1989) (noting the same restitution requirements).

       On appeal and citing to cases from Wisconsin, Shears argues his “act of

eluding itself did not cause the damage” to the police vehicles. “Instead, it was the

actions of the Davenport police” “in carrying out their attempts to stop him” that

caused the “damage to the police vehicles.” See State v. Haase, 716 N.W.2d 526,

527, 530 (Wisc. Ct. App. 2006) (denying restitution where officer drove squad car

into field during pursuit, officer stopped car without incident to pursue defendant

on foot, and officer’s car subsequently burst into flames); State v. Storlie, 647

N.W.2d 926, 929 (Wisc. Ct. App. 2002) (denying restitution for the cost of

destroyed “stop sticks” utilized to end high-speed chase because “stop sticks” were

tool similar to police department’s cost of overtime and thus, a normal cost of law

enforcement).

       We find the Wisconsin cases Shears cites factually distinguishable and

inapplicable. Utilizing the Iowa standard of proximate cause, we conclude the

prosecution here has met its causation burden if substantial evidence shows the

damage to the police vehicles was “a reasonable foreseeable consequence or

within the range of harms” of Shears eluding the officers who were trying to stop

him. See State v. Tyler, 873 N.W.2d 741, 749 (Iowa 2016) (holding that “[e]ven if

‘proximate cause’ or what we now call ‘scope of liability’ remains part of the State’s

causation burden in a criminal case” there is substantial evidence “a group assault

on [the victim] was a reasonably foreseeable consequence or within the range of

harms of [defendant’s] initial act” of punching the victim in the head and knocking

him down); see also State v. Dillon, 637 P.2d 602, 608 (Or. 1981) (allowing
                                          5


restitution for damage to the sheriff’s car that defendant hit with his own car

because such damage “is an item of damages for which defendant could have

been civilly liable under any recognized formulation of tort law”).

       Similarly, in this restitution challenge, we find the officers using their

vehicles to hit the vehicle Shears was driving in an attempt to stop him “was a

reasonably foreseeable consequence or within the range of harms” of Shears

leading the officers in a high-speed chase and refusing to stop while being

pursued. In sum, we find the State satisfied its burden of proving causation and

affirm the restitution order. See State v. Davis, No. 15-1223, 2016 WL 6902325,

at *1 (Iowa Ct. App. Nov. 23, 2016) (resolving restitution challenge and finding

evidence supported “district court’s conclusion the manner of [the defendant’s]

operation of the vehicle” “caused the damages” to the other driver’s vehicle).

       AFFIRMED.

       Tabor, P.J., dissents; McDonald, J., concurs.
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TABOR, Presiding Judge (dissenting)

       I respectfully dissent. In this eluding case, the City of Davenport did not

qualify as a “victim” under Iowa Code section 910.1(5) (2015) (defining victim as

“a person who has suffered pecuniary damages as a result of the offender’s

criminal activities”). The statutory term “person” is broad enough to include a

government entity like the Davenport police department. See State v. Hagen, 840

N.W.2d 140, 147 (Iowa 2013). But the problem here is the police did not suffer

pecuniary damages as a result of Shears’s criminal activities.

       “The words ‘as a result of’ in the definition of ‘victim’ clearly connote

causation.” State v. Starkey, 437 N.W.2d 573, 574 (Iowa 1989) (citation omitted).

The restitution chapter defines “criminal activities” as any crime for which there is

a plea of guilty or a verdict of guilty, or is admitted by the offender, whether or not

prosecuted. Iowa Code § 910.1(1). Pecuniary damages include “all damages to

the extent not paid by an insurer, which a victim could recover against the offender

in a civil action arising out of the same facts or event.” Id. § 910.1(3).

       Shears pleaded guilty to felony eluding and criminal mischief in the second

degree. The criminal mischief charge related to his collision with a chain link fence

on private property at the end of the chase. The State did not charge Shears with

criminal mischief related to impacts with the police squad cars, likely because it

could not prove that Shears intentionally damaged the squad cars that, in fact, ran

into him. See id. § 716.1; State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998)

(requiring State to prove defendant intended to cause damage).

       Nevertheless, the police department’s restitution claim listed damages to

three police cars incurred when the officers rammed the vehicle Shears was
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driving. The claim listed the following repair amounts: $574.91 for squad 134;

$4570.28 + $61.50 (tow) for squad 311; and $1887.19 for squad 360—for a total

of $7093.88.       These repairs were necessitated by the officers’ enforcement

decisions while pursuing Shears and not by the criminal activities to which Shears

pled guilty.

        The minutes of evidence indicated Davenport police located Shears, “a

wanted suspect,” inside a residence on West Locust Street. As Shears left the

residence in a minivan, officers “initiated a vehicle pursuit” and eventually a total

of five squad cars joined the chase. According to police reports attached to the

minutes, Shears was “currently on the pursuable list.” At least two different officers

performed or tried to perform PIT maneuvers2 to impede the progress of the

minivan. Officer Bobby Flaherty described his decision to place his squad car in

harm’s way:

        Shears was slowing to an acceptable speed and turning south on
        Pine [Street]. Due to the reduced speed I was comfortable
        attempting a PIT maneuver in the corner. I made contact with
        Shears’s van on the rear driver side with my squad car’s front
        passenger side. The PIT maneuver worked and the van spun around
        180 degrees. I exited my squad car and ordered Shears out of the
        vehicle at gunpoint. Shears made eye contact with me but refused
        to comply with my orders. Shears then drove back east through the
        alley he had just come from.


        Nothing in the minutes or attached police reports suggests the damage to

the squad cars was the “result of” Shears’s criminal activity—willfully failing to bring



2
 A “Precision Intervention Technique” or PIT maneuver is a driving technique used by
police officers that is designed to halt a fleeing motorist by hitting his or her car at a specific
point to throw the car into a spin and brings it to a stop. See Harris v. Coweta Cty, 433
F.3d 807, 810 (11th Cir. 2005), rev’d, Scott v. Harris, 550 U.S. 372, 375 (2007).
                                          8

the minivan to a stop when given a signal to do so by police. See Iowa Code §

321.279(3).

       The majority purports to use “the Iowa standard of proximate cause” to hold

that the State met its burden to show the squad car damage was “a reasonably

foreseeable consequence” of the officers trying to stop Shears’s eluding. That

holding contravenes our prior restitution case law on causation. “The damage

must have been caused by the offender’s criminal act to justify the restitution

order.” State v. Ihde, 532 N.W.2d 827, 829 (Iowa Ct. App. 1995) (emphasis added)

(discussing similarity between tort element of proximate cause and causal

connection necessary for restitution award).

       The legal or proximate cause test is now analyzed as “scope of liability.”

See Thompson v. Kaczinski, 774 N.W.2d 829, 836-39 (Iowa 2009) (adopting

concept from Restatement (Third) of Torts: Physical & Emotional Harm (Am. Law

Inst. 2010) [hereinafter Restatement Third]). The question is whether the police

department’s decision to deploy its squad cars to crash into the fleeing vehicle was

within the “scope of liability” for Shears’s conduct. See In re J.S., No. 13-0174,

2013 WL 5291959, at *5 (Iowa Ct. App. Sept. 18, 2013) (holding officer’s torn

hamstring was not within the scope of liability of a juvenile delinquent’s act of

running from officer after being told to stop). Applying the “risk standard” from the

Restatement (Third), I would find the damage to the squad cars resulting from the

officers’ PIT maneuvers was outside the scope of the risk taken by Shears when

he ignored the police lights and sirens. See Restatement (Third) § 34 cmt. g

(“When the harm that occurs arises from a risk other than one that was among

those that made the actor’s conduct tortious, the actor is not liable.”).
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       In this case, it was not Shears’s own criminal activities, but the officers’

intentional strategy to disrupt those activities that resulted in the damage. Law

enforcement agencies generally are not compensated for the public money they

spend in performing their basic functions of investigating and solving crimes. See

People v. Ford, 49 N.E.3d 954, 959 (Ill. Ct. App. 2016). But an agency may receive

restitution for its loss if, for example, “a person commits criminal damage to

property by destroying a police department squad car.” Id. (collecting cases,

including Dillon, 637 P.2d at 608, cited by the majority). The difference between

our instant facts and Ford, Dillon and the other collected cases is that Shears did

not drive into the squad cars. They drove into him. The definition of a victim

embraces a notion of “passivity, where the harm or loss suffered is generally

unexpected and occurs without the voluntary participation of the person suffering

the harm or loss.” See Igbinovia v. State, 895 P.2d 1304, 1308 (1995) (holding

police department which expended money in drug-buying operation to obtain

evidence against defendant was not “victim” within meaning of statute). I would

reverse the restitution order.
