2012 VT 91


State v. Shepherd (2010-336)
 
2012 VT 91
 
[Filed 26-Oct-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 91

 

No. 2010-336

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Grand Isle
  Unit,


 


Criminal Division


 


 


Donald Shepherd


March Term, 2012


 


 


 


 


Mark
  J. Keller, J.


 

Diane C. Wheeler, Franklin and Grand Isle Deputy State’s
Attorney, St. Albans, for 
  Plaintiff-Appellee.
 
Allison N. Fulcher of Martin & Associates, Barre, for
Defendant-Appellant.
 
Barbara Prine, Vermont Legal Aid, Inc., Burlington, for
Amicus Curiae.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   In July 2010, defendant pled guilty to
charges of aggravated sexual assault, lewd and lascivious conduct with a child,
and sexual exploitation of a child in exchange for dismissal of several other
pending charges.  His victim was a ten-year-old child.  Defendant is
serving a sentence of twenty-five years to life in prison.  At issue in
this appeal is the court-ordered restitution for relocation expenses of the
victim and his family.  We hold that the trial court did not abuse its
discretion in finding that the relocation in this case was a direct result of
defendant’s criminal acts.  Restitution is therefore appropriate, and we
affirm.
¶ 2.            
Mother has four children, including the victim, Juvenile 1, and his twin
brother, Juvenile 2.  Mother suffers from fibromyalgia, and Juvenile 2 has
autism spectrum disorder and kidney diseases that cause him constant
pain.  Mother hired defendant as a live-in nanny to help care for Juvenile
2.  At the time, the family lived in South Hero, a small, lightly
populated town in rural Grand Isle County.  Defendant sexually assaulted
Juvenile 1 numerous times over a two-month period in 2009.
¶ 3.            
Following defendant’s arrest, the case attracted media attention, and
Juvenile 1’s identity became known at his school and in the community at
large.  According to his mother, Juvenile 1 began to suffer adverse
effects: he was ignored by other children at school and was very anxious about
being known as the victim.  She claimed the school staff treated him
differently.  She reported that the family as a whole was ostracized; if
they went to a school play, no one would sit near them.  Juvenile 1 was
placed in therapy, and the counselor and his mother concluded that it would be
necessary to move away from Grand Isle County.
¶ 4.            
In considering where to move, mother had two requirements: She wanted
their new home to be far enough away that Juvenile 1 would be able to start
fresh without the community knowing about his past victimization, and she
wanted to be close to family in a state that offered sufficient resources for
Juvenile 2’s needs.  Mother’s decision boiled down to two places, both of
which were more than 2000 miles from Grand Isle County.  Mother decided on
Hawaii because there was existing family support there and the state offered
generous assistance to children with special needs such as Juvenile 2.
 The move ultimately cost $15,887.78.
¶ 5.            
The Victims’ Compensation Program had awarded compensation for and on
behalf of Juvenile 1 in the amount of $3900.68, which included $1645.00 for
mental health counseling, $255.68 for mileage, and $2000 for rent/relocation
costs.  The program petitioned the court for restitution from defendant
for the award.  The State also filed a request on behalf of Juvenile 1’s
mother for a judgment in the amount of $13,887.78 for relocation expenses over
and above the $2000 paid by Victims’ Compensation. The court initially denied
both requests for relocation expenses, finding that there was “no ‘direct link’
between the crime committed and the victim’s decision to relocate. 
Relocation was not a necessary result of the defendant’s crime.”  The state’s
attorney moved for reconsideration.  Vermont Legal Aid also filed a motion
for reconsideration on behalf of the victim.  Following a hearing, the
trial court issued an order granting restitution for the move to Hawaii in the
amount of $13,887.78.  The court found that defendant’s “criminal
behavior, in a small Vermont town, [led] directly to the family’s
ostracization, which resulted in the relocation.  The requisite causal
connection [between the crime and the loss] exists.”  The court also
explained that an order of restitution in this case would not constitute an
impermissible award for pain and suffering, because the relocation expenses
were “ascertainable and based on the disruption of the family’s life, not some
subjective emotional harm.”
¶ 6.            
On appeal, defendant argues that the relocation expenses incurred by
Juvenile 1 and his family were “tangential costs incurred as a result of
[defendant’s] criminal conduct, but not costs caused directly by his
crime.”  Defendant also argues that Hawaii is an unreasonable new
location.  
¶ 7.            
We review the trial court’s award of restitution for abuse of
discretion. See State v. Tetrault, 2012 VT 51, ¶ 10, ___ Vt. ___,
___ A.3d ___ (mem.) (holding that “trial court
properly exercised its discretion in determining that defendant’s acts directly
led to . . . injury”); State v. Kenvin, 2011
VT 123, ¶ 6, __­_ Vt. ___, 38 A.3d 26 (restitution orders reviewed for abuse of
discretion).  
¶ 8.            
Vermont’s criminal restitution statute requires a judge to consider
restitution in “every case in which a victim of a crime . . .
has suffered a material loss.”  13 V.S.A. § 7043(a)(1).  A
material loss means “uninsured property loss, uninsured out-of-pocket monetary
loss, uninsured lost wages, and uninsured medical expenses.”  Id.
§ 7043(a)(2).  We have held under this statute that there must be a
“direct link between the loss for which restitution is ordered and the conduct
for which defendant has been convicted.”  State v. LaFlam 2008 VT
108, ¶ 17, 184 Vt. 629, 965 A.2d 519 (mem.).
¶ 9.            
Defendant’s assertion that there is no direct link between the crime for
which he was convicted and the victim’s loss is unfounded.  Defendant
contends that there were intervening factors which caused the family to
move.  In general, a proximate-cause analysis is appropriate in
determining whether restitution should be granted.  See LaFlam,
2008 VT 108, ¶ 11.  Here, however, Juvenile 1’s emotional injury and ostracization
in a small town were the natural and probable consequences of the sexual
assaults, thereby necessitating relocation.  Cf. Estate of Summer v.
Dep’t of Soc. & Rehab. Servs., 162 Vt. 628,
629, 649 A.2d 1034, 1036 (1994) (mem.) (noting that efficient,
intervening cause is one which is “new and independent” and
unanticipated).  As the trial court found, Juvenile 1 suffered emotional
injury as a result of the sexual assaults, an injury that manifested itself in
an inability to live a normal life in the small Vermont town where his peers
knew about the sexual assaults he had suffered and ostracized him as a
result.  Juvenile 1 was no longer invited to friends’ houses, parents
instructed their children to avoid him, he was treated differently by school
staff, and members of the community ostracized the entire family.  The
victim’s counselor opined that Juvenile 1 could not begin the healing process
without relocating.  Given the severity of the crime in question and the
assessment of Juvenile 1’s counselor, the trial court’s findings that moving to
Hawaii would “allow [Juvenile 1] to restart his life in a safe, secure
environment away from the anxiety that his victimization would be discovered”
and that the requisite causal connection between the crime and the loss exists
are supported by the record and the law.  
¶ 10.        
Defendant observes that the family selected Hawaii as opposed to another
destination for particular, intervening reasons.  This is of no
moment.  Such an argument conflates the family’s reason for relocating
with the family’s reasons for relocating to Hawaii.  The trial court found
that the decision to relocate was a direct result of defendant’s crime.
 The secondary decision of where to relocate necessarily took into account
the unique needs of the family as a whole, as Juvenile 1 is a minor.
 Juvenile 1’s brother suffers from severe disabilities that require more
care than Juvenile 1’s mother, who suffers from fibromyalgia, can provide by
herself.  It is evident that Hawaii was chosen because the family has
relatives in Hawaii who can help care for the victim’s disabled sibling.
 In addition, Hawaii provides generous disability benefits.  In light
of these unique circumstances, the trial court found the choice of Hawaii to be
reasonable, a determination that is well within its discretion as
factfinder.  
¶ 11.        
The dissent urges that the relocation costs do not constitute material
loss, but are more akin to “emotional damages.”  Post, ¶ 20. 
The fact that Juvenile 1’s injury was emotional, however, does not necessarily
lead to the dissent’s conclusion that the relocation costs are more like
damages for pain and suffering or emotional trauma, which are not proper
subjects of restitution under 13 V.S.A. § 7043.  Indeed, our restitution
statute defines a “victim” as one who has suffered a physical, financial, or
emotional injury as a result of a crime. 13 V.S.A. § 5301(4) (emphasis
added).  The focus in awarding restitution to a victim is not the type of
injury sustained, but rather the link between the damages and the crime. 
If readily ascertainable costs associated with emotional injury arising
directly from a crime were not within the scope of restitution, as the dissent
suggests, restitution would not cover reasonable counseling expenses for
victims of crime.  We believe that is an unduly narrow construction of the
restitution statute.  
¶ 12.        
It is true that “damages that are not readily ascertainable, such as
pain and suffering [or] emotional trauma . . . are not proper
subjects of restitution.”  State v. Jarvis, 146 Vt. 636, 639, 509
A.2d 1005, 1006 (1986).  Here, however, the relocation expenses have a
specific monetary value.  As the trial court noted, “the relocation
expenses are certainly ascertainable and are based on the disruption of the
family’s life, not some subjective emotional harm.”[1]  In concluding that relocation
expenses are “not the equivalent of hospital bills, lost employment income, and
property damage,” post ¶ 19, the dissent would unduly limit the reach of
§ 7043.  See Jarvis, 146 Vt. at 638, 509 A.2d at 1006 (“[O]nly liquidated amounts which are easily ascertained and measured
are recoverable under the legislative scheme.  These amounts include, but
are not necessarily limited to, hospital bills, property value, and lost
employment income.”) (emphasis added).  The inclusion of “uninsured
out-of-pocket monetary loss” as a form of “material loss” indicates that
§ 7043 is expansive enough to permit restitution of relocation costs,
provided the trial court finds, as it did here, that there is a direct link
between the crime and the costs incurred.  
¶ 13.        
In this case, the trial court weighed the grievous nature of the crime
in question, as well as its profound effect on the victim, and concluded that
there was a direct link between the crime and the material loss incurred in
this particular relocation. As the trial court has discretion in making this
determination, we defer to its judgment and affirm.[2]  
Affirmed.

 


FOR THE COURT:


 


 


 


 


 


 


 


Chief
  Justice
 
 

¶ 14.        
SKOGLUND, J., dissenting. The majority finds that assigning to defendant
the costs of relocating a family to Hawaii is an appropriate use of the
restitution statute.  I dissent. 
¶ 15.        
Defendant sexually assaulted Juvenile 1 numerous times over a two-month
period in 2009. The crime attracted media attention and Juvenile 1 experienced
anxiety about being identified as the victim of the sexual abuse.  He was
afforded therapy.  His mother felt that the entire family was being
ostracized by the community.  Eventually mother decided to move the family
away from Grand Isle County to give her son a fresh start in a community that
did not know about his victimization.  She decided to move to Hawaii
because mother had family there and because Hawaii would provide assistance to
her other son, Juvenile 2, a child with special needs.  The move
ultimately cost $15,887.78. 
¶ 16.        
Initially, the trial court found that “[r]elocation was not a necessary
result of the defendant’s crime.”  A different judge responded to a motion
for reconsideration and granted restitution for the move to Hawaii.  The
majority adopts the court’s ultimate conclusion that defendant’s criminal
behavior in a small Vermont town caused the family’s perceived ostracism and
resulted in the relocation.  I cannot agree.  If the embarrassment
and distress that often visits any victim of a crime can be held to be a direct
result of a criminal act, then all crime victims seeking to relocate can look
to be reimbursed for moving expenses, especially given the reality that the
entire state of Vermont is a small town for purposes of identifying victims of
major crimes.  Further, it is difficult for this writer to catalog a
perceived shunning as anything other than subjective emotional harm. 
Under the standard adopted by the majority, there will be no limits as to what
can be considered the direct result of a crime.  And, what material loss
has this family suffered as a direct result of the sexual assault of Juvenile
1?  Is loss of anonymity to be considered a material loss?
¶ 17.        
Determining a restitution award is discretionary with the trial court. State
v. VanDusen, 166 Vt. 240, 245, 601 A.2d 1053, 1056 (1997).  And, as
defendant does not contest any of the court’s findings of fact, this Court need
only evaluate whether our restitution statute permits the award in this case.
Restitution is considered when “a victim of a crime . . . has
suffered a material loss.”  13 V.S.A. § 7043(a)(1).  A material
loss means “uninsured property loss, uninsured out-of-pocket monetary loss,
uninsured lost wages, and uninsured medical expenses.”  Id.
§ 7043(a)(2).  Our case law requires a “direct link between the loss
for which restitution is ordered and the conduct for which defendant has been
convicted.”  State v. LaFlam 2008 VT 108, ¶ 17, 184 Vt. 629,
965 A.2d 519 (mem.); see also State v. Tetrault, 2012 VT 51, ¶ 10,
 __ Vt.     ,       A3d
     .   We require “some form of
proximate causation in addition to causation in fact,” adopting the approach of
the vast majority of other jurisdictions.  LaFlam, 2008 VT 108,
¶ 11. 
¶ 18.        
In State v. Forant, we held that the restitution statute is
“narrowly drawn.”  168 Vt. 217, 222, 719
A.2d 399, 402 (1998).  In Forant, the defendant was convicted of
domestic assault of his wife.  Following the assault, the victim changed her
locks and telephone number, even though the locks were not damaged and the
defendant did not use the telephone to harass her.  We addressed the
question of whether the restitution statute covered the victim’s expenses in
making those changes.  The defendant argued that these expenses were “for
the purpose of improving her security, and were not to repair property damage
inflicted by him.”  Id. at 221, 719 A.2d at 402.  He reasoned
that there was no direct link between his criminal acts and her expenses, and
therefore the expenses were not compensable under the restitution
statute.  Id.  We agreed, holding that the victim’s expenses
were “indirect costs,” resulting from her fear of future harassment by her
husband.  Id. at 223, 719 A.2d at 403.  Perhaps most relevant
to our present case, we held: 
Even if one views
the victim’s fear as related to the crime committed against her, expenditures
made by her to restore her sense of security relate more to emotional distress
damages.  Such damages are not recoverable as restitution under our prior
holding in Jarvis v. State, 146 Vt. 636, 638, 509 A.2d 1005, 1006
(1986), because they are generally not liquidated and ascertainable.  The
fact that [the victim] reduced her damages to an amount certain by making
specified expenditures does not make what are essentially emotional distress
damages liquidated and ascertainable under § 7043.
 
Id. at 223,
719 A.2d at 403.
 
¶ 19.        
I cannot distinguish the situation presented in this case from the issue
in Forant.  The first reason for the family’s relocation—that
Juvenile 1 needed a fresh start in a new community where he would not feel
identified and embarrassed by his victimization—is a claim for emotional
damages.  The cost of moving to another state to escape Juvenile 1’s
perceived loss of privacy is not the equivalent of hospital bills, lost
employment income, and property damage—the types of liquidated damages
compensable under the statute.  Id. at 222, 719 A.2d at 402. 
In this case, the Victims’ Compensation Program requested reimbursement for
sums expended by the program for mental health counseling for Juvenile 1
($1,645.00). The court granted that request.  That award properly reflects
the purpose and scope of Vermont’s restitution statute.  However, mother’s
request for moving expenses does not reflect “a material loss,” 13 V.S.A.
§ 7043 (a) (1)-(2), and is not directly linked to the crime perpetrated
against her son.  
¶ 20.        
Rather, relocation in this situation is more akin to “pain and
suffering, emotional trauma, loss of earning capacity, and wrongful death
awards [which] are not proper subjects of restitution under § 7043, because a
restitution order in a criminal case is not the same as, and is no substitute
for, an award of civil damages.”  Forant, 168 Vt. at 222, 719 A.2d
at 402 (quotation and alteration omitted).  While the acts perpetrated
against Juvenile 1 may account for his anxiety and depression, and relocation
to another town may aid in his recovery, that is not the test.  His counselor
testified that a new location would not have as many “triggers” to remind him
of the abuse and would be “a fresh start.”[3]  That she is discussing emotional
damages suffered by Juvenile 1 should not be in dispute. 
¶ 21.        
At the restitution hearing, mother testified that while the family had
discussed moving to Hawaii before the assault on Juvenile 1, it was a long-term
plan that would not have come to fruition at least until her daughter finished
high school several years thereafter.  The State suggested that, but for
defendant’s criminal acts, the family would have stayed in South Hero, at least
in the short term.  However, just as in a tort case in which the
defendant’s negligent act must be the proximate cause of the plaintiff’s
injuries, there is a limit to how far the restitution statute can be used to
support life changes for a victim.  That is what we held in Forant. 

¶ 22.        
The family’s second reason for relocating—to be close to family and in a
state that offers Juvenile 2 the services he needs—is simply irrelevant and is
in no way linked to defendant’s crime.   Though 13 V.S.A. § 5301(4)
defines “victim” to include family members of a minor, there was nothing
presented to the court that would support a finding that Juvenile 2’s
relocation was related to the crime against his brother.  Accordingly,
there are no legal grounds upon which Juvenile 2’s needs can be factored into
an award of restitution in this case. 
¶ 23.        
Defendant’s crime was horrific and Juvenile 1 suffered direct
injury.  However, the impetus for the relocation to Hawaii is the result,
not of the sexual assault, but of the ensuing publicity and the revelation of
Juvenile 1’s identity.  Our restitution statute is not intended to provide
“new starts” to restore comfort for the victims.  The majority has
extended the concept of restitution by finding a weak causal link that I
suspect will be ever-expanding.  I would hold that the trial court’s
exercise of discretion in awarding restitution cannot be sustained.
¶ 24.         I
am authorized to state that Justice Burgess joins this dissent.

 
 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
The dissent places great emphasis on our holding in State v. Forant, 168
Vt. 217, 222-23, 719 A.2d 399, 402-403 (1998), that the restitution statute did
not cover the expenses a domestic-assault victim incurred in changing her locks
and phone number.  Post, ¶ 19 The emphasis is misplaced.  As
the dissent correctly notes, in Forant the victim’s expenses were
indirect costs resulting from a fear of potential future harassment. 168
Vt. at 223, 719 A.2d at 403.  Here, as the trial court observed, the
“family’s move was based not on a fear of being ostracized but on having
already been ostracized.”      


[2] 
Defendant challenges various statements made by amicus curiae in its
brief.  Because we have not relied upon those statements, defendant’s
request to strike is denied


[3] 
His counselor did not say he could not begin the healing process without
relocating, as reported by the majority.  In her letter to the court,
admitted through her testimony on the witness stand, she declared: 
“Although the community, friends and neighbors have been very supportive, I
believe it would be difficult for [Juvenile 1] to ‘move on’ in life.”  



