                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                   JERONIMO LINARES, Appellant.

                         No. 1 CA-CR 15-0810
                           FILED 1-10-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-103476-001
              The Honorable Michael D. Gordon, Judge

                 RESTITUTION ORDER VACATED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
                           STATE v. LINARES
                           Opinion of the Court



                                OPINION

Judge Donn Kessler delivered the opinion of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.


K E S S L E R, Judge:


¶1             Jeronimo Linares (“Linares”) appeals the superior court’s
order that Linares pay $550 in restitution to the Maricopa County
Attorney’s Office (“MCAO”) arising from his child abuse prosecution and
conviction. Linares argues that the court erred in ordering restitution under
Arizona Revised Statutes (“A.R.S.”) sections 13-603(C) (2016) and 13-804
(2016).1 For the reasons that follow, we vacate the restitution order.

               FACTUAL AND PROCEDURAL HISTORY

¶2           A jury found Linares guilty of one count of child abuse, a class
four felony. Linares was then sentenced to three years’ probation and
ordered to pay $550 in restitution.

¶3            Linares’ conviction arose from a preschool employee’s
noticing bruising on a child’s thighs, stomach, arms, and neck. The
preschool then notified the Mesa police, and the police determined that the
child should undergo a forensic medical exam at the Mesa Family
Advocacy Center. At the Advocacy Center, Nurse JB met with the police
detective and was informed of the suspected child abuse. JB is an employee
at the Phoenix Children’s Hospital and conducts forensic examinations as
a part of her employment. The MCAO contracts with the Phoenix
Children’s Hospital to conduct these evaluations at the Advocacy Center
for a standard fee of $550 for use in criminal prosecutions.

¶4             JB conducted a medical forensic examination of the victim. As
JB testified, she measured and photographed the bruises and recorded
other evidence of trauma. The examination was then documented as a
report for the State’s investigation. As part of the examination, JB
determined that abuse was the likely cause of the bruises. Importantly,


1      We cite to the current versions of statutes unless changes material to
this decision have since occurred.


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                            Opinion of the Court

neither JB’s testimony at trial nor her report showed that she treated the
victim for the bruises or recommended any medical treatment.

¶5            The superior court ruled Linares was obligated to pay $550 as
restitution because the costs associated with the forensic examination were
“neither purely investigative nor purely for the purposes of medical
evaluation.” Linares timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21 (2016), 13-4031 (2016), and 13-4033 (2016).

                               DISCUSSION

¶6             We review restitution orders for an abuse of discretion. State
v. Lewis, 222 Ariz. 321, 323, ¶ 5 (App. 2009) (citations omitted). An abuse of
discretion occurs if the superior court misapplies the law or legal principles,
or makes a decision unsupported by facts or legal policy. Gorman v. City of
Phoenix, 152 Ariz. 179, 182 (1987) (citation omitted). However, “we view the
facts in the light most favorable to affirming the court’s findings.” In re
Andrew A., 203 Ariz. 585, 586, ¶ 5 (App. 2002) (citation omitted). We review
questions of statutory interpretation de novo. Lewis, 222 Ariz. at 324 n.2, ¶
5.

¶7            A person convicted of an offense must pay restitution “to the
person who is the victim of the crime.” A.R.S. § 13-603(C). Restitution is
recoverable for a loss which (1) is economic; (2) would not have occurred
but for the criminal conduct; and (3) is directly caused by the criminal
conduct. Lewis, 222 Ariz. at 324, ¶ 7 (citations omitted). However, the
defendant is only liable for expenses that “flow directly from the
defendant’s criminal conduct, without the intervention of additional
causative factors.” State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002).

¶8             Linares argues that the superior court erred and the MCAO is
not entitled to restitution because (1) the $550 it paid to Phoenix Children’s
Hospital was for an examination that was a routine function of the MCAO
in investigating the crime; (2) the MCAO is not a victim of the crime; and
(3) the exam was too attenuated from the crime to qualify for restitution.2

¶9           Restitution is not available for monetary expenses incurred as
part of a routine function or for consequential damages that are too
attenuated from the crime. We find the analysis in State v. Guilliams, 208
Ariz. 48 (App. 2004), controls this case. In Guilliams, the superior court

2      The parties dispute whether Linares argued in the superior court
that the MCAO was not a victim of the crime for purposes of restitution.
We need not decide that issue to resolve the appeal.


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                            STATE v. LINARES
                            Opinion of the Court

awarded the Arizona Department of Corrections (“ADOC”) restitution for
costs incurred to secure the prison after an escape, and for the subsequent
investigation of the escaped prisoner. Id. at 54, ¶ 19. We held that “costs
incurred as a result of damage to or unauthorized use of ADOC property
during an escape or escape attempt itself” could be awarded as restitution
because they were the “direct costs of that escape.” Id. at 54, ¶ 21. These
costs included security measures and precautions established as an
immediate response on the day of the prison escape because they were
“extraordinary costs to the prison . . . beyond the normal cost of operating
the prison that day.” Id.

¶10              However, we reversed the remainder of the restitution award,
which included costs of conducting interviews, writing reports, collecting
evidence, and ADOC travel expenses to catch the escaped prisoner. Id. at
54, ¶ 22. Although these costs would not have been incurred but for the
criminal act, we held they were largely indistinguishable from “the normal
costs of investigating any crime and arresting and capturing the suspect.”
Id. at 55, ¶ 23. We reasoned that “[a]lthough the escape undoubtedly created
additional burdens for ADOC personnel, . . . these costs do not represent a
measurable economic loss to ADOC.” Id. at 55, ¶ 23. As we explained, the
State must prove that the expense would not have occurred but for the
criminal conduct and that there is a nexus between the criminal conduct
and the expense which is not too attenuated (either factually or temporally).
Id. at 53, ¶ 18 (citation omitted). The key to the analysis is reasonableness,
which is determined on a case by case basis. Id. (citation omitted). Thus, we
held there was a difference “between extraordinary costs directly resulting
from an escape and attenuated costs incurred in investigating an escape
that has been successful.” Id. at 55, ¶ 23. We further noted that awarding
costs under a “but for” standard was illogical if it included costs the
government would incur as part of its routine functions. Id.; accord In re J.U.,
241 Ariz. 839, 844-45, ¶¶ 18-23 (App. 2016) (holding that reimbursing police
officers for costs in traveling to court to testify at trial was error because
such costs were incurred as part of the police department’s routine
functions).

¶11           MCAO contracts with the Phoenix Children’s Hospital to
perform forensic medical evaluations. It reimburses the Phoenix Children’s
Hospital a flat fee of $550 for these examinations, which are later used in
criminal proceedings. JB works as a nurse at the Phoenix Children’s
Hospital and conducts forensic examinations as a part of her routine job.
JB’s report notes that the victim did not receive treatment for wound care
or other medications. Additionally, JB’s discharge instructions only
recommended follow-up photographs, that the safety plan be reviewed by


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                             STATE v. LINARES
                             Opinion of the Court

the Arizona Department of Child Safety, and that the child continue care
with a primary physician.

¶12            Thus, the record indicates that JB did not provide any medical
treatment to the child. Rather, she merely conducted a forensic examination
to see if there was evidence of child abuse and later so testified at trial. JB’s
examination was consistent with the MCAO’s investigatory duties as
opposed to medical treatment of the victim. Therefore, the court’s
conclusion that the examination fee was recoverable as restitution because
it was both medical and investigative in nature was erroneous. Simply
because the MCAO contracted out part of its investigative function to a
forensic examiner does not make the costs for such a forensic examination
for later use at trial an expense entitling the State to restitution.

¶13           Restitution was improper because the cost of the victim’s
forensic examination was too attenuated from Linares’ crime. As in
Gulliams, normal, routine costs associated with investigating criminal
conduct are too far removed from the crime to entitle the State to restitution
for economic loss.

                                CONCLUSION

¶14       The superior court erred in ordering $550 in restitution for the
MCAO. Accordingly, we vacate the court’s restitution order.3




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




3       In reviewing the appellate record in this matter, we note that Linares
filed a second motion to extend time to file an opening brief which was not
ruled on. Linares filed his opening brief three days after making that
motion. The motion is denied as moot.


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