2019 UT App 51

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHAD EVERETT MORRISON,

Appellant.

Opinion

No. 20170885-CA

Filed April 4, 2019

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 161910294

Dayna Moore, Attorney for Appellant

Simarjit S. Gill and Ann P. Boyle, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred.

POHLMAN, Judge:

¶1 As part of a criminal sentence, a defendant may be 

ordered to make restitution for any pecuniary damages 

proximately caused by his crime. Chad Everett Morrison, after 

pleading guilty to assaulting his roommate (Roommate), was 

ordered to pay Roommate’s moving expenses and lost wages.

But Roommate was already planning on moving, and a private 

investigator testified that Roommate was let go from a 

temporary assignment a day after the assault due to a reduced 

workload. Morrison now appeals, contending that these facts 

demonstrate that the moving expenses and lost wages were not 

proximately caused by his crime. We affirm in part and reverse 

in part.
State v. Morrison

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BACKGROUND

¶2 On September 29, 2016, Morrison pushed Roommate into 

a wall and punched him several times. In the altercation, a 

television was destroyed, and a dresser and a nightstand were 

damaged. The State charged Morrison with assault and criminal 

mischief.

¶3 Morrison pled guilty to assault, and in exchange the 

State dismissed the criminal mischief charge. Morrison 

stipulated, however, to paying restitution—which was thought 

to be no more than $500 based on the charging document—on 

the dismissed criminal mischief charge. After sentencing, 

the State filed a motion for restitution in the amount of $6,818.42.

Morrison disputed that figure, and the district court 

scheduled an evidentiary hearing to determine the appropriate 

restitution amount.1

¶4 At the hearing, Roommate testified that he had “to move 

as a result” of the assault.2 Expenses for the move included $35 

for an application fee, $200 for a security deposit, $333.25 for the 

 

1. Morrison initially failed to respond to the State’s motion for 

restitution, and the district court ordered Morrison to pay the 

full amount requested by the State. The court later granted his 

motion to vacate the restitution order, and the matter was set for 

an evidentiary hearing.

2. Morrison makes no distinction between damages that were 

proximately caused by the assault as opposed to criminal 

mischief. Thus, we also make no distinction and, for simplicity, 

refer to the assault and the criminal mischief charges collectively 

as “assault,” unless context suggests otherwise.
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services of a professional moving company, and $70.28 for one 

month’s increased rent.3

¶5 On cross-examination, Roommate conceded that he and 

his girlfriend (Girlfriend) “had planned to leave before [the 

assault] happened.” According to his testimony, Roommate and 

Girlfriend “really wanted [their] own place” and had told 

Morrison that they “planned to move in the next couple of 

months.” Because Girlfriend was pregnant, Roommate hired a 

professional moving company that “moved everything.” When 

asked whether he tried to “rent a truck” in order to move 

himself, Roommate responded, “No. There was me and a 

pregnant female to move an entire apartment, so . . . .”

¶6 Roommate also testified that he “missed work” due to 

the assault. Roommate worked with a staffing agency 

and requested reimbursement for a total of ten days of 

lost wages, explaining that four days were used to “recover[] 

from the assault itself” and the “six additional days” were 

for “moving, finding apartments and making sure [they] had 

a place to live come the first of the month.”4 Roommate testified 

that he was told by the staffing agency to take “as much time 

as [he] needed to get everything figured out.” On cross-

 

3. Roommate paid $500 a month while living with Morrison. The 

first month’s rent at his new apartment was $570.28.

4. The district court stated at the hearing that “most the wages, 

or the moving expenses are reasonable, and [it was] not 

struggling with those.” The court did struggle, however, “with 

the six additional days” requested by Roommate. The prosecutor 

agreed that the six additional days were not allowed under the 

statute but argued that “even when [the] Defense filed their 

objection [to the restitution amount,] . . . they acknowledged that 

the four days was probably reasonable.”
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examination, Roommate testified that he had a temporary 

position through the staffing agency at a company

(the Company). But Roommate also testified that he was 

“supposed to get hired on there” permanently and that 

“[b]ecause [he] was unable to show up for those four days,” the 

Company “decided that [it was not] going to move forward with 

[his] contract.”

¶7 The defense called a private investigator who testified 

that he spoke with the staffing agency and that Roommate’s 

temporary position at the Company was terminated “early 

because of workload.” The investigator testified that 

Roommate’s temporary position “ended on September 30th of 

2016 . . . because they ran out of work or they didn’t need an 

extra person.”

¶8 The district court entered findings of fact and 

conclusions of law. As for the moving costs, the court found 

that although Roommate and Girlfriend “were planning to 

move anyway,” Morrison’s assault “caused the victim and his 

girlfriend to move earlier than planned” and “that it is difficult 

and more expensive to be forced to relocate early rather than 

as planned.” It then found the $35 application fee, the 

$200 security deposit, the $333.25 professional-movers expense, 

and the $70.28 increased-rent expense were reasonable.

It calculated the total amount of moving expenses to be $638.53.

¶9 As for lost wages, the court found that there was some 

“indication [that Roommate] would have been able to work 

somewhere else even if the job was terminated” at the Company.

The court also found that Roommate “testified that he was hired 

by the staffing agency and worked regularly and that he did not 

work for four days because of [Morrison’s] actions.” The court 

found that the cost of missing four days of work was $464.

Adding all the damages together, and finding that Morrison was 
State v. Morrison

20170885-CA 5 2019 UT App 51

able to pay, the court ordered complete and court-ordered 

restitution in the amount of $1,397.43.5

¶10 Morrison appeals.

ISSUE AND STANDARD OF REVIEW

¶11 Morrison contends that “neither the assault nor the 

dismissed criminal mischief charge was the proximate cause” of 

Roommate’s move or termination from his temporary work 

assignment. He therefore asserts that the district court erred in 

awarding damages for Roommate’s moving expenses and lost 

wages. An appellate court “will not disturb a district court’s 

restitution determination unless the court exceeds the authority 

prescribed by law or abuses its discretion.” State v. Ogden, 2018 

UT 8, ¶ 25, 416 P.3d 1132 (cleaned up). We have discerned an 

abuse of discretion when the district court granted the victim “a 

windfall” by, for example, failing to limit restitution “to that 

amount which is necessary to compensate a victim for losses 

caused by the defendant.” State v. England, 2017 UT App 170, 

¶ 15, 405 P.3d 848 (cleaned up).

ANALYSIS

¶12 “When a defendant is convicted of criminal activity that 

has resulted in pecuniary damages, . . . the court shall order that 

the defendant make restitution” to the victims of his crime. Utah 

Code Ann. § 77-38a-302(1) (LexisNexis Supp. 2016) (emphasis 

added). Restitution comes in two forms: complete and courtordered. Id. § 77-38a-302(2). Court-ordered restitution is 

 

5. This amount included $150 for a broken television and $144.90 

to replace Roommate’s damaged nightstand. Morrison does not 

challenge those portions of the decision.
State v. Morrison

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primarily concerned with what the defendant is able to pay, but 

complete restitution means the “restitution necessary to 

compensate a victim for all losses caused by the defendant.” Id.

§ 77-38a-302(2), (5) (emphasis added). And the terms “resulted 

in” and “caused by the defendant” in section 77-38a-302 refer to 

proximate cause. State v. Ogden, 2018 UT 8, ¶¶ 32, 39, 416 P.3d 

1132.

¶13 Proximate cause includes but-for causation (that is, factual 

causation), but it requires “some greater level of connection 

between the act and the injury than mere ‘but for’ causation.” 

Raab v. Utah Ry., 2009 UT 61, ¶ 23, 221 P.3d 219; see also State v. 

Oliver, 2018 UT App 101, ¶ 21, 427 P.3d 495. It also requires 

foreseeability; indeed, the general test for proximate cause “is

whether under the particular circumstances the defendant 

should have foreseen that his conduct would have exposed 

others to an unreasonable risk of harm.” State v. Becker, 2018 UT 

App 81, ¶ 13, 427 P.3d 306 (cleaned up). In restitution cases, the 

burden is on the State to prove proximate cause. See id. ¶ 12; 

Oliver, 2018 UT App 101, ¶ 22; see also State v. Trujillo, 2017 UT 

App 151, ¶ 7, 405 P.3d 745 (“It is the State’s burden to prove that 

the victim has suffered economic injury and that the injury arose 

out of the defendant’s criminal activities.” (cleaned up)), 

overruled on other grounds by State v. Ogden, 2018 UT 8, 416 P.3d 

1132.

¶14 Morrison contends that the State did not meet its burden 

to prove his actions were the proximate cause of either 

(1) Roommate’s moving expenses or (2) Roommate’s lost wages.

We agree in part with the first contention but reject the second.

¶15 First, we conclude that although the evidence supports 

the district court’s finding that Morrison’s assault caused 

Roommate to move earlier than planned, the court erred in 

deciding that Morrison’s assault proximately caused all of 

Roommate’s moving expenses. As an initial matter, the district 
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20170885-CA 7 2019 UT App 51

court did not exceed its discretion in finding that Roommate and 

Girlfriend expedited their move by one month. According to 

Roommate’s testimony, even before the assault he and Girlfriend 

were planning “to move in the next couple of months.”

¶16 But even though the move was accelerated due to the 

assault, the pecuniary harm must be tied to the expedited nature 

of the move. The $35 application fee and $200 security deposit 

do not have any connection to the earlier-than-planned move. 

Roommate’s own testimony provided that he and Girlfriend 

were “planning to move anyway.” And there was no evidence 

connecting the need to pay an application fee or security deposit

to Morrison’s actions, or suggesting that Roommate would not 

have incurred those expenses had he moved a month later, as 

expected. Similarly, the $333.25 spent on professional movers is 

unconnected to the expedited moving date. The district court 

found that Roommate “had to hire assistance” because 

Girlfriend “was pregnant and unable to help in the move.” But 

there was no evidence presented at the restitution hearing that, 

had Roommate moved as planned, he would not have hired the 

moving company in any event.

¶17 Had the State presented evidence that connected these 

expenses to the expedited nature of the move, we would likely 

reach a different result. But because there was no evidence tying 

these expenses to Roommate’s need to move a month sooner 

than planned, there is no basis in the evidence to conclude that 

the expenses were proximately caused by the assault. Thus, the 

court speculated without a sufficient evidentiary basis that

Roommate incurred the application fee, security deposit, and 

professional-movers expense as a result of Morrison’s actions. 

See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 

(“When the evidence supports more than one possible 

conclusion, none more likely than the other, the choice of one 

possibility over another can be no more than speculation . . . .”). 

Consequently, in awarding pecuniary damages for these 
State v. Morrison

20170885-CA 8 2019 UT App 51

expenses, the district court granted Roommate “a windfall” and 

therefore exceeded its discretion. See State v. England, 2017 UT 

App 170, ¶ 15, 405 P.3d 848 (cleaned up); see also State v. Brown, 

2009 UT App 285, ¶¶ 11–12, 221 P.3d 273 (reversing a restitution 

award for moving expenses when there was no evidence of a 

causal connection between the defendant’s crime and the 

victim’s relocation), overruled on other grounds by State v. Ogden, 

2018 UT 8, 416 P.3d 1132.

¶18 The court, however, properly awarded pecuniary 

damages of $70.28 for one month’s increased rent. As the district 

court recognized, Roommate’s request for only one month’s 

additional rent was an “acknowledgment that [Roommate and 

Girlfriend] would have moved in a month.” But unlike the other 

expenses, there was evidence to support the court’s conclusion 

that this increased rent was proximately caused by the expedited 

nature of the move. While living with Morrison, Roommate paid 

$500 a month in rent. After the move, Roommate paid $570.28 

for the first month’s rent at Girlfriend’s and his new apartment.

Had Roommate and Girlfriend moved as planned one month 

later, Roommate might have saved the increased rent. And it 

was foreseeable that attacking Roommate, who was already 

considering moving, would prompt Roommate to expedite his 

move to a new apartment with potentially higher rent. See Becker, 

2018 UT App 81, ¶ 13.

¶19 Second, we conclude that the district court did not exceed 

its discretion in determining that Morrison’s assault proximately

caused Roommate’s lost wages for four days. Granted, there was 

limited evidence given by Roommate at the restitution hearing 

that he lost his job at the Company due to missing four days of 

work after the assault. And the private investigator hired by 

Morrison presented evidence impeaching Roommate’s narrative.

But the district court did not have to accept the impeachment 

evidence. “Credibility determinations are within the province of 

the [district court]” because a district court “is uniquely 
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20170885-CA 9 2019 UT App 51

equipped to make factual findings based exclusively on oral 

testimony due to [its] opportunity to view the witnesses 

firsthand, to assess their demeanor and to consider their 

testimonies in the context of the proceedings as a whole.” Kidd v. 

Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200 (cleaned up); see also

Utah R. Civ. P. 52(a)(4) (stating that a “reviewing court must 

give due regard to the trial court’s opportunity to judge the 

credibility of the witnesses”).

¶20 Roommate testified that he “missed work” due to his 

injuries from the assault and that he was told by the staffing 

agency to take “as much time as [he] needed to get everything 

figured out.” He also testified that he was “supposed to get 

hired on” at the Company, but due to missing work—with the 

staffing agency’s approval—the Company decided not “to move 

forward with [his] contract.” And even if Roommate was 

terminated early from his temporary assignment with the 

Company due to “workload,” Roommate testified that he was 

placed at the Company by a staffing agency. The district court 

used these facts to infer that Roommate “would have been able 

to work somewhere else even if the job [at the Company] was 

terminated.” That was a reasonable inference based on 

Roommate’s testimony.

¶21 Morrison challenges this conclusion, asserting that the 

district court incorrectly “shifted the burden” to him in finding 

that Roommate “would have been able to work somewhere else” 

when the State did not provide any specific evidence on this 

point. Not so. Roommate testified that he was placed by a 

staffing agency and “missed work,” and the court inferred that 

the staffing agency, who had told Roommate to take the time he 

needed to recover, would have placed him somewhere else. If 

there were truly no work for Roommate, he would not have 

needed the staffing agency’s blessing to take time off. Thus, the 

court did not shift the burden. It simply made a reasonable 

inference to find that the State had met its burden.
State v. Morrison

20170885-CA 10 2019 UT App 51

¶22 Further, the district court credited Roommate’s testimony, 

but it did not blindly follow it. Roommate testified that he 

missed four days to “recover[] from the assault itself” and six 

additional days “making sure [he and Girlfriend] had a place to 

live.” The court stated that it was “struggling with the six 

additional days” but found the four days used “to heal” was 

reasonable. It therefore limited its restitution order to the four 

days Roommate testified he missed because of Morrison’s 

assault. Because the district court “is uniquely equipped to make 

factual findings based exclusively on oral testimony,” it did not 

exceed its discretion in awarding Roommate his lost wages. Kidd, 

2014 UT App 26, ¶ 34 (cleaned up).6

 

6. We also note that although there was limited evidence 

presented at the restitution hearing on this point, such paucity is 

at least partly attributable to Morrison. In his motion seeking to 

vacate the district court’s original restitution order, Morrison 

conceded that “restitution is . . . appropriate for the four days 

[Roommate] was unable to work.” The State contends that 

Morrison invited any error by making this concession. At the 

restitution hearing, however, Morrison argued that all of 

Roommate’s lost wages were “too attenuated” and were “not 

appropriate.” With this clarification, we conclude that Morrison 

did not “encourage[] the trial court to make an erroneous 

ruling,” see State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699, because 

it would have been clear to the court after the hearing that 

Morrison was not stipulating to four days’ worth of lost wages. 

But Morrison’s initial concession, though not inviting the court

to err, did lull the State into thinking that reimbursement for 

four days of lost wages was not going to be a point of contention 

or require much evidence. The State argued at the hearing that 

“even when [the] Defense filed their objection and asked to . . . 

set the hearing they acknowledged that the four days was

probably reasonable.” Thus, the limited evidence presented by 

(continued...)
State v. Morrison

20170885-CA 11 2019 UT App 51

CONCLUSION

¶23 The district court did not err in awarding Roommate 

$70.28 for one month’s increased rent and $464 for four days’ lost 

wages. But we reverse the district court’s award of restitution for 

a $35 housing application fee, a $200 security deposit, and a

$333.25 professional-movers expense. Because Morrison does not 

challenge the restitution award of $150 for a broken television 

and $144.90 for a damaged nightstand, we remand to the district 

court to reduce the restitution order to $829.18, the amount that 

covers the pecuniary harm proximately caused by Morrison’s 

crime.

 

(...continued)

the State is understandable, and the district court did not exceed 

its discretion in drawing reasonable inferences from the evidence 

that was available.