This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 8

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

JESSE ROGER OGDEN,

Appellant.

No. 20150922

Filed February 27, 2018

On Certification from the Court of Appeals

Second District, Ogden

The Honorable Judge Joseph Bean

No. 131902263

Attorneys:

Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,

Salt Lake City, Letitia J. Toombs, Ogden, for appellee

Samuel P. Newton, Kalispell, MT, for appellant

JUSTICE PEARCE authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUDGE BATES, and JUDGE MCKELVIE joined.

Having recused himself, JUSTICE HIMONAS does not participate 

herein; DISTRICT COURT JUDGE MATTHEW D. BATES sat.

Due to her retirement, JUSTICE DURHAM did not participate herein; 

DISTRICT COURT JUDGE RICHARD D. MCKELVIE sat.

JUSTICE PETERSEN became a member of the Court on

November 17, 2017, after oral argument in this matter,

and accordingly did not participate.

JUSTICE PEARCE, opinion of the Court:
STATE v. OGDEN

Opinion of the Court

2

INTRODUCTION

¶1 Jesse Ogden sexually abused Victim several times before her 

fifth birthday. Several years later, a friend of Victim’s mother 

repeatedly abused Victim sexually. Ogden pled guilty to two counts 

of aggravated sexual abuse of a child. Victim intervened in Ogden’s 

restitution hearing to seek restitution for, among other things, the 

anticipated cost of mental health treatment for the remainder of her 

life. The district court entered orders for complete and court-ordered

restitution. Ogden challenges the restitution orders, and levels a 

variety of arguments against them. Ogden contends that Victim’s 

damages were caused, at least in part, by her subsequent sexual 

abuse, and that the district court based its complete restitution 

award on speculation about expenses she would incur in the future.

¶2 We clarify the standard the Crime Victims Restitution Act 

requires the district court to employ to determine whether a 

defendant caused the loss for which a victim seeks restitution. And 

we remand to permit the district court to apply that standard. 

Because the issue will likely arise again on remand, we also take the 

opportunity to address Ogden’s argument that the district court did 

not have an evidentiary basis to support its conclusions about some 

of Victim’s future expenses.

BACKGROUND

¶3 Victim, her two brothers, her sister, and Victim’s mother 

(Mother) lived with Ogden. Ogden sexually abused Victim several 

times during the first few years of her life. When Victim was five 

years old, she disclosed the abuse to Mother. Ogden subsequently 

moved out of the family home. Victim’s brothers blamed and 

ostracized Victim for Ogden’s separation from the family. To protect 

her from her brothers’ harassment, Mother sent Victim to live with 

several other families.

¶4 After Victim disclosed that Ogden had abused her, she 

attended therapy for approximately four years. During this time, 

Victim demonstrated “angry and anxious behavior along with selfinjurious behavior of scratching herself when upset.” Toward the 

end of treatment, Victim’s therapist reported that Victim “had made 

considerable progress in treatment.” Victim concluded treatment 

when she was ten years old.

¶5 At this point, Victim resided with one of Mother’s friends, 

S.G. Mother was aware that S.G. was a registered sex offender. S.G.

sexually abused Victim on multiple occasions while she stayed with 

him. In 2012, the Division of Child and Family Services (DCFS) 
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Opinion of the Court

3

removed Victim from Mother’s custody and arranged therapy for 

Victim. Victim’s therapist diagnosed her with adjustment disorder 

and post-traumatic stress disorder. Victim also displayed symptoms 

of anxiety and depression. Victim continued therapy for a year. Her 

therapist noted that Victim “achieved [her] treatment goals of 

decreasing anxiety and increasing social skills” but discharged 

Victim from treatment because she was “unwilling to talk about the 

sexual abuse.” Her therapist concluded that “[t]herapy might be 

warranted in the future when [Victim] is ready to deal with [the 

sexual abuse].”

¶6 Ogden confessed to the abuse and the State charged him 

with one count of sodomy upon a child and one count of aggravated 

sexual abuse of a child. The State later amended the charges to two 

counts of attempted aggravated sexual abuse of a child. Ogden 

pleaded guilty to both counts and the district court sentenced him to 

two concurrent terms of three years to life. Victim filed a motion for 

restitution, arguing that she “suffered significant pecuniary damage 

as a result of the sexual abuse committed against her” by Ogden.1

Victim supported her motion with a forensic evaluation from Dr. 

David Corwin and a life care plan from Sheryl Wainwright. Both Dr. 

Corwin and Ms. Wainwright testified at the restitution hearing.

The Forensic Evaluation

¶7 Dr. Corwin, a psychiatrist, reviewed Victim’s medical, 

psychological, and DCFS records. Dr. Corwin also interviewed 

Victim and Mother on two occasions. He observed that Victim 

demonstrated clinically significant symptoms of post-traumatic 

stress disorder and moderate sexual distress. He concluded that 

Victim

suffers significant psychological trauma caused by 

[Ogden’s] sexual abuse of her, the family disturbances 

associated with that sexual abuse including 

harass[ment] by her older brothers and living away 

_____________________________________________________________

1 During the pendency of Ogden’s criminal case, Victim sued 

Ogden for general and punitive damages in civil court. Victim’s 

counsel in the civil case intervened in this restitution proceeding on 

Victim’s behalf. The civil case is the subject of another appeal in this 

court. Because we vacate the court-ordered restitution award that 

lies at the center of that appeal, we have also vacated the civil award

and remanded for further proceedings.
STATE v. OGDEN

Opinion of the Court

4

from her family with various other families 

culminating in her spending considerable time with 

[S.G.] . . . where she was probably sexually abused 

again . . . . The impacts of the sexual abuse are many 

and can last throughout life. Separate contributions of 

the sexual abuse by [Ogden and S.G.] cannot be 

reliably parsed. . . . The full extent of [Victim’s] injuries 

is likely not yet fully apparent. She may well develop 

more serious problems in the future that may require 

treatment and interventions beyond what I recommend 

at this time.

¶8 Dr. Corwin also opined that Victim “is at an increased risk 

for a variety of behavioral, psychiatric and physical problems 

because of the sexual abuse, exposure to domestic violence and the 

other stresses and losses associated with it.” He explained that these 

problems include “[d]epression, suicidal thoughts, drug and alcohol 

problems, . . . school performance and vocational problems among 

many others including long-term health problems like increased 

risks of heart disease not associated with other risk factors like 

diabetes, smoking and high blood pressure.”

¶9 Dr. Corwin recommended that Victim “receive a course of 

Trauma Focused Cognitive Behavior Treatment (TF-CBT) within the 

near future as soon as a therapist trained in TF-CBT, or some 

similarly evidence-based treatment, can be found for her.” He added 

that Victim “should be provided the resources for five additional 

trauma focused treatment courses, totaling six, of evidence-based 

individual psychotherapy over the course of her life. Each course 

may last for up to two years of weekly individual therapy.”

The Life Care Plan

¶10 Ms. Wainwright, a registered nurse and certified life care 

planner, created a life care plan for Victim (the Plan).2 To craft the 

Plan, Ms. Wainwright reviewed Victim’s medical, psychological, and 

DCFS records. She also reviewed Dr. Corwin’s forensic evaluation 

_____________________________________________________________

2 The Plan explains that it is “a dynamic document based upon 

published standards of practice, comprehensive assessment, data 

analysis, and research, which provides an organized, concise plan 

for current and future needs, with associated costs for individuals 

who have experienced catastrophic injury or who have chronic 

health care needs.”
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Opinion of the Court

5

and included his recommendations in the Plan. She did not examine

or interview Victim or Mother.

¶11 Ms. Wainwright projected the lifetime costs of treatment 

and care for Victim in several categories, two of which are relevant 

to this appeal: inpatient and outpatient psychiatric services, and 

medications.

1. Inpatient and Outpatient Psychiatric Services

¶12 The Plan estimated the lifetime cost of Victim’s 

psychological counseling, which included the cost of inpatient 

hospitalizations, intensive outpatient programs, a psychologist for 

Mother, a psychologist for Victim, eye movement desensitization 

and reprocessing (EMDR) therapy, and a neuropsychological 

evaluation. The Plan explained that “[d]epression, anxiety, 

self-destructive behaviors, dissociative behaviors, substance abuse, 

borderline personality disorder, promiscuity or sexual dysfunction, 

issues with relationships, and physical sequelae are common 

among[] victims of childhood sexual abuse.” The Plan also explained 

that “clients with PTSD who have suffered from childhood sexual 

abuse often have episodes in their lifetime that require an inpatient 

admission to manage their symptoms and stabilize them.”

¶13 The Plan noted that Victim had engaged in self-harm which 

“required emergency room visits for deep cuts that were not 

repairable at the time of her admission.” The Plan recommended that 

because Victim “was not in therapy [at the time of the Plan’s 

preparation], and her behavior is evidence that she does not have the 

strategies in place to manage her symptoms, she will likely require 

multiple admissions throughout her lifetime.” Ms. Wainwright 

explained that she had clients who were hospitalized multiple times 

a year. And the Plan included ten inpatient hospitalizations for 

Victim’s lifetime, lasting seven to twelve days per admission. It also 

included the cost of ten intensive outpatient programs. The Plan 

recommended EMDR because it is “a recommended and accepted 

treatment protocol for clients with PTSD.” Finally, the Plan 

recommended a neuropsychological evaluation “to evaluate 

[Victim’s] functional abilities for work and her personal life.”

2. Medications

¶14 The Plan also forecasted the lifetime cost of medications to 

combat anxiety, sleeping disorders, and pain. The Plan explained

that even though Victim was not taking any medications, 

“medication management is a vital part of treatment for anxiety, 

depression, and PTSD.” The Plan included the cost of various 
STATE v. OGDEN

Opinion of the Court

6

medications for depression because “[s]tudies indicate [they] are the 

most effective medications in the treatment of PTSD associated with 

childhood sexual abuse, with associated anxiety and depression.” 

The Plan also explained that “clients who are the victims of 

childhood sexual abuse tend to develop physical symptoms 

including chronic fatigue, fibromyalgia, chronic pain, irritable bowel, 

difficulty breathing, and cardiac issues,” but it is unclear whether the 

Plan included the cost of medications to treat these issues in its 

recommendation.

The Restitution Hearings

¶15 Victim intervened in the restitution hearing and was 

represented by the same counsel who was pursuing her claim for 

civil damages against Ogden in a separate proceeding. The State 

initially did not appear at the restitution hearing. The district court 

explained that it felt “uncomfortable without at least somebody 

sitting by from the State” because the court “believe[d] the State does 

need to be present.” The State then made a brief appearance but 

simply requested to be excused from the hearing. The State 

explained that it wanted to “leave [the hearing] in the hands of 

[Victim’s counsel]” because “[t]hey have . . . all of the documents, 

witnesses, et cetera.” Defense counsel did not object and the court 

excused the State. The State left the hearing, never to return. From 

that point on, Victim’s counsel presented evidence concerning the 

losses she alleged Ogden had caused (or would cause) her to suffer.

¶16 At the hearing, Dr. Corwin spoke generally about the 

impacts of sexual abuse on a child and the treatment that typically 

benefits abuse victims. He explained that most frequently, the 

impacts include “increased anxiety, depression, suicidal ideation, 

suicidal acts, self-harm acts, . . . diminished learning ability and later 

decreased vocational attainment, increased difficulty in 

interpersonal relationships and in intimate relationship[s], [and] 

problems with sexual functioning.” Dr. Corwin also explained that 

“sexually abused children are more likely to get sexually abused 

later in life.” He explained that his “view of future care of people 

who have experienced severe trauma is that they need to have the 

availability of periods of treatment throughout their life.”

¶17 Dr. Corwin reiterated the conclusions and treatment 

recommendations contained in his forensic evaluation. He explained 

that at the time he assessed Victim “she was very symptomatic,” 

“failing in school,” and engaging in self harm behaviors. He 

concluded that although Victim is “at least [of] normal intelligence,” 

she was failing school because “she is so adversely impacted from 
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Opinion of the Court

7

the severe stress that she has experienced.” Dr. Corwin concluded 

that Victim “is a severely affected sexually abused child . . . who 

shows a wide variety of psychological and behavioral problems that 

are known to be related to child sexual abuse and other early 

childhood adversity which she has also experienced, and that she is 

likely to have lifelong continued increased vulnerability to a wide 

variety of health, mental health, behavioral problems, and that the 

prognosis for her is guarded.”

¶18 Dr. Corwin acknowledged that Victim had been abused by a 

second individual years after Ogden’s abuse. Dr. Corwin testified 

that “[i]t’s not possible” to separate the psychological trauma that 

Victim suffered from each perpetrator “[b]ecause they are so 

interwoven and sort of mixed together in her.” He stated that he did 

not believe the damage could be “scientifically or reliably, accurately 

apportioned,” and to do so would be “pure speculation.” He opined

that one could “[p]robably . . . say that the subsequent stressor of 

being molested by [S.G.] has also contributed to the severity of her 

present condition,” but by how much was undeterminable. And 

additionally, Dr. Corwin explained that the earlier trauma “builds 

and relates and contributes to her vulnerability to the subsequent 

one.” He also noted that “in general it is believed that earlier 

traumas are more destructive because there were more 

developmental phases left for a person to go through. So early 

trauma, major trauma, is believed to be somewhat more severe than 

later trauma.”

¶19 Ms. Wainwright also testified at the hearing. She explained 

that she is not qualified to diagnose conditions or prescribe 

medications. She based her estimates in the Plan on “literature, [her] 

experience, and . . . one recommendation from Dr. Corwin.” When 

counsel asked her how she formulated the numbers in the Plan, she 

responded, “I made some assumptions. And when we do a life care 

plan, we’re kind of making assumptions and looking into a crystal 

ball a little bit. But . . . I made assumptions based on the statistics 

that I read in several articles talking about the long term effects of 

child sex abuse and also in my experience . . . case managing clients 

with child sex abuse.”

¶20 Before issuing its restitution order, the district court made 

several findings with respect to causation. The court acknowledged 

that Dr. Corwin “felt strongly that there was no way to really 

allocate the damage between perpetrators,” because it would be 

“pure speculation” to do so. But the court also found that “earlier 

trauma was believed by [Dr. Corwin] to contribute more to the later 
STATE v. OGDEN

Opinion of the Court

8

problems.” The court also found that, because Dr. Corwin testified 

that “sexual abuse victims are six times more likely to be sexually 

abused again,” Victim “was more vulnerable as a sexual abuse

victim because of [Ogden], because of his actions.”

¶21 Before issuing its restitution order, the district court asked 

“[w]hat, if any, is the collateral effect of this Court’s ruling on the 

civil matter or other matters that may be out there?” The court 

opined that “what happens here doesn’t have any effect on what has 

to be proven in [the] civil action,” because “there are no rules of 

evidence, very limited rules of evidence in this matter that would 

take place in the civil action.” Despite apparently misunderstanding 

that the complete restitution order would become an enforceable 

civil judgment, the district court entered a complete restitution order 

that totaled $2,092,306.

¶22 At a supplemental restitution hearing, the district court 

requested information about Ogden’s assets for a final determination 

of court-ordered restitution. Ogden held two life insurance 

policies—one for his wife and one for his children, including Victim. 

The court ordered that “the beneficiaries be changed on the policies,” 

so that Ogden’s “[c]hildren and wife . . . are all equal beneficiaries on 

the polic[y].” Victim requested that one-half of the equity in the 

home be applied to the value of court-ordered restitution. The court 

ordered that “[h]alf of the equity based on the market value would 

go to [Ogden’s] estate and would be used for the court ordered 

restitution.” The court stated it could “award that one-half of the 

equity. That can become a lien on the home. It can be foreclosed 

[and] would essentially be a lien on the home, whatever that final 

judgment is.”

The Restitution Order

¶23 As noted above, the court set complete restitution at 

$2,092,306. The court found that “[e]ach of the categories of figures 

from Dr. Corwin and Sheryl Wainwright are necessary for [Victim].”

The court ordered that “[a]ny biological or adopted children who are 

already listed on the life insurance policies are to be named as equal 

beneficiaries along with [Ogden’s] current wife. [Ogden] may not 

add or remove any beneficiaries from the policies.” The court 

“award[ed] [half] of the equity of [Ogden’s] home based on fair 

market value less [a] homestead exemption to be paid to [Victim].” 

Ogden’s court-ordered restitution was $127,089.60, plus one-half of 

the equity in the home, not including Ogden’s homestead 

exemption, plus Victim’s portion of the proceeds from the life 

insurance policies.
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Opinion of the Court

9

ISSUES AND STANDARDS OF REVIEW

¶24 Ogden argues that the district court misread the statute to 

conclude that the Crime Victims Restitution Act required something 

less than proximate causation to establish that Ogden caused 

Victim’s damages. We review questions of statutory interpretation 

for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 

P.3d 3.3

¶25 Although we vacate the district court’s restitution award 

because it applied an incorrect causation standard, we will address 

one of Ogden’s challenges to the restitution award because we 

believe it will be helpful to the district court on remand. See State v. 

Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (When “there are other issues 

presented on appeal that will likely arise [on remand],” we may 

“exercise our discretion to address those issues for purposes of 

providing guidance on remand.”). Ogden contends that the district 

_____________________________________________________________

3 Ogden also contends that the Crime Victims Restitution Act is 

unconstitutional because it “denied . . . Ogden due process by 

preventing him access to the procedural remedies he would have 

had in civil court . . . .” The State argues that Ogden’s constitutional 

challenge is unpreserved. Ogden counters that if his constitutional 

challenge was unpreserved, trial counsel provided ineffective 

assistance by failing to properly state his objection to the statute. We 

conclude that his due process argument is unpreserved and decline 

to review his ineffective assistance of counsel argument because it is 

inadequately briefed. An appellant’s brief “must explain, with 

reasoned analysis supported by citations to legal authority and the 

record, why the party should prevail on appeal.” UTAH R. APP. P.

24(a)(8). “A party must cite the legal authority on which its 

argument is based and then provide reasoned analysis of how that 

authority should apply in the particular case, including citations to 

the record where appropriate.” Bank of Am. v. Adamson, 2017 UT 2, 

¶ 13, 391 P.3d 196. “An appellant that fails to devote adequate 

attention to an issue is almost certainly going to fail to meet its 

burden of persuasion.” Id. Ogden cites no authority for the 

proposition that trial counsel’s failure to object on due process 

grounds was “objectively deficient” and provides us with only 

conclusory analysis on that topic. Ogden’s briefing does not 

persuade us and we leave the constitutional question for another 

day.
STATE v. OGDEN

Opinion of the Court

10

court abused its discretion in its calculation of complete restitution 

because Victim’s damages were impermissibly speculative. We “will 

not disturb a district court’s [restitution] determination unless the 

court exceeds the authority prescribed by law or abuses its 

discretion.” State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104.

ANALYSIS

I. The Crime Victims Restitution Act Permits

Recovery of Costs the Defendant Has Proximately

Caused the Victim to Suffer

¶26 The Crime Victims Restitution Act (CVRA)4 requires courts 

to order restitution “[w]hen a defendant enters into a plea 

disposition or is convicted of criminal activity that has resulted in 

pecuniary damages . . . .” UTAH CODE § 77-38a-302(1). The CVRA 

requires the district court to calculate two types of restitution: 

complete restitution and court-ordered restitution. See id. 

§ 77-38a-302(2).

¶27 “Complete restitution” means the “restitution necessary to 

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

§ 77-38a-302(2)(a). The court determines complete restitution based 

solely on the losses the victim has suffered, without regard to the 

defendant’s ability to pay. See id. § 77-38a-302(5)(b). Once the district 

court determines “that a defendant owes restitution, the clerk of the 

court . . . enter[s] an order of complete restitution . . . on the civil 

judgment docket . . . .”5 Id. § 77-38a-401(1).

_____________________________________________________________

4 Crime Victims Restitution Act, UTAH CODE §§ 77-38a-101–

77-38a-601.

5 If the victim chooses to pursue a civil action to recover damages 

in addition to those in a complete restitution order, “[e]vidence that 

the defendant has paid or been ordered to pay restitution . . . may 

not be introduced in any [related] civil action . . . . However, the 

court shall credit any restitution [already] paid . . . against any 

judgment in favor of the victim in the civil action.” Id. 

§ 77-38a-403(1).

During the proceedings below, the district court questioned

“[w]hat, if any, is the collateral effect of this Court’s ruling on the 

civil matter or other matters that may be out there?” The court 

further stated that “what happens here doesn’t have any effect on 

what has to be proven in [the] civil action,” because “there are no 

(continued . . .)
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Opinion of the Court

11

¶28 “Court-ordered restitution,” on the other hand, “means the 

restitution the court having criminal jurisdiction orders the 

defendant to pay as a part of the criminal sentence.” Id. 

§ 77-38a-302(2)(b). Unlike complete restitution, courts consider the 

effect on the defendant to set the amount of court-ordered 

restitution, including the defendant’s “financial resources,” “other 

obligations,” “the rehabilitative effect,” and “other 

circumstances . . . .” Id. § 77-38a-302(5)(c). The district court then 

orders the defendant to pay the restitution as “part of the criminal 

sentence.” Id. § 77-38a-302(2)(b).

¶29 Ogden argues that the CVRA requires a defendant to only 

pay for losses that he proximately caused and that the district court 

applied the wrong causation standard. As an initial matter, it is not 

entirely clear what causation standard the district court used. It may 

have been but-for causation, or the “modified but for” test that our 

_____________________________________________________________

rules of evidence, very limited rules of evidence in this matter that 

would take place in the civil action. So . . . I can see why this would 

not have a binding effect in the . . . civil action.”

The district court correctly identified a number of problems with 

the restitution statute when it is applied to a complicated set of facts, 

but it misapprehended the impact of entering an award of complete 

restitution. The complete restitution order became a civil judgment 

that Victim was entitled to attempt to collect. It appears that the 

Legislature crafted this restitution framework to provide an efficient 

and less intrusive way for a victim to obtain restitution for losses a 

defendant has caused. And the system may work effectively when 

the losses are simple and clear cut. For example, if a defendant 

breaks a victim’s glasses during an assault, the district court is well 

positioned to order a defendant to pay the cost of replacing the 

glasses without the benefit of the procedures that would normally 

apply to a civil case. As this case highlights, that framework does not 

work as well when there are difficult issues of causation or a need to 

predict future expenses. That category of cases may benefit from the 

tools we have developed in the civil context to deal with complex 

questions of causation and damages. There are at least two ways to 

address this: the Legislature could revisit the statute or the Supreme 

Court Advisory Committee on the Rules of Criminal Procedure 

could examine what we might do within the existing statutory 

framework to promote a process that is fair to both victims and 

defendants in more complex cases.
STATE v. OGDEN

Opinion of the Court

12

court of appeals has applied on a number of occasions. See State v. 

Poulsen, 2012 UT App 292, ¶ 11, 288 P.3d 601 (“Utah has adopted a 

modified ‘but for’ test to determine whether pecuniary damages 

actually arise out of criminal activities.” (quoting State v. Brown, 2009

UT App 285, ¶ 11, 221 P.3d 273)). See also State v. Ruiz, 2016 UT App 

18, ¶ 12, 366 P.3d 1230 (“In order to determine complete restitution, 

the trial court was required to employ ‘[a] modified “but for” test.’”

(alteration in original) (quoting State v. Ruiz, 2013 UT App 166, ¶ 8, 

305 P.3d 223)); State v. Birkeland, 2011 UT App 227, ¶ 11, 258 P.3d 662

(“The circumstances . . . readily support an award of restitution for 

the loss . . . under our modified but for test.”). Notwithstanding that 

ambiguity, it is clear that the district court employed something 

other than proximate cause to assess which of Victim’s losses Ogden 

caused. And this matters because the causation standard applied 

could well affect the outcome of this case.

¶30 The State argues that but-for causation is the appropriate 

standard, but also contends that the causation standard is irrelevant 

because any standard—including proximate cause—would support

the restitution award the court entered. 

¶31 To determine what causal connection the Legislature 

intended to apply to the CVRA, we start with the statute’s language. 

“‘When interpreting a statute, it is axiomatic that this court’s primary 

goal “is to give effect to the legislature’s intent in light of the purpose 

that the statute was meant to achieve.”’” Garfield Cty. v. United States, 

2017 UT 41, ¶ 15, -- P.3d -- (quoting Biddle v. Wash. Terrace City, 1999 

UT 110, ¶ 14, 993 P.2d 875). “The best evidence of the legislature’s 

intent is ‘the plain language of the statute itself.’” State v. Miller, 2008 

UT 61, ¶ 18, 193 P.3d 92 (citation omitted).

¶32 The CVRA addresses causation in two provisions. The 

statute allows the district court to enter an order “[w]hen a 

defendant enters into a plea disposition or is convicted of criminal 

activity that has resulted in pecuniary damages . . . .” UTAH CODE 

§ 77-38a-302(1) (emphasis added). And the district court awards 

“‘[c]omplete restitution’ . . . to compensate a victim for all losses 

caused by the defendant.”6 Id. § 77-38a-302(2)(a) (emphasis added). 

Thus, the relevant language for our analysis is “resulted in” and 

_____________________________________________________________

6 Court-ordered restitution does not have a separate causation 

standard. See UTAH CODE § 77-38a-401(2).
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Opinion of the Court

13

“caused by.” And, unfortunately, neither speaks explicitly to the 

causation standard the Legislature intended.7

¶33 First, the phrase “resulted in” does not, by itself, tell us what 

type of causation the statute requires. To “result” is “to proceed or 

arise as a consequence, effect, or conclusion.” Result, 

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary

/result (last visited Feb. 7, 2018). However, something that would 

not have happened but for someone’s action (a but-for cause) could 

be described as “a consequence, effect, or conclusion,” just as easily 

as an action that had a more direct causal connection (such as 

proximate cause). See id.

¶34 “Caused by” reveals just as little about what the Legislature 

intended. “Caused by” could refer to a but-for cause or a proximate 

cause. UTAH CODE § 77-38a-302(2)(a). As such, the plain language by 

itself does not answer the question.

¶35 We confronted a similar linguistic puzzler in Barneck v. Utah 

Department of Transportation. 2015 UT 50, 353 P.3d 140. There, we 

needed to determine what causation standard the Legislature 

intended to apply to a provision of the Governmental Immunity Act 

(GIA). Id. ¶ 2. The GIA waives immunity for “any injury caused 

by . . . a defective, unsafe, or dangerous condition of any highway 

[or] . . . culvert,” but “reinstated [immunity] for injuries that ‘arise [ ] 

out of, in connection with, or result[ ] from’ a latent defective 

condition of a culvert; from the ‘management of flood waters’; or 

from the ‘construction, repair, or operation of flood or storm 

systems.’” Id. ¶¶ 2, 36 (alterations in original) (omissions in original)

(citations omitted).

¶36 We ultimately concluded that the GIA reinstates immunity 

only when proximate cause exists between the injury and the defect, 

management, or construction. Id. ¶¶ 36, 44. There, we recognized 

that “the [‘]results from’ formulation may properly be understood as 

the invocation of a but-for test,” but that “[s]ometimes ‘results from’

_____________________________________________________________

7 Ogden also argues on appeal that damages should be 

apportioned between him and S.G. We do not decide whether the 

Liability Reform Act has any place in restitution proceedings 

because Ogden did not preserve the argument below. 

Apportionment was discussed only briefly and generally, and 

Ogden never raised the Liability Reform Act at the restitution 

hearing.
STATE v. OGDEN

Opinion of the Court

14

is understood to convey the principle of proximate cause.” Id. ¶¶ 39, 

41.

¶37 We also reasoned that “courts ‘read phrases like “results 

from” to require but-for causality’ only ‘[w]here there is no textual or 

contextual indication to the contrary.’” Id. ¶ 41 (alteration in original) 

(citation omitted). We then looked at the statutory framework for a 

contrary indication—an indication we found, in part, by 

acknowledging that a but-for standard for the reinstatement of 

immunity would, in practice, swallow the waiver.8 Id. ¶¶ 42–44.

¶38 Examining the CVRA’s structure, we conclude that the 

Legislature intended that the same causation standard apply in a 

restitution hearing that would apply in a parallel civil action. See,

e.g., Retherford v. AT&T Commc’ns of Mountain States, Inc., 844 P.2d 

949, 970–71 (Utah 1992) (requiring a showing that “conduct 

proximately caused [the plaintiff’s] emotional distress” to sustain an 

intentional infliction of emotional distress claim); Reynolds v. 

MacFarlane, 2014 UT App 57, ¶ 16, 322 P.3d 755 (“‘Damages . . . 

may . . . be recovered only to the extent that [the plaintiff] proves 

they were a proximate result’ of the nonconsensual touching.” 

(alteration in original) (second omission in original) (citation 

omitted)). The most compelling evidence springs from the provision 

that converts a complete restitution order into an enforceable civil 

judgment. See UTAH CODE § 77-38a-401. This means that even though 

the restitution proceeding takes place as part of a criminal 

_____________________________________________________________

8 The United States Supreme Court has also examined statutory 

language that did not explicitly reference the type of causation 

required and determined that Congress intended proximate cause. 

For example, in a case involving securities fraud, the statute required 

plaintiffs to prove that “the defendant’s misrepresentations ‘caused

the loss for which the plaintiff seeks to recover.’” Dura Pharm., Inc. v. 

Broudo, 544 U.S. 336, 345–46 (2005) (emphasis added) (citation 

omitted). The court concluded that “the law[] require[d] that a 

plaintiff prove that the defendant’s misrepresentation . . .

proximately caused the plaintiff’s economic loss.” Id. at 346. The 

court came to this conclusion because of the “common-law roots of 

the securities fraud action” and because it made the most sense 

given the purpose of the statute, which was “to protect [investors]

against those economic losses that misrepresentations actually 

cause.” Id. at 344–45.
Cite as: 2018 UT 8

Opinion of the Court

15

proceeding, the end result is a civil judgment that a victim is entitled 

to enforce.

¶39 To accept the State’s reading of the CVRA, we would need 

to conclude that the Legislature designed a system with dual tracks 

to a civil judgment with each track offering the victim a different 

causation standard. It is unlikely that the Legislature would have 

created a framework where the burden to prove causation varied 

depending on whether the victim proceeded in a criminal restitution 

hearing or a civil trial. At the very least, it is unlikely that the 

Legislature would have implemented such a system without 

explicitly expressing that intent in the statute. In the absence of such 

an expression of legislative intent, we opt for the reading that 

harmonizes with the causation standard that would apply in an 

analogous civil action: proximate cause.

¶40 We find further support for this reading in the CVRA’s 

definition of “pecuniary damages.” “Pecuniary damages” are “all 

demonstrable economic injury, whether or not yet incurred, which a 

person could recover in a civil action . . . .” Id. § 77-38a-102(6) (2015).9

This also suggests that the Legislature did not intend to create a 

separate track that would allow a victim to obtain a subset10 of the 

relief available in a civil case under a different causation standard.

¶41 The State offers several arguments to combat this 

conclusion. First, the State argues that the Legislature’s use of the 

term “all” in the phrase “all losses caused by defendant” requires the 

imposition of but-for causation. (Quoting Id. § 77-38a-302(2)(a)). We 

agree that the CVRA requires the court to consider all losses the 

defendant causes, but that simply raises the question of what losses 

_____________________________________________________________

9 The State notes that the Legislature amended the CVRA in 

2016 to change the definition of “pecuniary damages” from “all 

demonstrable economic injury, whether or not yet incurred, which a 

person could recover in a civil action . . .”, id. § 77-38a-102(6) (2015), 

to “all demonstrable economic injury, whether or not yet incurred, 

including those which a person could recover in a civil action . . . ,” id.

§ 77-38a-102(6) (emphasis added). This change does not cause us to 

doubt the conclusion that there is no textual basis to conclude that 

the Legislature intended to enact a system with competing causation 

standards.

10 Pain and suffering damages are not available in a restitution 

hearing. UTAH CODE § 77-38a-102(6).
STATE v. OGDEN

Opinion of the Court

16

the defendant caused. In other words, “all” does not tell us whether 

the Legislature intended proximate or but-for causation. 

¶42 Second, the State points to our statement in State v. Laycock 

that “proximate cause . . . [is] best left to civil litigation.” 2009 UT 53, 

¶ 29, 214 P.3d 104. We were not asked in Laycock to consider the 

CVRA’s causation standard. Rather, we were asked to examine if the 

CVRA required a district court to order both complete and courtordered restitution. Id. ¶ 19. We concluded that the CVRA requires a 

district court to “determine” complete restitution, but gives it 

discretion with regard to the imposition of court-ordered restitution. 

Id. ¶ 23. Along the analytical path, we remarked on a number of the 

difficulties a sentencing court would face in trying to resolve issues 

of causation and losses, most notably a lack of opportunity for 

discovery that would allow a defendant to “raise issues of proximate 

cause and comparative negligence by using depositions and 

interrogatories to gather relevant information.” Id. ¶ 22. This caused 

us to quote favorably the court of appeals’ observation that 

“[m]atters of negligence, proximate cause and the amount of 

resulting damages are best left to civil litigation.” Id. ¶ 29 (quoting

State v. Robinson, 860 P.2d 979, 983 (Utah Ct. App. 1993)). This 

statement was dicta then and is dicta now. And although we 

continue to agree that the civil arena appears to be a superior forum 

to adjudicate those issues, that statement should not be read to 

suggest that we had concluded the CVRA requires something other 

than proximate causation.11

_____________________________________________________________

11 In Laycock, we were less than clear on the question of whether 

the CVRA requires the district court to turn its complete restitution 

calculation into an order that the court clerk enters on the civil 

judgment docket. We acknowledged “that ambiguity infects the 

restitution statute’s grant of discretion to trial courts.” Laycock, 2009 

UT 53, ¶ 23 n.2. We complained that in one section the CVRA states 

that “the court may require a convicted defendant to make 

restitution” and in another it provides that “the court shall order that 

the defendant make restitution to victims.” Id. (emphases omitted) 

(citation omitted). We also noted that the statute appears to allow the 

court to determine if restitution is “appropriate or inappropriate.” Id.

(citation omitted). And although we said that provision 

“unambiguously cedes to trial courts the discretion to either award 

or to decline to make an award so long as the court explains its 

reasoning on the record,” id., we then appear to go out of our way to 

(continued . . .)
Cite as: 2018 UT 8

Opinion of the Court

17

¶43 Third, the State argues that the application of proximate 

cause does not comport with the purposes of the restitution statute 

that we identified in Laycock: compensation, rehabilitation, and 

deterrence. 2009 UT 53, ¶ 18. As an initial matter, reading statutory 

language in light of perceived legislative purpose is a very tricky 

species of argument. The plain language of the text provides the best 

evidence of legislative intent. Attempts to read statutory language in 

the light of a perceived purpose (or purposes) can distort our view of 

the plain language. This is, in part, because the statutory text already 

reflects the balance the Legislature has struck between competing 

policies and purposes.

¶44 The State’s argument illustrates the challenge. The State 

posits that “the more stringent a test of legal causation adopted, the 

more these statutory purposes [of compensation and deterrence] are 

inhibited.” That may be true, but the Legislature may have weighed 

the purposes differently and concluded that proximate causation 

best balanced compensation and deterrence with the ability for 

rehabilitation. Or the Legislature may have been motivated by a 

policy we did not manage to divine when we penned Laycock. And, 

in this case, resorting to the CVRA’s perceived purposes does not 

help us understand what the Legislature intended.

¶45 Fourth, the State argues that proximate cause would be

inappropriate because we have observed that “the foreseeability 

aspect of proximate causation is frequently relaxed in the case of 

intentional torts.” Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 51 n.3, 345 

P.3d 619 (citation omitted). But this does not tell us what the 

statutory language means. The fact that the “foreseeability aspect . . . 

is frequently relaxed” should inform the district court’s application 

of proximate cause principles on remand, not our decision on 

_____________________________________________________________

limit our analysis to an award of court-ordered restitution, see, e.g.,

id. ¶ 23 (“Although [a] court must determine complete restitution, it 

is not required to order a defendant to pay complete restitution as 

part of the criminal sentence. . . . After determining complete 

restitution, a district court judge may then order court-ordered 

restitution as part of the criminal sentence based on facts that would 

meet the same strict requirements as found in a civil setting.”). The 

parties have not squarely presented this question to us, but we 

would appreciate either the opportunity to address it or legislative 

intervention to eliminate the CVRA’s ambiguity.
STATE v. OGDEN

Opinion of the Court

18

whether to apply a proximate cause standard at the outset. Id.

(citation omitted).

¶46 Fifth, the State argues for a standard other than proximate 

cause based on our interpretation of two insurance contracts. In 

National Farmers Union Property & Casualty Co. v. Western Casualty & 

Surety Co., we considered a policy that excluded coverage for “bodily 

injury or property damages arising out of any premises, other than 

an insured premises, owned, rented, or controlled by any insured.” 

577 P.2d 961, 962 (Utah 1978). We reasoned that “[a]s used in a 

liability insurance policy, the words ‘arising out of’ are very broad, 

general and comprehensive. They are commonly understood to 

mean originating from, growing out of, or flowing from, and require 

only that there be some causal relationship between the injury and 

the risk for which coverage is provided.” Id. at 963; See also Viking 

Ins. Co. of Wis. v. Coleman, 927 P.2d 661, 665 (Utah Ct. App. 1996) 

(applying a causal nexus test similar to the modified but-for test the 

court of appeals applied in restitution cases). Because we interpret 

insurance policies broadly and in favor of the insured, our 

interpretation of insurance policies carries little persuasive value to 

help us understand this statutory language. See U.S. Fid. & Guar. Co. 

v. Sandt, 854 P.2d 519, 522 (Utah 1993) (“[I]nsurance policies should 

be strictly construed against the insurer and in favor of the 

insured . . . .”).

¶47 Finally, the State argues that we need not definitively 

resolve what the CVRA requires because the district court would 

reach the same result regardless of what causation standard is 

applied. We are not convinced that the outcome would have been 

the same had the district court required a showing of proximate 

cause. “For proximate cause to exist, the relationship between the 

negligent act and the injury must be foreseeable.” Fordham v. 

Oldroyd, 2007 UT 74, ¶ 30, 171 P.3d 411. Here, Ogden argued that 

Victim’s losses were not foreseeable because “Ogden would not 

reasonably foresee when he abused [Victim] that she would be again 

sexually abused eight years later by a third party . . . .” We do not 

opine on the foreseeability of Victim’s subsequent abuse, other than 

to acknowledge that Ogden has a good faith argument that it was 

not foreseeable. Thus, we rest our remand on the premise that 

application of an erroneous standard may have had a material effect 

and that Ogden is entitled to a proceeding conducted with the 

proper causative test in clear focus.

¶48 Because we find that proximate cause is required to find that 

a “criminal activity . . . has resulted in pecuniary damages” and had 
Cite as: 2018 UT 8

Opinion of the Court

19

the district court applied this causation standard, the outcome may 

have changed, we vacate and remand for further proceedings 

consistent with this opinion. 12 See UTAH CODE § 77-38a-302(1).

II. On Remand, the District Court Should

Ensure That the Restitution Award Is Not

Based on Speculative Evidence

¶49 Although we vacate the district court’s restitution award

and remand, Ogden presents another question that will likely arise 

again before the district court. Ogden argues that the district court 

erred by including speculative damages in its restitution 

calculation.13 Although it is unnecessary to our decision, we retain 

_____________________________________________________________

12 Our holding necessarily overrules the body of court of appeals 

precedent applying a “modified but for” test. These cases include: 

State v. Ruiz, 2016 UT App 18, ¶¶ 12–15, 366 P.3d 1230; State v. 

Wadsworth, 2015 UT App 138, ¶ 10, 351 P.3d 826, rev’d on other 

grounds, 2017 UT 20, 393 P.3d 338; State v. Ruiz, 2013 UT App 166, 

¶ 8, 305 P.3d 223; State v. Poulsen, 2012 UT App 292, ¶¶ 11, 16, 288 

P.3d 601; State v. Birkeland, 2011 UT App 227, ¶¶ 11–13, 258 P.3d 662; 

State v. Johnson, 2009 UT App 382, ¶ 46, 224 P.3d 720; State v. Brown,

2009 UT App 285, ¶ 11, 221 P.3d 273; State v. Harvell, 2009 UT App 

271, ¶¶ 12–14, 220 P.3d 174; and State v. McBride, 940 P.2d 539, 544 

(Utah Ct. App. 1997). We overrule all of these cases and any others 

that applied the “modified ‘but for’ test.” Brown, 2009 UT App 285, 

¶ 11 (citation omitted).

13 Ogden raises another issue that we are almost tempted to 

resolve. Ogden contends that the CVRA does not give the district 

court the authority to dictate how he is to pay his court-ordered 

restitution. In particular, Ogden argues that the district court 

impermissibly ordered him to give Victim one-half of the equity in 

his home and to modify his life insurance policies to give Victim a 

greater share of the proceeds.

Utah Code section 77-38a-302(5)(c)(iv) authorizes the court to 

consider, among other factors, “the ability of the defendant to pay 

restitution on an installment basis or on other conditions to be fixed 

by the court . . . .” Ogden claims that the language “on other 

conditions” cannot be stretched far enough to permit a court to order 

the sale of his home and the modification of his insurance policy. 

And he relies on the court of appeals’ decision in State v. Schweitzer, 

where the court held that the restitution statute “does not authorize 

(continued . . .)
STATE v. OGDEN

Opinion of the Court

20

the authority to reach issues when we believe our analysis could 

prove helpful on remand.14 See State v. Low, 2008 UT 58, ¶ 61, 192 

_____________________________________________________________

the trial court, upon imposing restitution, to also order the sale of [a] 

defendant’s property to satisfy that restitution order. Rather, it 

contemplates that the trial court’s role is limited to deciding, based 

on the statutorily imposed factors . . . whether restitution is 

appropriate and in what amount.” 943 P.2d 649, 653–54 (Utah Ct. 

App. 1997).

We believe that Ogden has raised an interesting and important 

issue. However, after the court of appeals decided Schweitzer, the 

Legislature enacted Utah Code section 77-38a-601, which provides 

that during a criminal proceeding, a prosecutor may “enter a 

temporary restraining order, an injunction, or both; . . . require the 

execution of a satisfactory performance bond; or . . . take any other 

action to preserve the availability of property which may be 

necessary to satisfy an anticipated restitution order.” Id.

§ 77-38a-601(1). The court may take action as requested if the court 

determines “there is probable cause to believe . . . that failure to enter 

the order will likely result in the property being sold, distributed, 

exhibited, destroyed, or removed from the jurisdiction of the court, 

or otherwise be made unavailable for restitution . . . .” Id.

§ 77-38a-601(2)(a)(i).

Neither party has cited section 601, nor addressed the effect that 

it may have on the court’s authority to impose “other conditions” on 

the payment of restitution. Id. § 77-38a-302(5)(c)(iv). Because of this, 

we do not think this appeal presents the appropriate vehicle for us to 

opine on the scope and meaning of the phrase “on other conditions.” 

But we do not intend our declination to reach the issue to be 

construed as an endorsement of the district court’s resolution.

14 We decline to exercise our discretion to address Ogden’s other 

challenges to the district court’s order. We note, however, that part 

of Ogden’s complaint concerns the district court’s failure to rule on a 

number of the issues Ogden raised. Indeed, at the restitution 

hearing, the district court stated that it would not decide an issue 

because it was one that the “higher powers will have to rule on.”

Assuming, for the sake of argument, that this court is the “higher 

powers” the district court referenced, we can understand the 

impulse to not address questions that a district court believes will 

ultimately be the subject of an appellate opinion. But the district 

court robs this court, and our judicial system, of valuable insight 

(continued . . .)
Cite as: 2018 UT 8

Opinion of the Court

21

P.3d 867 (When “there are other issues presented on appeal that will 

likely arise [on remand],” we may “exercise our discretion to address 

those issues for purposes of providing guidance on remand.”). The 

issue we examine is whether the damages included in the complete 

restitution award were speculative and therefore lacked a sufficient 

evidentiary basis.

A. Speculative Damages

¶50 The district court’s complete restitution award totaled 

$2,092,306—the projection of expected future life care plan costs the 

Plan predicted, accounting for inflation over Victim’s lifetime. In the 

restitution order, the district court found that “[e]ach of the 

categories of figures from Dr. Corwin and Sheryl Wainwright are 

necessary” for Victim. Ogden argues that several of these figures

were speculative and therefore lacked a sufficient evidentiary basis.

¶51 Restitution shall be awarded for pecuniary damages arising 

out of a criminal defendant’s activity. UTAH CODE § 77-38a-302(1). 

Pecuniary damages are

all demonstrable economic injury, whether or not yet 

incurred, including those which a person could recover 

in a civil action arising out of the facts or events 

constituting the defendant’s criminal activities and 

includes the fair market value of property taken, 

destroyed, broken, or otherwise harmed, and losses,

including lost earnings, . . . and medical and other 

expenses, but excludes punitive or exemplary damages 

and pain and suffering.

Id. § 77-38a-102(6). 

¶52 A trial court’s restitution award must rely on a sufficient 

evidentiary basis. See State v. Weeks, 2002 UT 98, ¶ 26, 61 P.3d 1000.

“Although an award of damages based only on speculation cannot 

be upheld, it is generally recognized that some degree of uncertainty 

in the evidence of damages will not suffice to relieve a defendant 

_____________________________________________________________

when it shrinks from its constitutional responsibility to answer the 

questions put before it. District courts see far more cases with many

more variations than our appellate courts. This provides them with 

unique insights into the questions presented. This court can consider 

those insights when they become part of the record. Without them, 

we lose an important window into what occurs below and our 

decisions will be poorer because of it.
STATE v. OGDEN

Opinion of the Court

22

from recompensing a wronged plaintiff.” Bastian v. King, 661 P.2d 

953, 956 (Utah 1983). “The amount of damages may be based upon 

approximations,” however the approximations must be “based upon 

reasonable assumptions or projections.” Atkin Wright & Miles v. 

Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985).

¶53 “[T]he determination of [a] restitution amount is by nature 

an inexact science,” and consequently “a reasonable estimate of the 

loss” may be the only evidence available. United States v. Osman, 853 

F.3d 1184, 1189 (11th Cir. 2017) (citation omitted) (internal quotation 

marks omitted). However, evidence of the loss should bear 

“sufficient indicia of reliability to support its probable accuracy.” Id. 

(citation omitted) (internal quotation marks omitted). “[B]allpark 

figures . . . and purely speculative calculations” constitute

“insufficient information” for a district court to rely on in awarding 

restitution. State v. Passwater, 350 P.3d 382, 385 (Mont. 2015) (citation 

omitted). Rather, anticipated future expenses should be “firmly 

established” in the record. See Lawrence v. State, 764 P.2d 318, 322 

(Alaska Ct. App. 1988).

¶54 We acknowledge that it is impossible to avoid some 

measure of uncertainty when a district court is asked to base an 

award on damages a victim will suffer in the future. However, to 

establish a sufficient evidentiary basis for a restitution award, a 

district court should require the State (or the victim, in those cases 

where the State decides not to appear) to demonstrate that the

expenses are necessary and that the amount needed to cover those 

expenses is firmly established in the record. In light of these 

clarifications, we express concern with aspects of the district court’s 

restitution award.

¶55 The Plan allocated a portion of the lifetime care costs for 

depression, anxiety, sleeping, and pain medications. Ogden argues 

that this allocation was speculative because Ms. Wainwright “was 

not a psychiatrist, had no medical diagnostic or prescribing ability, 

and had no underlying data or ‘careful assessment’ that [Victim] 

would need any of the specific medications recommended on the 

chart.” We agree with Ogden that her opinion lacked “underlying 

data or ‘careful assessment’” that Victim would actually need all the 

medication the Plan contemplated.

¶56 The expert best positioned to opine on the medications 

Victim would need—Dr. Corwin—neither recommended nor 

prescribed any medication for her. Dr. Corwin testified at the 

restitution hearing that to his knowledge, Victim was not taking any 

type of medication. Ms. Wainwright was not qualified to diagnose 
Cite as: 2018 UT 8

Opinion of the Court

23

psychological disorders or prescribe medication to treat them. She 

based her conclusion in part on her experience “in case managing 

[sexual abuse victims]” because “they need medication as they get 

older.” She explained that to inform her recommendation, she “went 

to the studies and the literature and there’s a couple of articles that 

[she] cited in [her] report that talk about . . . therapy for people who 

have suffered post-traumatic stress and child sex abuse. And they 

recommend[] . . . Zoloft, . . . Paxil or . . . Prozac as the most effective 

psychiatric treatment for clients who have suffered child sex abuse.” 

Additionally, Ms. Wainwright recommended anxiety medication 

because anxiety is “another common side effect for clients who have 

suffered child sex abuse,” and because Victim already exhibited 

“symptoms of depression, as she’s cutting herself . . . they’re all signs 

of some sort of anxiety.”

¶57 Speaking again of her experience with her clients, Ms. 

Wainwright explained that:

They all have sleep disorders. They have trouble 

sleeping. So I put in Ambien. And then the pain 

medications, because a lot of these clients, . . . probably 

over 80 percent of the clients that I manage, are on 

some sort of pain medications for the physical 

symptoms that have manifested as a result of the 

psychiatric condition.

The medications the Plan recommended “reflect [Ms. Wainwright’s] 

experience of the types and costs of medications that frequently help 

victims of sexual abuse,” and “the majority of [her clients] are on 

these medications.”

¶58 Leaving aside the question of whether Ms. Wainwright 

possessed the expertise to offer these opinions, her recommendations 

were based exclusively on her assessment of her other clients, not on 

an individual assessment of Victim’s specific needs. Although Victim

demonstrated clinically significant symptoms of depression and 

post-traumatic stress disorder, she was not diagnosed with anxiety, 

nor did she report trouble sleeping. Without a diagnosis and 

recommendation for a particular medication from an individual 

qualified to make that assessment, the inclusion of costs for those 

medications crosses the line into impermissible speculation. To 

establish a sufficient evidentiary basis for this portion of the 

restitution award, Victim would need to present credible evidence 

demonstrating her need for the medications.
STATE v. OGDEN

Opinion of the Court

24

¶59 The Plan also recommended inpatient and outpatient 

counseling. This included the cost of ten inpatient hospitalizations, 

ten intensive outpatient counseling programs, six courses of weekly 

therapy sessions, one course of Eye Movement Desensitization and 

Reprocessing (EMDR) treatment, and one neuropsychological 

evaluation. Ogden argues that this recommendation was “not based 

on [Victim’s] actual needs and amounts to nothing more than an 

unfounded and speculative assertion about what [Victim’s] needs 

might be.” (Emphasis omitted).

¶60 The Plan based part of its conclusion on Dr. Corwin’s 

recommendation that Victim receive six courses of weekly therapy 

sessions, each course lasting up to two years. In his forensic

evaluation, Dr. Corwin concluded that Victim would benefit from 

therapy because she “suffered significant psychological trauma 

caused by her father’s sexual abuse of her, the family disturbances 

associated with that sexual abuse including being harassed by her 

older brothers and living away from her family with various other 

families,” which culminated in the subsequent sexual abuse by S.G.

Dr. Corwin explained that “[e]ffective treatment helps diminish 

symptoms associated with lifelong increased emotional burdens and 

memories.” The district court did not abuse its discretion by 

including these costs in the complete restitution award.

¶61 But the Plan recommended more than what Dr. Corwin 

opined would be necessary. Instead, Ms. Wainwright relied on 

literature and her experience with other clients as a basis to include

other categories of psychological care in the Plan. Ms. Wainwright

explained:

[W]hen we do a life care plan, we’re kind of making 

assumptions and looking into a crystal ball a little 

bit. . . . I made assumptions based on the statistics that I 

read in several articles talking about the long term 

effects of child sex abuse and also in my experience . . . 

case managing clients with [a history of] child sex 

abuse.

¶62 Ms. Wainwright concluded it was “more likely than not” 

that Victim would need inpatient hospitalizations because her clients 

that have suffered from sexual abuse “end up in the hospital not just 

for psychiatric issues but for medical issues.” In the Plan, she stated 

that because Victim was not “in therapy at [the] time, and her 

behavior is evidence that she does not have the strategies in place to 

manage her symptoms, she will likely require multiple admissions 

throughout her lifetime.” At the hearing she explained that many of 
Cite as: 2018 UT 8

Opinion of the Court

25

her clients, “especially women, tend to have eating disorders” and 

“over fifty percent” of Ms. Wainwright’s clients “end up in the 

hospital because they’ve got metabolic dysfunction because they’re 

either bulimic or anorexic.” She explained that some of her clients 

are hospitalized once every four to six weeks, and other clients are 

hospitalized once or twice a year, and ultimately concluded that 

Victim would likely need ten inpatient hospitalizations.

¶63 In other words, Ms. Wainwright recommended that Victim 

participate in intensive outpatient programs because her other 

clients “do well with intensive outpatient programs.” She conceded 

there was “no guarantee” that Victim would need to participate in 

an intensive outpatient program, but concluded it was “more likely 

than not” that Victim would. However, when asked whether this 

projection was “somewhat speculative,” Ms. Wainwright responded, 

“Yes.” Ms. Wainwright allocated the cost of EMDR therapy because 

it is “a recommended and accepted treatment protocol for clients 

with PTSD.” Finally, she included the cost of a neuropsychological 

evaluation “to determine the effects and any improvements that are 

coming from treatment.”

¶64 Again leaving aside the question of Ms. Wainwright’s 

qualifications to offer that opinion, Ms. Wainwright’s 

recommendations appear to be based on speculation about what 

treatments Victim may benefit from based on her other clients’ 

treatment plans. See Bastian, 661 P.2d at 956. Leaving aside the 

therapy Dr. Corwin recommended, Ms. Wainwright provided no 

evidence that Victim needed the treatment outlined in her 

recommendations. In other words, record evidence supported the 

inclusion of costs related to the treatment Dr. Corwin recommended. 

But there is more than “some degree of uncertainty in the evidence” 

with respect to those costs flowing from Ms. Wainwright’s 

generalizations about what sexual abuse victims typically need. See 

id.

¶65 On remand, Victim may be able to justify an award of the 

items in Ms. Wainwright’s report. But to meet that burden, the State 

or Victim will need to present evidence of her individual need for 

inpatient hospitalizations, intensive outpatient programs, EMDR 

therapy, and a neuropsychological evaluation. And although we 

recognize that there will be some degree of uncertainty in predicting 

needs decades into the future, to combat some of this uncertainty, 

the district court should have before it an adequate foundation that 

Victim will likely need these treatments.
STATE v. OGDEN

Opinion of the Court

26

CONCLUSION

¶66 The CVRA requires that a district court include the losses 

that a defendant proximately causes in its complete restitution 

determination. On remand, we remind the district court to ensure 

that it rests its restitution calculation on non-speculative evidence of 

losses that Victim has incurred or will likely incur. We vacate the 

district court’s restitution orders and remand for further proceedings 

consistent with this opinion.