This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 8 UT 8

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH
, Appellee

,

v.

J ESSE R OGER O GDEN
, Appellant

.

No. 20150922 Filed February 2 7 , 2018

On Certification from the Court of Appeals

Second District

, Ogden

The Honorable Judge Joseph Bean

No. 131902263

Attorneys:

Sean D. Reyes, At t’y Gen., William M. Hains, Asst . Solic. Gen.,

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

Samuel P. Newton

, Kalispell, MT , for appellant

J USTICE P EARCE authored the opinion of the Court, in which

C HIEF J USTICE D URRANT
, A SSOCIATE C HIEF J USTICE L EE
, J UDGE B ATES
, and J UDGE M C K ELVIE joined.

Having recused himself

, J USTICE H IMONAS does not participate
herein; D ISTRICT C OURT J UDGE M ATTHEW D. B ATES sat.

Due to her retirement, J USTICE D URHAM did not participate herein;

D ISTRICT C OURT J UDGE R ICHARD D. M C K ELVIE sat.

J USTICE P ETERSEN became a member of the Court on

November 17 , 2017, afte r oral argument in this matter, and accordingly did not participate.

J USTICE P EARCE
, opinion of the Court :S TATE v. O GDEN

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 ment al health treatment for the remainder of her

life . The district court entered order s 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 speculat ion about expenses she would incur in the future.

¶2 We clarify the standard the Crime Victims Re stitution Act requires the district court to employ to determine whether a

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

w e remand to permit the distri ct court to apply that standard

. Because the issue will likely arise again on reman d, w e 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 famil y home

. Victim’s brothers blamed and

os tracized Victim for Ogden’s separation from the family. To protect her from her brothers’ harassment, Mother sent Victim to live with

several other famil ies.

¶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 self

injurious 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 s he stayed with

him. In 2012, the Division of Child and Family Services (DCFS)C ite as: 2018 UT 8

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. Vict im 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 fu ture 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 Stat e later amended the charges to two

coun ts 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 pecun iary damage as a result of the sexual abuse committed against her” by Ogden. 1

Victim supported her motion with a forensic e valuation from Dr.

David Corwin and a l i fe care p lan from Sheryl Wainwright

. Both Dr. Corwin and Ms. Wainwright testified at the re st itution 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[m ent] 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 t his

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.S TATE v. O GDEN

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 las t 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 re quire 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 a nd 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 proble ms like increased

risks of heart disease not associated with other risk factors like diabetes, smoking and high blood pressu re.”

¶9 Dr. Corwin recommended that Victim “receive a course of Trauma Focused Cognitive Behavior Treatment (TF

- CBT) within the

near f uture 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 week ly 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 P lan)

. 2 To craft the

P lan, Ms. Wain w right 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 stan dards 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 h ave chronic

health care needs.”C ite as: 2018 UT 8

Opinion of the Court

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

or interview Victim or Mother.

¶11 Ms. Wai nwright 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 relat ionships, 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 t o manage thei r 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 hos pitalized 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

recomm ended 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 f or work and her personal life.”

2 . Medications

¶14 The Plan also forecast ed the lifetime cost of medications to

combat anxiety, sleeping disorders , and pain

. The Plan explained

that even though Victim was not taking any medication s , “medication management is a vital part of treatment for anxiety, depression, and PTSD.” The Plan included the cost of variousS TATE v. O GDEN

Opinion of the Court

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

most effective medications in the treatment of PTSD associ ated 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, irritabl e bowel,

difficult y 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 Hearing s

¶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

sitti ng 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 couns el]” because “[t]hey have

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

excused the State

. T he 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,

suici dal acts, self

- harm acts,

. . . diminished learning ability and later decreased vocational attainment, increased difficulty in interpersonal relationships and in intima te 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 tr auma is that they need to have the availability of periods of tr eatment 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 fromC ite as: 2018 UT 8

Opinion of the Court

7 the severe stress that she has exp erienced.” Dr. Corwin concluded

that Victim “is a severely affec ted 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 s he 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 ab use d 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 a lso 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 tha t “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 a lso testified at the hearing. She explained that she is not qualified to diagnose conditions or prescribe

medications. She based her estimat es in the Plan on “literatu re, [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. Bu t

. . . I made assumptions based o n 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, t he district court made

several find ings 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 laterS TATE v. O GDEN

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 [O gden], 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 opi ned 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 misun derstanding that the complete restitution order would become a n 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 ab out 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 Og den’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 cou rt

- 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 e ssentially be a lien on the home, wh atever that final judgment is.”

The Restitution Order

¶23 As noted above, t he 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 benefic iaries 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 [Vic tim].” Ogden’s court

- ordered restitution was $127,089.60, plus one

- half of the equity in the ho me, not including Ogden’s homestead exemption, plus Victim’s portion of the proceeds from the life

insurance policies.C ite as: 2018 UT 8

Opinion of the Court

9 ISSUES AND STANDARD S OF REVIEW

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

conclude that the Crime Victims Restitution A ct required something less than proximate causation to establish that Ogden caused Victim’s damages. We review questions of statutory interpretation

for correctness. Nich ols v. Jacobsen Constr. Co.

, 2016 UT 19, ¶ 13, 374

P.3d 3. 3

¶25 Although we vacate the di strict 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

unconstitu tional 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 argumen t 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 sho uld prevail on appeal.” U TAH R. A PP

. 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 ap propriate.” 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.S TATE v. O GDEN

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

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

ANALYSIS

I. T he 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

. . . . ” U TAH C ODE § 77

- 38a

- 302(1). The CVRA requires the district court to calculate two t ypes 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 det ermines 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] a n order of complete restitution

. . . on the civil judgment docket .

. . . ” 5 Id

. § 77

- 38a

- 401 (1)

.

_____________________________________________________________

4 Crime Victims Restitution Act, U TAH C ODE §§ 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 res titution .

. . may not be introduced in any [related] civil action

. . . . However, the court shall credit any r estitution [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 m atters that may be out there?” The court

further stated that “what happens here doesn’t have any effect on what has to be pr oven in [the] civil action,” because “there are no (continued .

. .)C ite as: 2018 UT 8

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 o n the defendant to set the amount of court

- ordered restitution, including the defendant’s “financial resources,” “other obligations,” “the rehabilitative ef fect,” 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.” I d. § 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 distr ict 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 : t he L egislature could revisit the statute or the Supreme Court Advisory Committee on the Rules of Criminal Procedur e 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.S TATE v. O GDEN

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.” (q uoting 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 tria l court was required to employ ‘[a] modified “ but for ” test.’” (alteration in original) ( q uoting 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 aw ard 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 proxi mate 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

— i ncluding proximate cause

— w ould support

the restitution award the court entered.

¶31 To determ ine what causal connection the L egislature 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 th e 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. M iller , 2008

UT 6 1, ¶ 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 h as resulted in pecuniary damages

. . . . ” U TAH C ODE § 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 U TAH C ODE § 77

- 38a

- 401(2)

.C ite as: 2018 UT 8

Opinion of the Court

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

causation standard the L egislature intended. 7

¶33 First, the phrase “result ed 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

, M ERRIAM

- W EBSTER
, https://www.merriam

- w ebster.com/dictionary /result (last visited Feb. 7, 20 18) . 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). Se e id.

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

intended. “ Caused by ” could refer to a but

- for cause or a proximate

cause

. U TAH C ODE § 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 L egislature intended to apply to a provision of the Governmental Immunity Act (G IA). Id. ¶ 2. The GIA waives immunity for “any injury caused by

. . . a defective, unsafe, or dangerous c ondition of any highway [or] .

. . culvert,” but “ reinstated [ immunity ] for injuries that ‘ arise [ ]
out of, in con nection with, or result[ ] from’ a l atent de fective

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

from the ‘ construction, repair, or opera tion of flood or storm systems.’ ” Id. ¶¶ 2, 36 (alterations in original) (omissions in original) (citations omitted).

¶36 We ultimately c oncluded 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 invocati on 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 d iscussed only briefly and generally, and Ogden never raised the Liability Reform Act at the restitution hearing.S TATE v. O GDEN

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, i n 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 s tructure, we conclude that the

L egislature 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 distres s claim); Reynolds v.

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

. . . may

. . . be recovered only to the extent that [the plaintiff] prov es they were a proximate result’ of the nonconsensual touching. ” (alteration in original) (second omiss ion in original) (citation omitted)). The most compelling evidence springs from the provision that converts a complete restitution order into an enforceable civil judgment. See U TAH C ODE § 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 det ermined 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 34 6. 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 misrepresentatio ns actually

cause. ” Id. at 344

– 45.C ite 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 concl ude that th e L egislature designed a system with dual tracks to a civil judgment with each track offering the victim a different

causation sta ndard. It is unlikely that the L egislature 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

L egislature would have implemented such a system without explicitly expressing that intent in the statute. In the absence of suc h 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 damag es.” “Pecuniary damages” are “ all demonstrable economic injury, whether or not yet incurred, which a person could re cover in a civil action

. . . .” Id

. § 77

- 38 a

- 102(6) (2015)

. 9 This also suggests that the Legislature did not intend to create a
separate tr ack that would allow a victim to obtain a subset 10 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 L egislature’s use of the

term “a ll” in the phrase “all losses caused by defendant” requires the imposition of but

- for causation. (Q uoting 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 L egislature amended the CVRA in 2016 to change the definition of “pecuniary damages” from “all demonstrable economic injury, whether or not yet incurre d, 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 r ecover in a civil action

. . . , ” i d.
§ 77

- 38a

- 102(6) (emphasis added). This change does not cause us to

dou bt 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. U TAH C ODE § 77

- 38a

- 102(6).S TATE v. O GDEN

Opinion of the Court

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

the L egislature intended proximate or but

- for causation.

¶42 Second, t he 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. Rat her, we were asked to examine if the CVRA required a district court to order both complete and court

ordered restitution. Id. ¶ 19. We concluded that the CVRA requires a district court to “determine” complete restitution, but gives it

discretion with regar d to the imposition of court

- ordered restitution.

Id. ¶ 23. Along the analytical path, we remarked on a numbe r of the difficulties a sentencing court would face in trying to resolve issues
of causation and losses, most notably a lack of opportunity for

dis covery 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 w as 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 co mplete restitution

calculation into an order that the court clerk enters on the civil judgment docket . We acknowledged “ that ambiguity infects th e restitution statute’s grant of discretion to trial court s .” 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. (emphase s 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 al though 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,” i d.

, we then appear to go out of our way to (continued .

. .)C ite as: 2018 UT 8

Opinion of the Court

17 ¶43 Third, t he 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, r eading statutory langua ge 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 i ntent . A ttempts to read statutory language in

the light of a perceived purpose (or purposes) can di stort our view of the plain language. This is, in part, because the statutory text already

reflect s the balance the L egislature has struc k 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 L egislature may have w eighed the purposes differently and concluded that proximate causation best balanced compensation and deterrence with the abil ity for

rehabilitation. Or the L egislature may have been motivated by a policy we did not manage to divine when we penned Laycock

. And,
in this case, resort ing to the CVRA’s perceived purposes does n ot help us understand what the L egislature intended.

¶45 Fourth, t he State argues that proximate cause would be inappropriate because we have observed that “the foreseeability aspect of prox imate causation is frequently relaxed in the case of

intentio nal 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 asp ect .

. . is frequently relaxed” should inform the district court’s application of proximate cause principles on remand , not our decision on

_____________________________________________________________ limit our analysis to a n award of court

- ordered restitution, s ee, 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.S TATE v. O GDEN

Opinion of the Court

18 whether to apply a proximate cause standard at the outset

. I d. (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 & Ca s ualty Co. v. Western Casualty & Surety Co. , we considered a policy that excluded coverage for “ bodily injury or property dam ages arising out of any premises, other than an insured premises, owned, rented, or controlled by any insured .”

577 P.2d 96 1, 962 (Utah 1978). We reasoned that “[a] s used in a liability insurance policy, the words ‘arising out of’ are very broad, general a nd 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

I

ns. 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 in sured, 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 conv inced 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

ne gligent 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 fo reseeability of Victim’s subsequent abuse, other than

to acknowledge that Ogden has a good faith argument that it was
not foreseeable. Thus, w e 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

prope r 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 hadC ite 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 U TAH C ODE § 77

- 38 a

- 302(1).

II. On Remand, the District Court Should

Ensure That the Restitution Award Is Not

Based on Speculati ve Evidence

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

and remand

, Ogden presents an other 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 in clude:

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; an d 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 t o 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 e quity 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 condit ions 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.

An d he relies on the court of appeals’ decision in State v. Schweitzer

, where the court held that the restitution statute “does not authorize (continued .

. .)S TATE v. O GDEN

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 resti tution 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

L egislature enacted Utah Code section 77

- 38a

- 601, which provides that during a criminal proceeding, a prosecutor may “enter a

t emporary 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 unav ailable 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 t he 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, a t 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 arg ument, that this court is the “higher powers” the district court referenced, w e 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 cour t, and our judicial system, of val uable insight (continued .

. .)C ite 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 s peculative 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. U TAH C ODE § 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 h armed, 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 S tate v. Weeks , 2 002 UT 98, ¶ 26, 61 P.3d 1000.

“ A ltho ugh 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

un ique insights into the questions presented. This court can consider those insights when they become part of the record. Without them,

we lose a n important window into what occurs below and our decisions will be poorer because of it.S TATE v. O GDEN

Opinion of the Court

22 from reco mpensing 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.

Mou ntain 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 o mitted). “[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, anticipate d 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 d amages a v i ctim 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 nee ded 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 th e lifetime care costs for depression, anxiety, sleeping, and pain medications . Ogden argues that this allocation was speculative because Ms. Wainwright “was not a psych iatrist, 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 Og d en that her opinion lacked “underlying

data o r ‘ 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 tes tified at the restitution hearing that to his knowledge, Victim was not taking any type of medication. Ms. Wainwright was not qualified to diagnoseC ite 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 exper ience “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 [he r] report that talk about

. . . therapy for people who have suffered post

- traumatic stress and child sex abuse. And they

recommend []

. . . Zolof t,

. . . 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 wh o have suffered child sex abuse,” and because Victim already exhibited “symptoms of depression, as she’s cutting herself

. . . they’r e 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, becaus e a lot of these c lients,

. . . 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 resul t 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 clie nts] are on

these medications.”

¶58 Leaving aside the question of whether Ms. Wainwright possessed the expertise to offer these o pinions, 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

q ualified to make that assessment, the inclusion of costs for those

medication s 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 evi den ce demonstrating her need for the medications.S TATE v. O GDEN

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 specula tive 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 b y 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. W ainwright explained:

[W]hen we do a life care plan, we’re kind of making assumptions and looking into a c rystal 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 s he e xplained that many ofC ite 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 exp lained 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 intens ive 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 outpatie nt 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 recommend ed 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 th at 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 D r. Corwin recommended, Ms. Wainwright provided no

evidence that Victim needed the treatment outlined in her

re commendations

. 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 uncert ainty in the evidence ” with respect to those costs flowing from Ms. Wain w right ’s generalization s 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. Wain w right’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 un c ertainty,

the district court should have before it an adequate foundation that Victim will likely need these trea tments

.S TATE v. O GDEN

Opinion of the Court

26 CONCLUSION

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

that a defendant proximately cause s in its complete restitution

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

that it rests its restitution calculation on non

- specu la tive evidence of losses that Victim has incurred or will likely incur. We vacate the

district court’s restitution order s and remand for further proceedings

consistent with t his opinion.