2016 UT App 18

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JONATHAN A. RUIZ,

Appellant.

Opinion

No. 20140159-CA

Filed January 28, 2016

Fourth District Court, Provo Department

The Honorable Samuel D. McVey

No. 101402012

Neil D. Skousen, Attorney for Appellant

Sean D. Reyes and Mark C. Field, Attorneys

for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which 

JUSTICE JOHN A. PEARCE concurred. JUDGE MICHELE M.

CHRISTIANSEN concurred in part and dissented in part, with 

opinion.1

BENCH, Senior Judge:

¶1 Jonathan A. Ruiz appeals the trial court’s order that he 

pay restitution in the amount of $42,475 in connection with his 

 

1. Senior Judge Russell W. Bench sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6). 

Justice John A. Pearce began his work on this case as a member 

of the Utah Court of Appeals. He became a member of the Utah 

Supreme Court thereafter and completed his work on the case 

sitting by special assignment as authorized by law. See generally 

Utah R. Jud. Admin. 3-108(3).
State v. Ruiz

20140159-CA 2 2016 UT App 18

convictions for attempted unlawful sexual activity with a minor

and its order denying his motion to disqualify the trial judge. We 

affirm both orders.

BACKGROUND

¶2 We previously considered this matter in State v. Ruiz (Ruiz 

I), 2013 UT App 166, 305 P.3d 223. The victim in this case 

(Victim) was admitted to La Europa, a residential treatment 

facility, because she expressed suicidal thoughts following 

her sexual encounters with Ruiz. See id. ¶ 2. But even before she 

met Ruiz, Victim “had a history of depression, anxiety, selfharm, substance abuse, lying, arguing, stealing, and sexually 

acting out.” Id. ¶ 3 (internal quotation marks omitted). Thus, 

her therapy at La Europa addressed a number of issues, 

including “trauma from the incident with Ruiz,” “depression, 

hypersexuality, family issues, and substance abuse.” Id. Victim 

remained at La Europa for nine months at a cost of $51,000. Id.

¶ 4.

¶3 The trial court determined that complete restitution 

included the entire cost of Victim’s stay at La Europa because 

“Ruiz’s actions were the ‘but for’ cause of Victim’s enrollment in 

La Europa.” Id. ¶ 11. However, when this decision was appealed

in Ruiz I, we concluded that the trial court had “failed to explain 

the causal nexus between the incident and the nine months of 

intensive inpatient therapy Victim underwent,” which included 

family therapy and substance abuse treatment, or “to examine 

how Victim’s preexisting conditions impacted her need for that 

level of therapy.” Id. ¶ 11 & n.2. Thus, we held that “the trial 

court’s findings in support of its determination of complete 

restitution were insufficient” and remanded the case so the trial 

court could “make more detailed findings in support of its 

determination of complete restitution.” Id. ¶ 11.
State v. Ruiz

20140159-CA 3 2016 UT App 18

¶4 On remand, the trial court made more detailed findings 

regarding the impact of Ruiz’s actions on Victim. The trial court 

found that prior to the incident with Ruiz, Victim “had been 

undergoing outpatient counseling” and was “experiencing 

improvement in her condition before the crime without inpatient 

treatment.” Following the encounter, Victim “regressed to being 

passively suicidal,” which “aggravated [her] preexisting mental 

conditions . . . to the point outpatient care was inadequate.”

¶5 The trial court also found that the monthly tuition paid to 

La Europa was fixed, regardless of the issues addressed. Thus,

although “the victim received treatment in La Europa to replace 

the outpatient treatment previously received for her preexisting 

conditions . . . , she was not charged extra for that treatment,” 

because she “would have paid the same monthly tuition if her 

only issue was recovery from the trauma suffered at the hands of 

[Ruiz].” The trial court found that the entire nine months of 

residential treatment was necessary to address the trauma 

Victim suffered and that even at the time of discharge, 

continued inpatient therapy was recommended specifically with 

respect to Victim’s “continuing trauma issues from the crime.” 

Nevertheless, the trial court deducted the estimated per-hour 

cost (based on the per-hour rate Victim was later charged for 

outpatient therapy) of a number of Victim’s therapy sessions at 

La Europa that the trial court determined were devoted 

exclusively to unrelated preexisting conditions and reduced the 

total amount of complete restitution to $42,475.

¶6 After the trial court issued its order, Ruiz filed a motion 

under rule 29 of the Utah Rules of Criminal Procedure to 

disqualify the trial judge. Ruiz asserted that the judge “showed 

bias against [Ruiz] by inappropriately denying defense counsel 

the right to cross-examine the victim.” He also asserted that by 

suggesting that counsel’s cross-examination of Victim would 

“traumatize” her, the judge “personally attack[ed] defense 

counsel’s integrity as an officer of the court.” Furthermore, Ruiz 
State v. Ruiz

20140159-CA 4 2016 UT App 18

argued that the judge indicated his bias against Ruiz by 

characterizing Ruiz’s actions toward Victim as “rape”; by 

generally minimizing the impact of Victim’s preexisting 

conditions, in particular the impact of alleged physical and 

emotional abuse committed by her father; by expressing his 

agreement with the dissenting opinion rather than the lead 

opinion in Ruiz I; and by indicating his intent to order the 

maximum amount of restitution possible.

¶7 The trial judge made a threshold determination not to 

grant Ruiz’s motion and referred the motion to the presiding 

judge. In the referral order, the trial judge explained the reasons 

he believed the motion to disqualify should be denied.

¶8 The presiding judge concluded that the trial judge’s 

refusal to allow Ruiz’s counsel to cross-examine Victim showed 

only “a disagreement regarding the extent of the victim’s duties 

to provide evidence at the hearing” and failed to demonstrate 

“either actual or apparent bias or prejudice against [Ruiz].” The 

presiding judge further found that statements the trial judge

made to Ruiz’s counsel did not attack counsel’s integrity and, at 

best, “only commented on the unintended effects of counsel’s 

examination of the victim.” The presiding judge explained that 

the trial judge’s use of the term “rape” was clearly “used only to 

reference the victim’s therapists’ use of the term” and did not 

indicate the trial judge’s belief that Ruiz was guilty of rape rather 

than the crime he was actually convicted of—attempted 

unlawful sexual activity with a minor. The presiding judge also

concluded that the trial judge’s discussion of Victim’s 

preexisting conditions revealed only “a disagreement with 

counsel regarding the cause of the victim’s need for therapy,” 

not any “actual or apparent bias against [Ruiz].” Finally, the 

presiding judge rejected Ruiz’s assertion that the trial judge 

“begrudged having to follow the directions received from the 

court of appeals on remand,” observing that the trial judge 

“clearly stated [his] intention to exercise [his] responsibilities 
State v. Ruiz

20140159-CA 5 2016 UT App 18

‘within the bounds of what the appellate courts’” had directed. 

Accordingly, the presiding judge denied Ruiz’s motion to 

disqualify the trial judge.

ISSUES AND STANDARDS OF REVIEW

¶9 Ruiz first argues that the trial court exceeded its 

discretion in fixing the amount of restitution. “[I]n the case of 

restitution, a reviewing court will not disturb a district court’s 

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.

¶10 Ruiz further argues that the trial judge erred in failing to 

recuse himself and by commenting on Ruiz’s motion to 

disqualify when referring the motion to the presiding judge.

“Issues of recusal present questions of law that we review for 

correctness.” State v. Wareham, 2006 UT App 327, ¶ 13, 143 P.3d 

302.

ANALYSIS

I. Restitution Order

¶11 Ruiz first asserts that the trial court exceeded its 

discretion by ordering that he pay complete restitution in the 

amount of $42,475.2 In doing so, he argues that the trial court 

 

2. Ruiz refers to a number of perceived errors in the course of his 

argument, most of which are mentioned only in passing. For 

example, Ruiz suggests that the court improperly denied him the 

opportunity to question Victim; that the State improperly failed 

to present expert testimony in support of its assertion that there 

was a causal nexus between the incident with Ruiz and all nine 

(continued...)
State v. Ruiz

20140159-CA 6 2016 UT App 18

failed to follow this court’s instructions on remand and that the 

trial court did not properly employ the modified but-for test for 

determining the relationship between his crime and Victim’s 

damages.

¶12 In order to determine complete restitution, the trial court 

was required to employ “[a] modified ‘but for’ test.” Ruiz I, 2013 

UT App 166, ¶ 8, 305 P.3d 223 (alteration in original) (citation 

and internal quotation marks omitted). This test “requires (1) 

that the damages would not have occurred but for the conduct 

underlying the [defendant’s] . . . conviction and (2) that the 

causal nexus between the [criminal] conduct and the loss . . . not 

[be] too attenuated (either factually or temporally).” Id.

(alterations in original) (citation and internal quotation marks 

omitted). The trial court’s task was made particularly 

complicated in this case because Victim’s inpatient therapy, 

which was initially necessitated by Ruiz’s actions, addressed a 

number of preexisting conditions which had the potential to 

prolong Victim’s stay at the inpatient facility.

¶13 In its original order, which we considered in Ruiz I, the 

trial court ordered that Ruiz pay for the entire cost of Victim’s 

 

(...continued)

months of Victim’s inpatient therapy; that the trial court’s 

calculation of court-ordered restitution was inaccurate; and that 

the trial court’s reference to the incident as “rape,” despite the 

fact that Ruiz pled guilty only to attempted unlawful sexual 

activity with a minor, suggests that the court held Ruiz 

accountable for a higher crime than that for which he was 

convicted. We interpret these arguments merely as support for 

Ruiz’s argument that the trial court exceeded its discretion. To 

the extent Ruiz may have intended to argue them as 

independent grounds for reversal, we determine that they are 

inadequately briefed. See Utah R. App. P. 24(a)(9).
State v. Ruiz

20140159-CA 7 2016 UT App 18

inpatient therapy based on its determination that “Ruiz’s actions 

were the ‘but for’ cause of Victim’s enrollment in La Europa.” Id.

¶ 11. On appeal, we determined that this finding was insufficient 

to support a determination that Victim’s entire nine-month stay 

at La Europa was necessitated by Ruiz’s actions. Id. Accordingly, 

we remanded “for the trial court to make more detailed findings 

in support of its determination of complete restitution.” Id.

¶14 On remand, there appeared to be some confusion as to 

whether our opinion in Ruiz I required the trial court to reduce 

the amount of restitution or whether the trial court could 

reinstate its previous order if it made additional findings. On 

remand—and now, on appeal—Ruiz argued, based on our 

opinion, that he could be held responsible for no more than “10 

to 20 percent of the cost of therapy,” since Victim’s trauma was 

only one of five different areas to be addressed in the course of 

inpatient therapy. The State, on the other hand, interpreted our 

opinion as permitting the trial court to uphold the original

complete-restitution order so long as it supported the order with 

additional findings showing the causal nexus between Ruiz’s 

actions and Victim’s continued inpatient therapy. Victim’s 

attorney agreed, arguing that our opinion was not intended “to 

obviate the principle that you take your victim as you find her.” 

The trial court expressed skepticism about this position: “Well, I 

don’t know. I think they kind of did.”

¶15 In its remand order, the trial court expressed 

dissatisfaction with our opinion in Ruiz I, but ultimately 

concluded that our opinion required it to reduce the restitution 

order based on Victim’s preexisting conditions. The trial court 

explained,

An allegory [to this case] would be where a 

[conviction for driving under the influence] with 

injury leads to a knee operation but the heavy 

victim has to be put through a professional weight
State v. Ruiz

20140159-CA 8 2016 UT App 18

reduction program before aftercare therapy to be 

assured of successful knee surgery. The Court 

takes the appellate decision in the present matter to 

mean in a criminal restitution context the injured 

party could not recover for addressing the 

preexisting weight problem even though it . . . had 

to be resolved to assure a successful knee 

operation.

This assessment does not accurately interpret our opinion. We 

do not disagree with the trial court that there could be a 

causal nexus between the DUI injury and the weight-reduction 

program in the scenario described above. However, if that 

same victim had a preexisting shoulder injury that was not 

exacerbated by the accident and was not related to the success of 

the knee surgery, the DUI defendant could not be required to 

pay extra costs associated with the shoulder surgery just because 

the victim decided to receive the surgery while he was in the 

hospital for the knee surgery.

¶16 When we considered the trial court’s original restitution 

order in Ruiz I, some of the preexisting conditions in this case, 

such as Victim’s substance abuse and her family issues, looked 

much more like the shoulder surgery than the weight-reduction 

program. Without the benefit of detailed findings in the trial 

court’s original restitution order, we were left to speculate as to 

whether Victim stayed at La Europa for nine months because it 

took that long to address the trauma or because the treatment of 

unrelated preexisting conditions prolonged Victim’s stay.

¶17 But while the majority opinion expressed skepticism 

about whether Victim would have needed nine months of 

inpatient therapy had the therapy addressed only issues caused 

or exacerbated by Ruiz, Ruiz I, 2013 UT App 166, ¶ 11 & n.2, 305 

P.3d 223, its ultimate concern was with the lack of findings in 

support of that conclusion; the trial court’s original order found 
State v. Ruiz

20140159-CA 9 2016 UT App 18

only that Victim’s initial enrollment in La Europa was triggered 

by her encounter with Ruiz, not that nine months of inpatient 

therapy was needed to address the trauma. In light of the trial 

court’s additional detailed findings on remand, we cannot say 

that the trial court exceeded its discretion in calculating complete 

restitution.

¶18 The trial court’s findings in its order on remand 

appropriately addressed “the extent to which the therapy at La 

Europa was necessitated by preexisting conditions that were 

neither caused nor exacerbated by Ruiz’s actions.” See id. ¶ 11.

The court concluded that although the preexisting conditions 

were addressed in the course of Victim’s inpatient therapy, those 

conditions neither necessitated her enrollment at La Europa nor 

prolonged her stay. Rather, Victim stayed at La Europa for nine 

months “because it took that long to start making progress on

the trauma defendant caused.” Furthermore, in addressing 

Victim’s therapy in detail, the trial court found that Victim’s 

trauma was continually addressed throughout her stay at La 

Europa and affected her need for therapy on other issues, even 

those that initially appeared to be unrelated to the trauma. For 

example, the court found that prior to the crime, Victim had 

been “doing better in outpatient individual and family 

therapy . . . , was not drinking or smoking and was trying to 

adjust” but that her problems escalated following her encounter

with Ruiz. The court also found that “part of the family therapy 

was necessary for the parents and victim to learn how to handle 

blame for the crime.” These findings are sufficient to support the 

trial court’s determination that Victim’s entire stay at La Europa 

was necessitated by Ruiz’s actions and was not unnecessarily 

prolonged by unrelated preexisting conditions.3 Thus, the trial 

 

3. We agree with the dissent that the trial court’s findings on 

remand would have been sufficient to support a decision 

reinstating the trial court’s original complete restitution order 

(continued...)
State v. Ruiz

20140159-CA 10 2016 UT App 18

court’s calculation of complete restitution in the amount of 

$42,475, which included a deduction for the estimated per-hour 

cost of a number of sessions that focused only on preexisting 

conditions, was not an abuse of the court’s discretion.

II. Motion to Disqualify

¶19 Ruiz also argues that the trial judge erred in denying 

Ruiz’s motion to disqualify him under rule 29 of the Utah Rules 

of Criminal Procedure and by making inappropriate defensive 

commentary in his order referring the rule 29 motion to the 

presiding judge. See Utah R. Crim. P. 29 (governing motions to 

disqualify a judge in criminal cases). Our supreme court has held 

that a judge certifying for review a motion to disqualify should 

not include “argument or comment on the necessity for 

disqualification.” Young v. Patterson, 922 P.2d 1280, 1281 (Utah 

1996).4

¶20 While we agree with Ruiz that the trial judge’s 

commentary was inappropriate, Ruiz has failed to demonstrate 

that he suffered any harm as a result. Cf. Poulsen v. Frear, 946 

P.2d 738, 741–42 (Utah Ct. App. 1997) (holding that where the 

 

(...continued)

and that the trial court would not have exceeded its discretion by 

doing so. Infra ¶¶ 24–25. However, because the question of 

whether the trial court erred by not reinstating its original order 

is not before us, we address only Ruiz’s argument that the trial 

court’s restitution order was excessive.

4. Although Young v. Patterson, 922 P.2d 1280 (Utah 1996), 

addressed motions to disqualify under rule 63(b) of the Utah 

Rules of Civil Procedure, we assume without deciding that this 

rule applies equally to referral of a rule 29 motion under the 

Utah Rules of Criminal Procedure. Compare Utah R. Civ. P. 63(b), 

with Utah R. Crim. P. 29.
State v. Ruiz

20140159-CA 11 2016 UT App 18

appellant’s affidavit in support of a rule 63(b) motion was 

insufficient as a matter of law, any improper comments in the 

referral order were harmless). By the time Ruiz filed his motion 

to disqualify, the trial judge had already issued the restitution 

order. Ruiz’s motion requested only that the trial judge “be 

recused or disqualified from the . . . case”; it did not suggest that 

disqualification should result in rehearing on the restitution 

issue or otherwise seek reconsideration of restitution. Thus, even 

if Ruiz had succeeded in disqualifying the trial judge, it would 

not have altered the restitution order, and Ruiz has not 

otherwise suggested that he suffered harm as a result of the trial

judge’s comments.

¶21 Furthermore, we agree with the presiding judge that none 

of the trial court’s statements identified by Ruiz in his rule 29 

motion indicate actual or apparent bias against Ruiz. See supra

¶ 8. Therefore, the trial judge did not err in failing to recuse 

himself.

CONCLUSION

¶22 On remand, the trial court made sufficient findings in 

support of its restitution order and did not exceed its discretion 

in ordering Ruiz to pay $42,475 in restitution. Furthermore, the 

trial court did not err in denying Ruiz’s motion to disqualify,

and to the extent that comments made by the trial judge in the 

referral order were improper, they were harmless. Accordingly, 

we affirm both the restitution order and the denial of Ruiz’s 

motion to disqualify.

CHRISTIANSEN, Judge (concurring in part and dissenting in 

part):

¶23 I concur in Part II of the majority opinion regarding Ruiz’s 

motion to disqualify. However, I respectfully dissent from Part I, 
State v. Ruiz

20140159-CA 12 2016 UT App 18

which addresses the trial court’s calculation of complete 

restitution. Unlike the majority, I would conclude that the trial 

court abused its discretion when it deducted the estimated perhour cost of several of Victim’s therapy sessions from the

complete restitution. In my opinion, given the evidence that was 

introduced at the restitution hearing and the trial court’s 

extensive findings regarding the required inpatient therapy 

necessitated by Ruiz’s criminal actions, the trial court should 

have retained the original complete restitution order.

¶24 As the majority opinion here acknowledges, the Ruiz I

majority’s “ultimate concern” was with the lack of findings in 

support of the trial court’s conclusion that Victim needed nine 

months of inpatient therapy to address those issues caused or 

exacerbated by Ruiz’s criminal actions. See supra ¶ 17. Thus, on 

remand, the trial court was instructed to address “the extent to 

which the therapy at La Europa was necessitated by preexisting 

conditions that were neither caused nor exacerbated by Ruiz’s 

actions.” Ruiz I, 2013 UT App 166, ¶ 11, 305 P.3d 223. However, 

nothing in Ruiz I limited the trial court’s ability to reinstate its 

previous order, and the trial court would have acted within its 

discretion to do so and award the full amount of Victim’s 

inpatient therapy, i.e., $51,000, as long as that amount was 

supported by detailed factual findings. See id. ¶¶ 11, 14.

¶25 On remand, the trial court concluded that the tuition at La 

Europa “was reasonable for all services rendered,” and it had 

“no difficulty in finding . . . [that Victim] would not have had to 

go to La Europa but for the actions of [Ruiz].” The court further 

noted that Victim stayed at La Europa for nine months “because 

it took that long to start making progress on the trauma [Ruiz]

caused.” Moreover, the court observed that “[a] crime as in this 

case would certainly have some impact on and exacerbate 

mental conditions and aberrant behavior preceding the offense, 

contributing to a need for the benefits arising from nine months 

of residential treatment.” In addition, the trial court noted that 
State v. Ruiz

20140159-CA 13 2016 UT App 18

while certain individual therapy sessions did not “directly 

address[] the trauma” caused by Ruiz, the “staff [at La Europa] 

appeared to think they had to work on the other [preexisting] 

issues to address the trauma” caused by Ruiz. Thus, the trial 

court apparently found that all of Victim’s inpatient therapy, 

which occurred after Ruiz’s crime, was causally related to Ruiz’s 

commission of the crime. It makes no sense, then, for the trial 

court to deduct any estimated per-hour cost of outpatient 

treatment from Victim’s restitution award, and the trial court 

seemingly did so based solely on its misreading of the holding in 

Ruiz I.

¶26 I believe that the trial court should have, given its 

findings on remand, reinstated its previous order requiring Ruiz 

to pay the entire cost of Victim’s inpatient therapy.5 See, e.g., Rich 

v. State, 890 N.E.2d 44, 50 (Ind. Ct. App. 2008) (“The purpose 

behind an order of restitution is to impress upon the criminal 

defendant the magnitude of the loss he has caused and to defray 

costs to the victim caused by the offense.” (citation and internal 

quotation marks omitted)). This is especially true given that the 

trial court found that Victim “was not charged extra for that 

treatment,” that “[t]he residential tuition was the same whether 

her treatment was for a single symptom or more than one,” and 

that she “would have paid the same monthly tuition if her only 

 

5. In evaluating Ruiz’s argument that the trial court exceeded its 

discretion by ordering complete restitution in the amount of 

$42,475, see supra ¶ 11, I do not think that we are required to 

conclude only that the restitution ordered was either too high (as 

Ruiz contends) or that the award was correct (as determined by 

the majority). Namely, by challenging the trial court’s restitution 

order on appeal, Ruiz opened the door for this court to fully 

examine that restitution award. The State did not also need to 

cross-appeal for us to reach this issue.
State v. Ruiz

20140159-CA 14 2016 UT App 18

issue was recovery from the trauma suffered at the hands of 

[Ruiz].”6

¶27 Moreover, in my view, Victim’s mental health conditions 

cannot be fairly compared to the majority opinion’s knee-andshoulder example. See supra ¶ 15. In that example, the victim’s 

preexisting shoulder injury was not exacerbated by the accident 

and had no relation to the success of the victim’s knee surgery. 

In this case, however, Victim’s mental health conditions were 

exacerbated by Ruiz’s actions. Indeed, as the majority opinion 

acknowledges, the trial court found Victim was “doing better in 

outpatient individual and family therapy” and that her problems 

escalated after her encounter with Ruiz to the point that she 

required inpatient therapy. See supra ¶ 18. Likewise, whereas a 

healthy shoulder is not necessarily crucial to the complete 

recovery of one’s knee, mental health conditions are often 

sufficiently interrelated such that one condition cannot be 

satisfactorily treated without addressing one or more others. 

Such is the case here, where the La Europa staff believed “they 

had to work on [Victim’s] other issues to address the trauma” 

caused by Ruiz’s actions. Thus, Victim’s situation is clearly 

 

6. It is also important to note that “[r]equiring a victim of a

sexual assault or rape . . . to disclose the details of her 

communications with her therapist when requesting restitution 

for therapy costs would tend to deter [the] victim from 

requesting restitution for the cost of therapy.” People v. Garcia, 

111 Cal. Rptr. 3d 435, 441 (Ct. App. 2010). Where, as here, 

there was evidence that Victim’s inpatient therapy was 

necessitated by Ruiz’s actions and related to her being 

victimized by Ruiz, I do not believe that “[p]rying into the 

specifics of confidential patient-therapist communications 

was . . . necessary for purposes of ordering [complete] 

restitution.” See id. at 442.
State v. Ruiz

20140159-CA 15 2016 UT App 18

distinguishable from the majority opinion’s knee-and-shoulder 

example.

¶28 Based on the foregoing, I would conclude that the trial 

court abused its discretion when it deducted the estimated perhour cost of several therapy sessions from Victim’s restitution 

award, and I would therefore reverse the order and remand for 

the trial court to reinstate its previous restitution award for the 

entire cost of Victim’s inpatient therapy. Consequently, I 

respectfully dissent in part from the majority opinion.