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State v. Habener

Court of Appeals of Arizona, First Division, Department E

September 24, 2013


Not for Publication-Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court of Maricopa County Cause No. CR2010-065403-001 The Honorable Janet E. Barton, Judge.

Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Jana Zinman, Assistant Attorney General Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender Phoenix By Mark E. Dwyer, Deputy Public Defender Attorneys for Appellant.



¶1 Diane Lynn Habener (defendant) appeals the trial court's order awarding restitution to the Maricopa County Sheriff's Office (MCSO) in the amount of $6, 448.34. For the following reasons, we affirm.


¶2 In September 2010, defendant was charged with sixteen counts of cruelty to animals, all class one misdemeanors, after MCSO seized a total of 114 dogs and cats from two properties where defendant operated animal rescue shelters. After a bench trial, the court convicted defendant of nine counts of cruelty to animals. The court suspended the imposition of sentencing and placed defendant on six years of supervised probation. This court affirmed defendant's convictions and sentences in State v. Habener, 1 CA-CR 11-0354 (App. Sep. 11, 2012) (mem. decision).

¶3 The court held hearings to determine restitution owed to MCSO pursuant to Arizona Revised Statutes (A.R.S.) § 13-603(C) (2010). During the hearings, Sergeant Beckley testified about costs incurred from the animals' seizure, housing, and medical care, using invoices produced by Alta Vista Veterinary Hospital (Alta Vista). Expenses accrued due to various medications, medical tests, vaccinations, veterinarian examinations, and other medical and health-related services provided to the animals. Sergeant Beckley testified that some treatments were recommended by veterinarians and some were part of MCSO's routine care for seized animals. She further testified that no treatment was unreasonable or needless.

¶4 The state requested $8, 373.58 in restitution. This amount represented MCSO's expenses for the nine animals relating to defendant's convictions. The court awarded restitution to MCSO in the amount of $6, 448.34, ruling that these expenses were "properly recoverable."

¶5 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4031 (2010).


¶6 We review a court's restitution order for abuse of discretion. State v. Slover, 220 Ariz. 239, 242, 4, 204 P.3d 1088, 1091 (App. 2009). A court abuses its discretion when it misapplies the law or bases its decision on incorrect legal principles. Id. We view the facts in the light most favorable to affirming the court's findings, and we will not reweigh the evidence. In re Andrew A., 203 Ariz. 585, 586-87, ¶¶ 5, 9, 58 P.3d 527, 528-29 (App. 2002).

A. The causal nexus between conduct and loss

¶7 Defendant claims the court abused its discretion by ordering her to pay restitution for damages that were not directly caused by her conduct. She opposes paying for medical expenses she deems as consequential or highly attenuated. Contested expenses include: precautionary or routine treatments, rabies vaccinations, and treatments for valley fever and dog bite wounds.

¶8 Section 13-603(C) mandates restitution to the victim "in the full amount of the economic loss as determined by the court . . .." The statute further provides:

"Economic loss" means any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.

A.R.S. § 13-105(16). When determining restitution, the court "shall consider all losses caused by the criminal offense[s]" for which defendant was convicted. A.R.S. § 13-804(B) (2010). Furthermore, the restitution award must bear "a reasonable relationship to the victim's loss." State v. Lindsley, 191 Ariz. 195, 197, 953 P.2d 1248, 1250 (App. 1997).

¶9 Both parties cite State v. Madrid for Arizona's rule governing what constitutes a recoverable loss for restitution. 207 Ariz. 296, 85 P.3d 1054 (App. 2004). A loss is recoverable through restitution if: (1) the loss is economic; (2) the loss is one that the victim would not have incurred but for the criminal conduct; and (3) the criminal conduct directly caused the economic loss. Id. at 298, 5, 85 P.3d at 1056. Direct causation is satisfied when the causal nexus between the conduct and the loss is not too attenuated factually or temporally. State v. Guilliams, 208 Ariz. 48, 53, 18, 90 P.3d 785, 790 (App. 2004) (quoting United States v. Vaknin, 112 F.3d 579, 589-90 (1st Cir. 1997)). If the loss results from a causal event other than the defendant's conduct, then it is considered consequential and thus unrecoverable. State v. Wilkinson, 202 Ariz. 27, 29, 7, 39 P.3d 1131, 1133 (2002). Nonetheless, Arizona's mandatory restitution statute is quite broad and authorizes an award for a wide variety of expenses caused by a defendant's conduct. State v. Baltzell, 175 Ariz. 437, 439, 857 P.2d 1291, 1293 (App. 1992). 1. Routine and precautionary treatments

¶10 Defendant contends the routine and precautionary treatments provided by MCSO and Alta Vista - including vet checkups, tests, vaccinations, and medications - were not directly necessitated by her conduct. As part of MCSO's standard care procedures, all animals seized under cruelty claims are routinely examined by vets. Similarly, rabies vaccinations are routinely given to every cat for health and safety purposes and to help make them more adoptable. In addition, Alta Vista recommended administering tests and medications for leptospirosis, a highly contagious illness communicable to humans. While this was a precautionary measure, Sergeant Beckley explained that MCSO implemented this regimen for the protection of MCSO staff and inmates. Alta Vista further rendered treatments for valley fever.

¶11 The court found these expenses were reasonably recoverable and we agree. Some treatments were administered at the behest of veterinarians and some were given to protect MCSO from contagious pathogens. Therefore, we find the court did not abuse its discretion by including these costs in the restitution order. 2 . Dog bites

¶12 Defendant claims that treating dogs for dog bite wounds which occurred while the animals were in MCSO's custody constitutes expenses that are too attenuated from her conduct to satisfy Madrid's direct causation requirement. She asserts that MCSO's failure to properly tend to the dogs was an intervening cause.

¶13 Defendant provides no citation to the record or evidence supporting her allegation that MCSO failed to properly care for the animals. Conversely, Sergeant Beckley testified that MCSO separated the animals and took as many precautions as possible to ensure their health and safety.

¶14 The court found the expenses for dog bite treatments were reasonably recoverable and we agree. We find the causal nexus here is sufficiently robust. Accordingly, the court did not abuse its discretion by including these costs in the restitution order. 3. Prolonged retention

¶15 Defendant repeatedly proclaims MCSO retained the animals for a prolonged period of time without attempting to adopt them out. She posits this was in aid of prosecution and resulted in increased medical expenses.

¶16 The record does not support defendant's assertion. During the restitution hearings, Brandon Newton, an attorney from the Maricopa County Attorney's Office's civil division, testified about an agreement between MCSO and defendant concerning the forfeiture and adoption of defendant's animals. Because of this agreement, MCSO could not legally adopt out some of the animals until defendant was convicted. For the others, Sergeant Beckley testified MCSO did its best to secure adoptive families. We find defendant's claim unsupported by the evidence.

B. Whether MCSO is a "victim" under A.R.S. § 13-603(C)

¶17 Defendant contends that MCSO is not a "victim" within the meaning of Arizona's restitution statute. See A.R.S. § 13-603(C). Statutory interpretation is a question of law that we review de novo. State v. Jensen, 193 Ariz. 105, 107, ¶ 16, 970 P.2d 937, 939 (App. 1998). We first look to the statute's plain language as the most reliable indicator of its meaning. Alliance TruTrus, L.L.C. v. Carlson Real Estate Co., 229 Ariz. 84, 86, 7, 270 P.3d 911, 913 (App. 2012).

¶18 Section 13-603(C) provides "[i]f a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime . . in the full amount of the economic loss as determined by the court . . . ." While A.R.S. § 13-603(C) does not define "victim, " the definition of "person" within Arizona's criminal statutes includes a "government" or "governmental authority." See A.R.S. § 13-105(29) (2010). In Arizona, restitution is mandatory in a criminal case. See A.R.S. § 13-603(C).

¶19 Our court has broadly interpreted "victim" to mean any entity, including a government agency, that legally stands in the victim's shoes, and as a result, suffers the victim's own economic loss. State v. Prieto, 172 Ariz. 298, 299, 836 P.2d 1008, 1009 (App. 1992) (holding Arizona Department of Economic Security is a victim entitled to restitution for providing psychological services to actual victim); see Guilliams, 208 Ariz. at 51-53, 90 P.3d at 788-90 (recognizing Arizona Department of Corrections as a victim under restitution statute).

¶20 When MCSO executed the search warrant, the animals were suffering from malnourishment, dehydration, diseases, infections, valley fever, bug bites, and a variety of other ailments. MCSO assumed legal custody and responsibility for the animals' care, housing, and treatment. As a direct result of defendant's conduct, MCSO was forced to provide for their wellbeing. Accordingly, we find the court did not abuse its discretion in determining that MCSO is a "victim" under the meaning of A.R.S. § 13-603(C).

C. Did the court improperly shift the burden of proof

¶21 Defendant next argues the restitution hearings were conducted in a manner that improperly shifted the burden of proof from the state to the defense. Defendant takes issue with the fact that her counsel preceded the state in questioning Sergeant Beckley and in giving the closing argument. She claims this shifted the burden of proof to the defense.

¶22 Arizona Rule of Criminal Procedure 19.1(a) states that "[w]ith the permission of [the] court, the parties may agree to any other method of proceeding, " and defendant's counsel on several occasions throughout the hearings expressly agreed to proceed in this order. See also Ariz. R. Evid. 611(a) . Furthermore, the invited error doctrine prevents a party who solicits error during trial from seeking appellate review of the issue. See State v. Logan, 200 Ariz. 564, 565-66, ¶¶ 8-9, 11, 30 P.3d 631, 632-33 (2001) (finding defendant who requested an erroneous instruction at trial waived his right to challenge the issue on appeal) . Because defendant affirmatively agreed to these trial procedures, we find she has waived review of this issue.

D. Sufficiency of the evidence

¶23 Defendant argues the Alta Vista invoices were untrustworthy and insufficient to support the court's order, that the state failed to demonstrate any payments were made, and that the state's testimony did not support the restitution award. Defendant fails to elaborate on her factual claims or to cite any legal authority, as required by Arizona Rule of Civil Appellate Procedure 13(a)(6) .

¶24 The court considered and concluded the state's evidence - including Sergeant Beckley's testimony and the Alta Vista invoices - was sufficient to establish restitution. We agree and find the court did not abuse its discretion.


¶26 For the foregoing reasons, we affirm the court's award of restitution to MCSO in the amount of $6, 448.34.


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