from the Superior Court in Pima County No. CR20140818001 The
Honorable Richard D. Nichols, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix Amy M. Thorson, Assistant Attorney General,
Tucson Counsel for Appellee
Brault, Pima County Legal Defender By Robb P. Holmes,
Assistant Legal Defender, Tucson Counsel for Appellant
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Howard
VÁSQUEZ, PRESIDING JUDGE.
Donald Stutler appeals from the restitution award resulting
from his conviction of aggravated assault, domestic violence.
He argues a portion of the award was improper because the
victim's lost earnings from her bakery business were
consequential damages and were "caused by an intervening
event." He further contends the trial court's award
of the victim's lost earnings was not supported by
sufficient evidence. We affirm.
Stutler's conviction stems from a 2014 incident in which
he attacked the victim, the mother of his child, outside her
home, covering her mouth and nose with his hand and squeezing
her throat. After a jury found him guilty, the court
sentenced him to a one-year prison term. We affirmed his
conviction and sentence on appeal. State v. Stutler,
No. 2 CA-CR 2015-0110 (Ariz. App. Feb. 4, 2016) (mem.
While Stutler's appeal from his conviction and sentence
was pending, the state filed a motion for restitution,
attaching the victim's affidavit of loss requesting
restitution for locks and a security system for her business,
compensation for court appearances, and "lost wages and
benefits." Her affidavit stated her lost earnings were
"$900 average" for a week in January 2014. The
court held an evidentiary hearing. The victim, who operated a
bakery, testified that, after the assault, she and her son
had moved to "a safe house" and, on the advice of a
police officer, "remain[ed] away from the bakery"
because she did not feel safe from Stutler, who had come to
the bakery after the assault. She further testified that, as
a result, she had been unable to deliver on several orders,
including some wedding cakes and other baked goods. After the
hearing, the court ordered that Stutler pay $900 in
restitution for lost earnings, $85 for a locksmith and
security system, and $60 for court appearances. This appeal
We view the evidence in the light most favorable to
sustaining the trial court's restitution order. State
v. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d 409, 412
(App. 2009). And, we review that order for an abuse of
discretion. Id. "A defendant who has been
convicted of a crime shall be ordered '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.'" Id. ¶ 6, quoting
A.R.S. § 13-603(C). A loss is recoverable if it
constitutes economic loss the victim would not have incurred
but for the criminal conduct, and the criminal conduct
directly caused the loss. Id. ¶ 7.
"'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."
A.R.S. § 13-105(16). "Economic loss does not
include . . . consequential damages." Id. 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).
Stutler argues the trial court erred in awarding restitution
for the victim's lost earnings at the bakery,
characterizing those earnings as "lost profits" and
citing State v. Pearce, 156 Ariz. 287, 751 P.2d 603
(App. 1988), for the proposition that lost profits are
consequential damages "not recoverable as
restitution." In Pearce, the defendant pled
guilty to stealing construction equipment he had leased from
the victim, only some of which was recovered. Id. at
287-88, 751 P.2d at 603-04. The victim sought restitution for
the amount owed under the equipment lease for the entire
lease period. Id. at 288-89, 751 P.2d at 604-05. We
held the trial court erred by ordering restitution in the
amount the victim would have received had the defendant fully
performed on the lease agreement because the award amounted
to "lost profits [that] are consequential damages
resulting from [defendant's] conversion."
Id. at 289, 751 P.2d at 605. We remanded "for a
determination of the economic loss actually suffered by [the
victim] as a result of the theft" excluding the
"contract damages" originally awarded by the trial
court. Id. at 290, 751 P.2d at 606.
Pearce has no application to the facts of this case.
The restitution awarded the victim here is not profits from a
contract that Stutler failed to perform, but for earnings for
work she was unable to perform because of his conduct. Lost
earnings are recoverable as restitution. § 13-105(16).
And, as this court noted in State v. Young, even
were we to characterize the victim's loss as lost
profits, "Pearce does not hold that 'lost
profits' are necessarily 'consequential damages'
that may never be recovered as economic loss" and,
indeed, "language of that opinion may be limited to the
peculiar circumstances of the case." 173 Ariz. 287, 289,
842 P.2d 1300, 1302 (App. 1992).
Stutler further argues the lost earnings actually resulted
from the police officer's advice that the victim stay
away from the bakery to avoid having contact with Stutler.
Thus, he reasons, the loss "did not flow from the act
for which Stutler was convicted." But expenses incurred
by a victim to protect herself from future attack can be
awarded as restitution. See State v. Brady, 169
Ariz. 447, 448, 819 P.2d 1033, 1033 (App. 1991) (moving costs
properly awarded as restitution in part "because
[victim] feared that her assailant might return and do her
further harm"). Stutler has cited no authority, and we
find none, suggesting that a victim loses the right to
restitution merely because she has taken steps to protect
herself at the advice of a law enforcement officer. Nor can
we see any sensible reason to adopt such a rule-it would be
absurd to deny restitution here when a victim who
independently chose to take identical action would receive
Stutler also argues that insufficient evidence supported the
trial court's restitution award because the victim did
not provide "documentary evidence" to support her
claim of lost earnings. No such evidence was required. Viewed
in the light most favorable to sustaining the court's
ruling, Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d at
412, the victim's testimony and her loss affidavit
permitted the court to conclude she lost $900 in earnings
because she was unable to work. The court was entitled to
evaluate her testimony and determine whether her claim of
loss was credible. See Gutierrez v. Gutierrez, 193
Ariz. 343, ¶ 13, 972 P.2d 676, 680 (App. 1998) ("We
will defer to the trial court's determination of
witnesses' credibility and the weight to give conflicting
We affirm the ...