State of Utah v. Pomikala

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State v. Pomikala. Filed May 27, 1999 IN THE UTAH COURT OF APPEALS

State of Utah,
Plaintiff and Appellee,


Melanie E. Pomikala,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981249-CA

May 27, 1999
  1999 UT App 173 -----

Third District, Salt Lake Department
The Honorable Pat B. Brian

Kristine M. Rogers and Catherine E. Lilly, Salt Lake City, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee


Before Judges Wilkins, Greenwood, and Bench.

BENCH, Judge:

Defendant argues that the bank is not a "victim" entitled to restitution as defined by the relevant criminal statutes in effect when the restitution order was entered against her. See Utah Code Ann. § 76-3-201 (Supp. 1997); id. § 77-38-2 (Supp. 1997). "We will not vacate an order of restitution unless the trial court abused its discretion or exceeded its authority." State v. Westerman, 945 P.2d 695, 696 (Utah Ct. App. 1997). "However, if the trial court's order is premised on statutory interpretation, as it is here, we afford the trial court's interpretation no deference and review for correctness." Id.

The restitution statute in effect at all relevant times in this case defined victim as "any natural person against whom the charged crime or conduct is alleged to have been perpetrated or attempted by the defendant or minor personally . . . ." Utah Code Ann. § 77-38-2(9)(a) (Supp. 1997) (emphasis added). Under this definition, the bank is not entitled to restitution because a bank is not a "natural person." See Cade v. Zions First Nat'l Bank, 956 P.2d 1073, 1078 (Utah Ct. App. 1998) (stating bank is not a natural person); see also Black's Law Dictionary 1142 (6th ed. 1990) (defining natural person as a human being).

In its written Findings of Fact, Conclusions of Law and Order, dated March 18, 1998, the trial court concluded as a matter of law that the bank was a victim, and ordered defendant to pay restitution to the bank. The trial court based its decision on House Bill 378, which amended the restitution statute. This amendment, which was not effective until May 4, 1998 (nearly two months after the trial court's order), eliminated the "natural person" requirement. The trial court concluded that, under this yet-to-be-effective amendment, the bank was entitled to restitution.

The trial court's application of the 1998 amendment, which was not yet effective, and which contains no indication of retroactivity, was improper. See OSI Indus., Inc. v. Utah State Tax Comm'n, Auditing Div., 860 P.2d 381, 383 (Utah Ct. App. 1993) (stating "a party is entitled to have its rights determined on the basis of the law as it existed at the time of the occurrence, and a later statute or amendment should not be applied retroactively"). See also Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 675 (Utah 1997) (indicating retroactivity not to be applied unless legislature has clearly expressed that intention).

On appeal, the State concedes that the trial court erred in applying the 1998 version of the restitution statute. The State, nonetheless, argues that the restitution order can be upheld because the bank is a "direct victim." This argument is without merit. Even if the bank were a "direct victim," it is still not a "natural person" as required by the statute. Consequently, ordering restitution to the bank in this criminal action was impermissible. See Westerman, 945 P.2d at 697 (holding insurance company was not a victim because the crime was not perpetrated against it "personally or as a party").(1)

The State also argues that reading the statute literally compels an absurd result and "distorts and seriously undermines the legislative intent," but it provides no evidence of legislative intent. In any event, a statute must be interpreted "according to its plain language, unless such a reading is unreasonably confused, inoperable, or in blatant contravention of the express purpose of the statute." Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996). See also Westerman, 945 P.2d at 696 (stating we first examine a statute according to its plain language, and apply other methods of interpretation only if language is ambiguous or inconsistent). In this case, there is no reason to look beyond the plain and unambiguous language of the statute.

The bank is not a "natural person," and therefore is not a "victim" eligible for restitution under the criminal statute in effect at all relevant times in this case. Accordingly, we reverse the restitution order.

Russell W. Bench, Judge



Michael J. Wilkins,
Presiding Judge

Pamela T. Greenwood,
Associate Presiding Judge

1. The holding in Westerman was based upon the indirect victim status of the insurance company, and not upon any analysis of the "natural person" requirement. In fact, the definition of victim in the statute at the time of the Westerman decision referenced "person," and not "natural person," which makes the State's position here even less tenable.