State of Utah v. Dang

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State of Utah,
Plaintiff and Appellee,

v.

Tuong Xuan Dang,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010739-CA

F I L E D
July 5, 2002 2002 UT App 231 -----

Third District, Murray Department
The Honorable Michael K. Burton

Attorneys:
Catherine E. Lilly and Kimberly Clark, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

GREENWOOD, Judge:

Defendant argues that the trial court's imposition of restitution was improper where Defendant admitted to transferring title to the van without legal authority, but did not plead to, admit, or agree to pay for the damage to the van. Specifically, Defendant contends that there is no causal link between the damage to the van and the crime for which he admitted responsibility. Defendant attacks the order of restitution, but not the various components of the amount. We affirm.

Under Utah Code Ann. § 76-3-201(4)(a)(i) (1999) (the Restitution Statute) the trial court must order restitution where a defendant's criminal activities cause the victims pecuniary damages. "'Criminal activities' means any offense of which the defendant is convicted or any other criminal conduct for which the defendant admits responsibility to the sentencing court with or without an admission of committing the criminal conduct." Id. § 76-3-201(1)(b) (emphasis added). At sentencing, Defendant admitted that he illegally transferred both title and possession of the van to a representative of KV Auto Body Shop. Therefore, Defendant's admission of responsibility satisfies the "criminal activities" requirement under the Restitution Statute.

Defendant argues that the damage to the van was not a foreseeable consequence of his admitted criminal activities. Resolution of this case is controlled by State v. McBride, 940 P.2d 539 (Utah Ct. App. 1997). In McBride, the defendant stole the victim's car and ultimately pleaded guilty to unlawful control over a motor vehicle. See id. at 540-41. When the police recovered the victim's car, they erroneously transcribed the car's vehicle identification number (VIN), which resulted in the sale of the car since no owner could be located. See id. at 541. This erroneous sale resulted in $600 damage to the victim, which the trial court required the defendant to repay. See id. On appeal, the defendant argued that the victim's loss was not a foreseeable consequence of the defendant's crime because law enforcement's error in transcribing the VIN was an intervening act that superceded the defendant's liability. See id. at 543. This court held: Aided by the benefit of hindsight, we cannot say that the negligence of the police in transcribing the vehicle identification number was so unforeseeable as to supercede the fault of [the defendant] in causing [the victim's] loss. In addition, it is clear that but for [the defendant's] criminal act, which resulted in the impoundment that created the opportunity for the transcription error, [the victim's] loss would not have occurred. Id. at 544.

Foreseeability in this case, if anything, is more clear than in McBride. The possibility that Defendant's unauthorized transfer of the van would result in damage, including the totaling of the van, is a reasonably foreseeable result. As in McBride, but for Defendant's criminal activity, the victims' "loss would not have occurred." Id. Therefore, because it was reasonably foreseeable that Defendant's criminal activities would result in the victims' pecuniary damages, the trial court correctly awarded restitution. See Utah Code Ann. § 76-3-201(4)(a)(i) ("When a person is convicted of criminal activity that has resulted in pecuniary damages . . . the court shall order [restitution]." (Emphasis added.)).

Accordingly, we affirm.
 
 

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Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

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Norman H. Jackson,
Presiding Judge
 
 

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Gregory K. Orme, Judge