Opinion
No. 5-606 / 04-1866
Filed November 9, 2005
Appeal from the Iowa District Court for Polk County, Eliza Ovrom, Judge.
Tanya Henry appeals from a restitution order entered against her by the district court. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Heather Wood of Rosenberg, Stowers, and Morse, Des Moines, for appellant.
Thomas J. Miller Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Zimmer and Miller, JJ.
Tanya Henry appeals from the district court's order awarding restitution to Alan Henry in the amount of $15,282.20. Because we find the majority of the restitution award sufficiently causally linked to Henry's criminal convictions for burglary in the third degree and harassment, we affirm in part but reverse only on some of the smaller awards and remand.
Background Facts and Proceedings.
The defendant Tanya Henry and the victim in this case, Alan Henry, were formerly married for approximately eleven years. Tanya plead guilty on August 6, 2004, to one count of harassment from an incident on May 1, 2004, and one count of burglary in the third degree for unlawfully entering Alan's house on May 23, 2004. The district court held a restitution hearing in connection with the guilty pleas on these counts on October 15, 2004, at which time the State called Alan and Dr. Timothy Vermillion, one of Alan's treating physicians, to testify as to Alan's damages. The district court entered an order following the hearing setting Alan's victim restitution award at $15,282.20. The award was represented by the following damage items:
(1) Loss of Journeyman wages at $29.03 an hour at 40 hours per week from May 3, 2004 to August 23, 2004.
80 days × 232.24 per day (29.03 × 8 hours)= $18,579.20
(2) Cash taken from home 500.00
(3) Replacement of house and truck keys 4.00
(4) Co-payments to Dr. Dilley 140.00
(5) Co-payments to Dr. Vermillion 60.00
(6) Medication co-payments 40.00 __________ SUBTOTAL 19,323.20
LESS MONEY RECEIVED -4,041.00 __________ RESTITUTION $15,282.20
Tanya appeals from the district court's restitution order, asserting that the lost wages/benefits and physician and prescription co-pay damages claimed by Alan were not causally connected to her crimes because he suffered from the same medical condition previous to her actions. Tanya does not appeal the other $504.00 in restitution damages, therefore we do not address them.
I. Scope of Review.
Decisions regarding restitution are reviewed for errors of law and are only reversed for abuse of discretion. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We are bound by the district court's findings of fact so long as they are supported by substantial evidence. State v. Paxton, 674 N.W.2d 106, 108 (Iowa 2004). "Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion." State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). The district court is afforded broad discretion to determine the amount of damages flowing from the criminal acts found to have been committed and may set the amount of restitution where the record contains "proof of a reasonable basis from which the amount may be inferred." State v. Watts, 587 N.W.2d 750, 752 (Iowa 1998).
II. Preservation of Error on the Restitution Order.
The State contends that Tanya Henry has not preserved error on her challenge to the causal connection of damages ordered in the restitution judgment. In general, matters not raised in the trial court will not be considered for the first time on appeal. Bonstetter, 637 N.W.2d at 167. However, preservation of error rules are relaxed in appeals from sentencing orders, State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994), and no objection may be necessary to preserve the issue of sentencing irregularity with regard to restitution for appeal. State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct.App. 1997). In the case at hand, it is abundantly clear that Tanya's trial counsel challenged causation throughout the restitution hearing. Counsel also made argument at the close of evidence that the State had failed to meet its burden with regard to the causation nexus between Alan's damages and Tanya's criminal activities. We find that Tanya preserved error on the causation issue and proceed to address the merits of her claims on appeal. III. Causal Connection in Restitution Judgments. A. Legal Principles on Restitution.
The State also asserts that we do not have jurisdiction on appeal, because Tanya did not seek discretionary review of the restitution order stemming from a deferred judgment. However, restitution was part of the sentencing order for both the harassment conviction and the deferred judgment on the burglary charge. Moreover, a restitution order is "a judgment and lien against all property of a liable defendant," under Iowa Code section 910.7A (2003), enforceable in the same manner as any civil judgment, which is subject to appeal. Compare State v. Stessman, 460 N.W.2d 461, 463-64 (Iowa 1990).
In Iowa, restitution is mandatory in all criminal cases in which the defendant pleads guilty or is found guilty. Bonstetter, 637 N.W.2d at 165. Restitution is defined as the payment of pecuniary damages, which encompasses all damages not paid by an insurer, to a victim of the offender's criminal activities. Iowa Code §§ 910.1(3)-(5) (2003). See also State v. Bradley , 637 N.W.2d 206, 211 (Iowa Ct.App. 2001) (noting restitution is a broadly defined term, including payment of pecuniary damages to a victim in an amount and in the manner provided by the offender's plan of restitution). When ordering an offender to pay victim restitution, the district court is charged with finding proximate causation between the offender's activities and the victim's damages. Id. See also State v. Ihde, 532 N.W.2d 827, 829 (Iowa Ct.App. 1995). A restitution order is not excessive if it bears a reasonable relationship to the damages caused by the offender's acts, as demonstrated by a preponderance of the evidence. Bonstetter, 637 N.W.2d at 165-66. An award of restitution can stand as long as the figure has a reasonable basis and is not speculative or imaginary. State v. Watts, 587 N.W.2d 750, 752 (Iowa 1998).
B. Relevant Facts in Evidence.
The State presented evidence at the restitution hearing through the testimony of Alan Henry and Dr. Timothy Vermillion, Alan's treating general physician. The testimony was somewhat confusing as to what exactly Alan was being treated for during his appointments from May 2004 through August 2004. However, Dr. Vermillion was very clear on one point — that Alan's anxiety and depression were chronic conditions that predated the criminal activities in May 2004 to which Tanya plead guilty. Dr. Vermillion testified that Alan sought treatment for his anxiety and depression in December 2003 and continued to be treated at the time of the hearing in October 2004. He testified that Alan had been prescribed an anti-anxiety medication intermittently since January 2001 and constantly since December 2003, which Dr. Vermillion increased the dosage of in April 2004 for approximately one month. Dr. Vermillion surmised that Alan's anxiety and depression were caused, in large part by Alan's ongoing destructive relationship with Tanya. Nonetheless Dr. Vermillion opined that Alan's condition was worsened by Tanya's criminal activities in May 2004 to the point that he was completely restricted from work.
As to the specific appointments, Dr. Vermillion testified that Alan presented for a recheck and refill of his anxiety medication on May 26, 2004, and requested a note to give the judge at Tanya's trial on the 27th. However, Dr. Vermillion stated that Alan did not exhibit any symptoms of anxiety and depression on that visit. He did testify that he gave Alan a medical excuse from May 5 to May 7, 2004, due to Alan's increased anxiety that Tanya was going to appear at his workplace. He stated that the effect on Alan's work was increased: "[W]e discussed that he was heading for work at a specific time, I believe it was May 5, and he was fearful that his wife would come to his work to try and kill him." Dr. Vermillion also testified that he signed Family Medical Leave Act (FMLA) documents completely restricting Alan's employment from May 11 through August 25, 2004, due to acute anxiety and depression. Dr. Vermillion stated that the FMLA leave for "total restriction from work" was due to Alan's acute anxiety and depression in May 2004. In addition to these problems, Alan also saw Dr. Vermillion on June 11, 2004, regarding his back and was diagnosed with low back pain and anxiety. Alan returned on June 16 complaining of continuing problems with his back and tingling in his right toes. A June 25th appointment was for a refill of Alan's anxiety medication. Dr. Vermillion also testified that Alan saw him for a migraine sometime in September after returning to work, but he was unable to determine the cause of the migraine.
On cross examination, Dr. Vermillion admitted that Alan's condition had been present and ongoing since December 2003. Furthermore, Dr. Vermillion stated that the treatment he has established for Alan has been consistent treatment for anxiety, without alteration except for the increase in Alan's medication in April 2004. Dr. Vermillion testified that he indicated on Alan's FMLA form the date Alan's anxiety condition commenced was December 2003. He testified that during all four of Alan's visits on December 31, 2003, February 11, 2004, April 7, 2004, and May 26, 2004, it was his opinion that the anxiety Alan exhibited was part of his chronic ongoing problem of conflict with Tanya. However, Dr. Vermillion did testify that Tanya specifically caused an increase in Alan's anxiety as he was "clearly upset when he felt that his wife had broken into his house and stolen his dogs." During redirect, Dr. Vermillion stated he believed the break-in was addressed at Alan's April 7 appointment but conceded it must have been the May 26 appointment if the burglary occurred May 23, 2004. He also testified on redirect that Alan experienced situational anxiety, bouts or episodes of increased anxiety due to his chronic condition. Dr. Vermillion concluded these instances of situational anxiety were based on Alan's perception of danger to himself, which in turn was based on the threats and harassment by Tanya. He did not indicate the specific threats or harassment by Tanya to which he referred.
The State also presented evidence at the restitution hearing through the testimony of Alan Henry. He testified that he was demoted from his position of lead traffic foreman at Baker Electric and had his company truck taken away from him in March 2004, due to his continual problems with Tanya. Alan stated that he took FMLA leave from May 12, 2004, until August 23, 2004, as a result of "the continual harassment, stalking, and phone calls from [Tanya]." At this time, Alan testified that he suffered from severe depression, was scared to walk outside and feared Tanya assaulting him. Alan testified that he sought past and continuing medical treatment for his physical and emotional problems, including treatment by Dr. Vermillion and also counseling from a clinical psychologist, Dr. John B. Dilley. He began psychological treatment with Dr. Dilley around January 1, 2004, "to try and figure out why this all happened and get over it and move on." Alan testified that he sees Dr. Dilley on a regular basis every two to three weeks, including treatment with regard to Tanya's criminal activities in May 2004. Alan stated that although he was "just continuing" treatment at the time, his mental state became notably worse after Tanya's actions in May because he constantly feared a confrontation or assault and was afraid to leave the house after the burglary. From the State's Exhibit 2, it appears that Alan's appointments with Dr. Dilley increased somewhat after May 1, 2004, totaling seven in the period from June 3 through August 3. Alan also testified that he received some disability payments and food stamp aid during the time he was off work, from May 3 through August 23, 2004.
C. Substantial Evidence as to Restitution Damages.
At the close of evidence, each party made closing arguments as to causation and Alan's damages. In its ruling from the bench, the district court found the following:
I think that the State has proven by a preponderance of the evidence that the defendant — Mr. Henry, the victim, did suffer damages as a result of these criminal actions. I think that his inability to work beginning May 3rd, 2004, was proven to be directly caused by the actions of the defendant. That was established through the testimony of Dr. Vermillion, the exhibit from the psychologist, Dr. Dilley, and from the [victim's] own testimony.
And I think that the entire period he was off work that it has been established that that was proximately caused by these two criminal acts and the aftermath of them which involved going to court and so forth. And so I think that the [victim] is entitled to his lost wages and benefits during that period. The correct measure of damages for this — because he has lost his foreman position before May 1st, which would not be the foreman wages is my understanding.
I don't know that I have the breakdown on what that is, but I think that the period for lost wages would be May 3rd, 2004, which is when Dr. Vermillion first excused him from work until he returned on August 26th, less the disability and food stamp payments that he received. . . .
I do think that doctor visits during this period, the co-pays, certain of them have been proven to be proximately caused by the defendant's actions.
Dr. Vermillion testified that [Alan] was experiencing increased anxiety and depression directly related to these events. And those are the doctor visits of May 26th, June 11th, and June 25th, and $20 co-pay so, that would be $60 for that. I'm not awarding June 16th because that was apparently related to his back not his anxiety. And then Dr. Dilley's co-pays during the same period by my calculations are [7] doctor visits during the relevant period to Dr. Dilley at $20 co-pay would be $140 for those.
Also I am going to — I also find that the drugs he took for anxiety and depression during this period were proximately caused by these two criminal acts and are directly related to them, and that's a $10 co-pay for the period of May through August, four months.
Lost Wages.
We look to the district court's ruling for an abuse of discretion, and we are bound by the district court's findings of fact that are supported by substantial evidence. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). Taking the restitution order item by item, the award of restitution for Alan's lost wages and benefits at the journeyman's rate of pay between May and August 2004 is supported by substantial evidence in the record. Alan testified that he lost his foreman position in March, predating Tanya's criminal acts in May and putting him on a journeyman's pay scale at the time. Dr. Vermillion presented uncontroverted evidence that he issued Alan an FMLA medical leave from May 5 through May 7, and then extended it through August 25, 2004. Dr. Vermillion testified that he put Alan on FMLA leave due to Alan's increased anxiety over Tanya's May criminal activities. It is clear from the record that Alan was working at the journeyman's rate prior to May 1, but was unable to safely continue working from May through August 2004 due to his increased anxiety over Tanya's actions. Alan also testified that he was essentially homebound following Tanya's harassment on May 1 and burglary on May 23, due to his fears of another assault or confrontation by Tanya before her incarceration. While clearly much of Alan's anxiety predated the criminal activity, there is substantial evidence in the record to affirm the district court finding of a causal connection between the May 1 incident and Alan's worsened condition precipitating his FMLA leave between May 3 and August 23, 2004. We affirm the district court's award of lost wages and benefits at the journeyman's rate of pay for this period.
Medication and Physician Co-pays.
We now turn to the remaining awards for co-pays paid by Alan. The district court found sufficient causal connection between these items of damage and Tanya's May 2004 criminal activities. We cannot agree, however, that the record contains substantial evidence supporting the district court's finding of a causal connection for these damages. The evidence on the record shows that the four medical visits to Dr. Vermillion in question were not caused by Tanya's May 2004 criminal acts. The parties do not dispute that Alan had a chronic anxiety problem for which Dr. Vermillion was treating him at least since December 2003. Alan had also been on prescription medication since December 2003 to treat the anxiety. Dr. Vermillion testified that Alan presented for a recheck and refill of his anxiety medication on May 26, 2004 but stated that Alan did not exhibit any symptoms of anxiety and depression on that visit. Alan's June 11th and 16th visits addressed an issue with his back, not any increased anxiety over the harassment or burglary. The June 25th visit was solely for a refill for Alan's anxiety medication. There is not substantial evidence on the record demonstrating a causal nexus between Tanya's criminal acts in May and these medical appointments to Dr. Vermillion. The appointments were either completely unrelated to Alan's anxiety, or were standard in the course of treatment for his chronic condition which predated the May harassment and burglary. The district court did decline the connection for the June 16th visit, as related to Alan's back. However, we also find substantial evidence lacking as to a causal connection between the other three medical visits and Tanya's May crimes, and we find the district court abused its discretion in awarding restitution of $60 for medical co-pays. We reverse the restitution order as to the medical visit co-pays and remand for entry of an order consistent with this opinion.
We likewise do not find substantial evidence supporting the district court's award of restitution damages for the $140 in psychiatric visit co-pays. The only evidence presented as to Alan's visits to Dr. Dilley for psychiatric care was Alan's testimony and the letters from Dr. Dilley outlining appointment dates. Alan testified that he sees Dr. Dilley on a regular basis every two to three weeks, and stated that although he was "just continuing" treatment at the time, his mental state became notably worse after Tanya's actions in May because he constantly feared a confrontation or assault and was afraid to leave the house after the burglary. From our review of the record, it appears that Alan had a notable increase in his appointments with Dr. Dilley in June 2004, to once every week. Prior to June and afterwards, Alan was consistently seeing Dr. Dilley twice a month. Other than the obvious increase of visits in June (following Tanya's crimes in May) there is not substantial evidence that the other visits were causally linked to the May harassment and/or burglary. Alan had an established schedule of appointments with Dr. Dilley at twice a month, to address and treat his chronic anxiety condition. We find that the two additional visits in June 2004 following Tanya's May criminal activities substantially support a causal connection between the increased treatment and Tanya's acts. However the remaining five appointments (at two per month) were the standard course of treatment preceding the May harassment and burglary. Therefore, we find the district court abused its discretion in awarding restitution for co-pays of all seven appointments with Dr. Dilley after May, when only the increase in two additional June appointments varied from Alan's established and ordinary course of treatments preceding May. We reverse the restitution award as to the five appointment co-pays and remand to the district court for entry of an order consistent with this opinion.
Regarding the prescription co-pay award, the district court awarded $40 at $10 per prescription for four months of Alan's anti-anxiety medication. The award of these damages appears to cover refills for the months of May, June, July and August 2004. Nevertheless, there is not substantial evidence on the record supporting the causal relationship between Tanya's May crimes and Alan's prescriptions for this time. According to the uncontroverted evidence at hearing, Alan has a chronic anxiety condition for which he has been prescribed and taking medication at least since December 2003. While the testimony does reflect that Alan's dosage was increased during April 2004, this increase was only for one month and after that month (in May and later) Alan maintained his regular, established schedule of medication. There is not a shred of evidence, let alone substantial evidence, that Alan would have discontinued taking this medication "but for" Tanya's criminal activities in May 2004. As substantial evidence on the requisite causal nexus is lacking in the record, we find the district court abused its discretion in awarding restitution damages for Alan's prescription co-pays during this period. We reverse the restitution order as to prescription co-pays and remand to the district court for entry of an order consistent with this opinion.