Michigan Court Of Appeals Reverses Restitution Awards In CSC Case

On September 22, 2015, the Michigan Court of Appeals reversed restitution awards totaling over $500,000 in a criminal sexual assault case (CSC) involving two victims known pseudonymously as Austin and Shane. The Court of Appeals reversed the restitution orders

because defendant’s illegal acts involving Austin did not give rise to defendant’s convictions, Austin is not entitled to any restitution. Shane’s restitution award, too, must be vacated, as the evidence provided no reasonable factual basis for substantial components of the total. Accordingly, we vacate most of the restitution order and remand for further proceedings.

In People v Corbin, Docket No. 319122, the Michigan Court of Appeals addressed the issue of whether the trial court erred in assessing restitution awards against defendant as a result of his criminal sexual conduct against two victims.

The Court first recited the facts of the case:

Austin and Shane were born in 1989 and 1991, respectively. They resided in Kansas City with their mother and father until 1992, when the parents separated. The parents’ divorce finalized in 1994, and the brothers moved with their mother to Traverse City. Their father relocated to Belgium a year later and remained overseas until 2000, when he returned to Kansas City.

Defendant and his wife lived in Traverse City and were close friends of the brothers’ mother. Shane described defendant as a quasi-father figure. As boys, the brothers frequently visited defendant’s home. Defendant repeatedly assaulted them there, and on cross-country skiing trips in Canada, between 1995 and 2005. Shane disclosed the abuse in January 2011. When interviewed by the police, defendant admitted to having engaged in sexual contact with both brothers.

The felony information set forth three counts of second-degree criminal sexual conduct (CSC) involving Shane, and one count involving Austin. At defendant’s guilty plea hearing, the prosecutor conceded that the statute of limitations had run on the allegations concerning Austin and voluntarily dismissed that charge. When tendering his guilty plea, defendant nevertheless admitted to having engaged in criminal sexual conduct with Austin . . . .

In a bench opinion, the trial court awarded both victims $15,000 a year in outpatient therapy costs for eight years, totaling $120,000 per person. The trial court found that both victims were also entitled to the costs of inpatient admissions at The Meadows, which the court estimated as $42,000 each. The court adopted McGonigle’s cost estimates for medication and psychiatric services of $40,000 for each victim, and further granted each brother $31,200 in “lost wages,” yielding a total of $275,200 each. The court then added to that sum the amounts already paid for treatment: $1,600 for Austin, and $1,785 for Shane . . . .

The Court's analysis of whether the trial court erred in assessing over $500,000 in restitution for the victims of defendant's criminal sexual conduct:

Given the Supreme Court’s order that we consider the issues raised in defendant’s motion, we must address whether the trial court appropriately awarded restitution to Austin. Defendant was not convicted of CSC involving Austin. Accordingly, McKinley dictates that his abuse of Austin “may not be relied on as a basis for assessing restitution[.]” Id. at 419. Because the trial court lacked any authority to award restitution for defendant’s uncharged conduct, we vacate the entirety of Austin’s restitution award. In the remainder of this opinion, we therefore need only address the restitution awarded to Shane . . . .

Defendant contends that the restitution amounts allocated for Shane’s future medical and psychological treatment and “lost wages” were not authorized by MCL 780.766. The evidence supporting these awards, defendant asserts, was entirely speculative, and did not represent “easily ascertainable” or “measurable” losses . . . .

In his direct testimony, McGonigle hedged as to the specifics of the therapy he proposed: “I was expecting kind of a long course of treatment with possible referral to in-patient intensive therapy as needed.” He was even less certain regarding the amount of money needed to address Shane’s future psychological therapy needs. McGonigle admitted that the numbers he provided the court were conjectural . . . .

McGonigle’s inability to provide the court with cost figures specific to Shane renders the court’s estimates fatally uncertain. An informed guess as to a victim’s future psychological therapy costs does not equate with an amount “reasonably expected to be incurred.” While we recognize an element of uncertainty always lurks in the background when a factfinder predicts future damages, see Hannay v Dep’t of Transp, 497 Mich 45, 86-88; 860 NW2d 67 (2014), the evidence presented here bore only the most tenuous connection to Shane’s needs. McGonigle admitted that the numbers he supplied the court did not specifically apply to Shane, and did not constitute “solid figures about how much treatment” Shane would reasonably require to heal. Instead, McGonigle relied on “average lengths of time” regarding other, undescribed patients, found in “research” that he failed to identify. This attenuated evidence did not suffice to demonstrate the loss that would “reasonably expected to be incurred” by Shane rather than an average PTSD patient.

Moreover, McGonigle did not provide the court with sufficient grounds for a reasonably accurate restitution award predicated on the “direct” harm Shane sustained “as a result of the commission of a crime.” MCL 780.766(1). In McKinley, 496 Mich at 421, the Supreme Court emphasized that “MCL 780.766(2) requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded.” As noted by our Supreme Court in McKinley, Michigan’s restitution statute instructs a sentencing court to consider “the amount of loss sustained by any victim as a result of the offense.” Id., quoting MCL 780.767(1) (emphasis in original). The phrase “as a result of” contemplates factual causation. See People v Laidler, 491 Mich 339, 344-345; 817 NW2d 517 (2012). “The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, ‘but for’ the defendant’s conduct, would the result have occurred?” People v Schaefer, 473 Mich 418, 435-436; 703 NW2d 774 (2005) (citations omitted), overruled in part on other grounds, People v Derror, 475 Mich 316; 715 NW2d 822 (2006). “Proximate cause”, too, “is a standard aspect of causation in criminal law and the law of torts.” Paroline v United States, 572 US__; 134 S Ct 1710, 1720; 188 L Ed 2d 714 (2014). “For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a ‘direct and natural result’ of the defendant’s actions.” Schaefer, 473 Mich at 436 (citations omitted). The CVRA, we conclude, permits an award only for losses factually and proximately caused by the defendant’s offense; nothing in the text or structure of the statute suggests otherwise.

The record contains no evidence that defendant’s conduct caused the specific future loss awarded by the trial court. Perhaps Shane will require precisely the amount of therapy that the trial court awarded. On this record, however, we have no basis for drawing a reasonable conclusion that likely he will, as the only guidance on that score was provided by McGonigle, who admitted that he was “actually prohibited . . . from giving people any solid figures about how much treatment it will take to get over their problem.” Thus, we perceive no direct relationship between the psychological consequences of defendant’s criminal acts toward Shane and the amount of restitution awarded. While Shane is entitled to restitution for future psychological therapy expenses that he should reasonably expect to incur as a direct result of defendant’s criminal acts, “[r]estitution is not intended to provide a windfall for crime victims but rather to ensure that victims, to the greatest extend possible, are made whole for their losses.” United States v Huff, 609 F3d 1240, 1249 (CA 11, 2010) (quotation marks and citation omitted). McGonigle’s testimony did not inform the trial court what it would take to make Shane (as opposed to any average sexual abuse victim) whole. His “ballpark” estimate may have been the best that he could offer as a licensed social worker, but no evidence suggests that a more certain estimate, predicated specifically on Shane’s condition and likely future needs, was otherwise impossible to procure . . . .

In summary, we vacate the trial court’s order awarding Shane restitution for future therapy costs, future medication expenses, future psychiatric services, and “lost wages.” The sums awarded for these categories of loss were not “reasonably determined,” and do not correspond to the amounts “reasonably expected to be incurred” by Shane relating to future psychological care or after-tax income loss. We remand for correction of the order to reflect the amount paid for psychological therapy, $1,785. Should the prosecution elect to present additional testimony, the court may conduct a new restitution hearing . . . .