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State of Vermont v. Donald Shepherd

October 26, 2012

STATE OF VERMONT
v.
DONALD SHEPHERD



On Appeal from Superior Court, Grand Isle Unit, Criminal Division March Term, 2012 Mark J. Keller, J.

The opinion of the court was delivered by: Reiber, C.J.

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. REIBER, C.J. In July 2010, defendant pled guilty to charges of aggravated sexual assault, lewd and lascivious conduct with a child, and sexual exploitation of a child in exchange for dismissal of several other pending charges. His victim was a ten-year-old child. Defendant is serving a sentence of twenty-five years to life in prison. At issue in this appeal is the court-ordered restitution for relocation expenses of the victim and his family. We hold that the trial court did not abuse its discretion in finding that the relocation in this case was a direct result of defendant's criminal acts. Restitution is therefore appropriate, and we affirm.

¶ 2. Mother has four children, including the victim, Juvenile 1, and his twin brother, Juvenile 2. Mother suffers from fibromyalgia, and Juvenile 2 has autism spectrum disorder and kidney diseases that cause him constant pain. Mother hired defendant as a live-in nanny to help care for Juvenile 2. At the time, the family lived in South Hero, a small, lightly populated town in rural Grand Isle County. Defendant sexually assaulted Juvenile 1 numerous times over a two-month period in 2009.

¶ 3. Following defendant's arrest, the case attracted media attention, and Juvenile 1's identity became known at his school and in the community at large. According to his mother, Juvenile 1 began to suffer adverse effects: he was ignored by other children at school and was very anxious about being known as the victim. She claimed the school staff treated him differently. She reported that the family as a whole was ostracized; if they went to a school play, no one would sit near them. Juvenile 1 was placed in therapy, and the counselor and his mother concluded that it would be necessary to move away from Grand Isle County.

¶ 4. In considering where to move, mother had two requirements: She wanted their new home to be far enough away that Juvenile 1 would be able to start fresh without the community knowing about his past victimization, and she wanted to be close to family in a state that offered sufficient resources for Juvenile 2's needs. Mother's decision boiled down to two places, both of which were more than 2000 miles from Grand Isle County. Mother decided on Hawaii because there was existing family support there and the state offered generous assistance to children with special needs such as Juvenile 2. The move ultimately cost $15,887.78.

¶ 5. The Victims' Compensation Program had awarded compensation for and on behalf of Juvenile 1 in the amount of $3900.68, which included $1645.00 for mental health counseling, $255.68 for mileage, and $2000 for rent/relocation costs. The program petitioned the court for restitution from defendant for the award. The State also filed a request on behalf of Juvenile 1's mother for a judgment in the amount of $13,887.78 for relocation expenses over and above the $2000 paid by Victims' Compensation. The court initially denied both requests for relocation expenses, finding that there was "no 'direct link' between the crime committed and the victim's decision to relocate. Relocation was not a necessary result of the defendant's crime." The state's attorney moved for reconsideration. Vermont Legal Aid also filed a motion for reconsideration on behalf of the victim. Following a hearing, the trial court issued an order granting restitution for the move to Hawaii in the amount of $13,887.78. The court found that defendant's "criminal behavior, in a small Vermont town, [led] directly to the family's ostracization, which resulted in the relocation. The requisite causal connection [between the crime and the loss] exists." The court also explained that an order of restitution in this case would not constitute an impermissible award for pain and suffering, because the relocation expenses were "ascertainable and based on the disruption of the family's life, not some subjective emotional harm."

¶ 6. On appeal, defendant argues that the relocation expenses incurred by Juvenile 1 and his family were "tangential costs incurred as a result of [defendant's] criminal conduct, but not costs caused directly by his crime." Defendant also argues that Hawaii is an unreasonable new location.

¶ 7. We review the trial court's award of restitution for abuse of discretion. See State v. Tetrault, 2012 VT 51, ¶ 10, ___ Vt. ___, ___ A.3d ___ (mem.) (holding that "trial court properly exercised its discretion in determining that defendant's acts directly led to . . . injury"); State v. Kenvin, 2011 VT 123, ¶ 6, __- _ Vt. ___, 38 A.3d 26 (restitution orders reviewed for abuse of discretion).

¶ 8. Vermont's criminal restitution statute requires a judge to consider restitution in "every case in which a victim of a crime . . . has suffered a material loss." 13 V.S.A. § 7043(a)(1). A material loss means "uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses." Id. § 7043(a)(2). We have held under this statute that there must be a "direct link between the loss for which restitution is ordered and the conduct for which defendant has been convicted." State v. LaFlam 2008 VT 108, ¶ 17, 184 Vt. 629, 965 A.2d 519 (mem.).

¶ 9. Defendant's assertion that there is no direct link between the crime for which he was convicted and the victim's loss is unfounded. Defendant contends that there were intervening factors which caused the family to move. In general, a proximate-cause analysis is appropriate in determining whether restitution should be granted. See LaFlam, 2008 VT 108, ¶ 11. Here, however, Juvenile 1's emotional injury and ostracization in a small town were the natural and probable consequences of the sexual assaults, thereby necessitating relocation. Cf. Estate of Summer v. Dep't of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (noting that efficient, intervening cause is one which is "new and independent" and unanticipated). As the trial court found, Juvenile 1 suffered emotional injury as a result of the sexual assaults, an injury that manifested itself in an inability to live a normal life in the small Vermont town where his peers knew about the sexual assaults he had suffered and ostracized him as a result. Juvenile 1 was no longer invited to friends' houses, parents instructed their children to avoid him, he was treated differently by school staff, and members of the community ostracized the entire family. The victim's counselor opined that Juvenile 1 could not begin the healing process without relocating. Given the severity of the crime in question and the assessment of Juvenile 1's counselor, the trial court's findings that moving to Hawaii would "allow [Juvenile 1] to restart his life in a safe, secure environment away from the anxiety that his victimization would be discovered" and that the requisite causal connection between the crime and the loss exists are supported by the record and the law.

¶ 10. Defendant observes that the family selected Hawaii as opposed to another destination for particular, intervening reasons. This is of no moment. Such an argument conflates the family's reason for relocating with the family's reasons for relocating to Hawaii. The trial court found that the decision to relocate was a direct result of defendant's crime. The secondary decision of where to relocate necessarily took into account the unique needs of the family as a whole, as Juvenile 1 is a minor. Juvenile 1's brother suffers from severe disabilities that require more care than Juvenile 1's mother, who suffers from fibromyalgia, can provide by herself. It is evident that Hawaii was chosen because the family has relatives in Hawaii who can help care for the victim's disabled sibling. In addition, Hawaii provides generous disability benefits. In light of these unique circumstances, the trial court found the choice of Hawaii to be reasonable, a determination that is well within its discretion as factfinder.

¶ 11. The dissent urges that the relocation costs do not constitute material loss, but are more akin to "emotional damages." Post, ¶ 20. The fact that Juvenile 1's injury was emotional, however, does not necessarily lead to the dissent's conclusion that the relocation costs are more like damages for pain and suffering or emotional trauma, which are not proper subjects of restitution under 13 V.S.A. § 7043. Indeed, our restitution statute defines a "victim" as one who has suffered a physical, financial, or emotional injury as a result of a crime. 13 V.S.A. § 5301(4) (emphasis added). The focus in awarding restitution to a victim is not the type of injury sustained, but rather the link between the damages and the crime. If readily ascertainable costs associated with emotional injury arising directly from a crime were not ...


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