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National Crime Victim Law Institute

State v. McCray, No. CR2009-162404-001 DT (Ariz. Super. Ct. Aug. 12, 2010) (opinion and order).

October 11, 2010

Defendant pleaded guilty to charges of defrauding her employer and restitution was ordered.  Defendant appealed from the restitution order arguing, inter alia, that the court erred in including the victims’ attorney fees, investigator fees, audit fees, banking fees, and interest as these losses were “consequential” and therefore barred by Arizona’s restitution statutes.  In particular, defendant argued that the victims were not entitled to recover in restitution the costs associated with retaining an attorney to advise them about how to terminate defendant and handle insurance claims, and about their rights as crime victims.  The court rejected defendant’s arguments and upheld the restitution order in full.  The court began by noting that under Arizona’s restitution statutes, “the Court shall consider all losses caused by the criminal offense,” and that such losses include “lost interest, lost earnings and other losses which would not have been incurred but for the offense.”  The court acknowledged tension between the barring of “consequential damages” and this definition of a loss, but explained that as long as the loss flows “directly from the defendant’s criminal conduct, without the intervention of additional causative factors,” the loss is properly addressed in restitution.  The court then held that because the victims’ losses in this case would not have been incurred but for, and were the direct result of, defendant’s criminal conduct, the trial court’s restitution order was proper.  As to the propriety of including the victims’ attorney fees in the restitution order, the court held that these losses meet the “but for” standard.  The court rejected defendant’s argument that the victims did not need the advice of an attorney regarding their rights as crime victims as the state could have advised them on victims’ issues.  The court explained that the state does not represent the victims and that “victims are entitled to retain independent counsel.”