State v. Gerhardt

When determining whether restitution for a victim arising from criminal conduct of a defendant, the court should look to when the conduct causing restitution owed occurred and whether it is a direct result of the initial criminal conduct and not latter criminal conduct stemming from the initial criminal conduct.

Defendant appealed an amended judgment of conviction for domestic violence strangulation, wherein he was ordered to pay restitution of attorney's fees incurred by the victim. Defendant persistently violated a no-contact order entered by the court shortly after his arrest. Due to the continual violation of the no-contact order, the victim hired an attorney to assist her in obtaining a restraining order. The trial court awarded restitution, stating that the attorney's fees were incurred as a result of the underlying strangulation. Defendant argued that the trial court erred because the fees were incurred, instead, by his repetitive violation of the no-contact order. This Court agreed with Defendant, concluding that while the no-contact order stems from the strangulation crime, it is distinguished from the strangulation and therefore the attorney's fees are not from the defendant's initial criminal conduct but subsequent criminal conduct. The dissent contended that the established test for causation in restitution is a “but for” test and that “a defendant's criminal activities need not directly cause a victim's cost,” arguing that the need for the victim to retain counsel would not have been necessary but for the defendant's strangulation and the court order that arose from said conduct. Award of restitution reversed; otherwise affirmed.