Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Brennan Grubb v State of Alaska (2/25/2022) ap-2722

Brennan Grubb v State of Alaska (2/25/2022) ap-2722

                                                                 NOTICE
  

           The text of this opinion can be corrected before the opinion is published in the  

           Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

           errors to the attention of the Clerk of the Appellate Courts:  



                                          303 K Street, Anchorage, Alaska  99501
  

                                                        Fax:  (907) 264-0878
  

                                             E-mail:  corrections @ akcourts.gov
  



                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



BRENNAN ADAM GRUBB,  

                                                                                   Court of Appeals No. A-13074  

                                            Appellant,                          Trial Court No. 3AN-14-09600 CR  



                                 v.  

                                                                                                 O P I N I O N  

STATE OF ALASKA,  



                                            Appellee.                              No. 2722 - February 25, 2022  

                                                                                                                        



                      Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                     

                      Anchorage, Michael L. Wolverton, Judge.  



                      Appearances:   Renee McFarland, Assistant Public  Defender,  

                                                                                                          

                      and  Samantha  Cherot,  Public  Defender,  Anchorage,  for  the  

                      Appellant.          Donald  Soderstrom,  Assistant  Attorney General,  

                                                                                                            

                      Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  

                                                                                            

                      Attorney General, Juneau, for the Appellee.  



                      Before:         Allard,  Chief  Judge,  and  Wollenberg  and  Terrell,  

                                                             

                                      

                      Judges.  



                      Judge WOLLENBERG.  



                      Brennan Adam Grubb pleaded guilty to one count of second-degree sexual                                          



abuse of a minor after a series of incidents involving nine-year-old M.M.                                                 The superior   



court   ordered   Grubb   to   pay   $216,307.55   in   restitution,   the   majority   of   which  


----------------------- Page 2-----------------------

 compensated M.M.'s mother, T.R., for future lost wages and benefits after she resigned                                                                                                                                                                                                                                



 from her job as a public school teacher to care for M.M.                                                                                                                                                



                                                      Grubb challenges, on a number of grounds, the portion of the restitution                                                                                                                                                                                 



judgment awarding future lost wages and benefits.                                                                                                                                                                Principally, he contends that his                                                                       



 criminal conduct was not the proximate cause of T.R.'s future lost wages and benefits.                                                                                                                                                                                                                                                                    



 Stated differently, he asserts that T.R.'s losses resulted from a number of discretionary                                                                                                                                                                                                          



 decisions that T.R. made and are therefore too attenuated from his criminal conduct to                                                                                     



 be compensable.                                                     



                                                      Because Alaska law establishes that the lost wages and benefits incurred                                                                                                                                                                                         



 under the circumstances of this case are not recoverable in a civil suit, and because                                                                                                                                                                                                                                  



 restitution is not intended to allow for greater recovery in a criminal case than a victim                                                                                                                                                                                                                                



 would otherwise be entitled to recover under tort law, we conclude that the challenged                                                                                                                                                                                                                      



 portion of the restitution order awarding future lost wages and benefits must be vacated.                                                                                                                                                                                                                              



                            Underlying facts and proceedings                                                      



                                                      In October2014,BrennanGrubb wascharged                                                                                                                                            with fivecountsofattempted                                                



 first-degree sexual abuse of a minor for engaging in multiple sexual acts with nine-year-                                                                                                                                                                                                                      



                                          1  

 old   M.M.                                                                                                                                                                                                                                                                                                                            

                                                      Grubb,  who  was  sixteen  years  old  at  the  time  of  the  offenses,  was  



                                                                                                                                                                                                       

 automatically charged as an adult pursuant to AS 47.12.030.  



                                                                                                                                                                                                                                                                                                                                 

                                                      Pursuant to an agreement with the State, Grubb ultimately pleaded guilty  



                                                                                                                                                                                                                                              2 

 to a single count of second-degree sexual abuse of a minor.                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                   The court sentenced him  



                                                                                                                                                                                                                                                                                                                                                           

 to 30 years with 20 years suspended (10 years to serve) and a 10-year term of probation.  



                            1            AS 11.41.434(a)(1) & AS 11.31.100.  



                           2             AS 11.41.436(a)(2).  



                                                                                                                                                                    - 2 -                                                                                                                                                               2722
  


----------------------- Page 3-----------------------

As part of his plea agreement, Grubb also agreed to pay restitution in an amount to be  

                              



determined by the court within ninety days of sentencing.  

                                                                                         



                    Almost a year later, after two extension requests, the State submitted a  

                                                                                                                  



proposed  restitution  judgment  of  $20,700.35  -  which  included  reimbursement  of  

                                                                                                                                



approximately $9,000 to the State of Alaska Violent Crimes Compensation Board for  

                                                                                                                                



payments  to  T.R.,  as  well  as  restitution  of  approximately  $11,000  to  T.R.  for  the  

                                                                                                                



installation  and  maintenance  of  a  security  system  at  her  home  and  M.M.'s  future  

                                                                                                                          



counseling costs. Grubb's attorney filed a partial objection to the proposal, asserting that  

                                                                                                                               



portions of it were too speculative or not compensable in restitution.  The attorney also  

                                                                                                                              



requested an evidentiary hearing.  

                                       



                    Prior to the hearing, the State filed an amended proposal, increasing its  

                                                                                                                                



request from just over $20,000 to a total of $216,307.55.   This amount included the  

                                                                                                                               



restitution previously sought as reimbursement to the Violent Crimes Compensation  

                                                                                                              



Board ($6,575.43 of which compensated T.R. for her salary lost to date, as she had  

                                                                                                                              



scaled back her teaching responsibilities to care for M.M. during the 2014-15 school  

                                                                                                            



year), as well as restitution to T.R. for the home security system($5,233.04), M.M.'s past  

                                                                                                                              



counseling costs ($2,364), and a portion of T.R.'s past lost wages that had not been  

                                                                                                                             



compensated by the Violent Crimes Compensation Board.  The State no longer sought  

                                                                                                                          



restitution for M.M.'s future counseling costs.  

                                                                        



                    The bulk of the amended proposal - $197,038 - was related to a new  

                                                                                                                              



request  for  T.R.'s future   lost  wages  and  benefits:                           $52,144  for  T.R.'s  estimated  

                                                                                                         



diminished future salary and $144,894 for T.R.'s corresponding diminished retirement  

                                                                                                                     



benefits.       Included  with  the  proposed  judgment  was  a  document  prepared  by  T.R.  

                                                                                                                             



outlining how she had calculated her future losses.  

                                                                    



                    At the evidentiary hearing, T.R.testified thatsheresigned fromher position  

                                                                                                                        



as a public school teacher at the end of the 2014-15 school year, after sixteen years of  

                                                                   



                                                              -  3 -                                                         2722
  


----------------------- Page 4-----------------------

 service, so that she could better support M.M.  T.R. testified that, following the abuse,                                                                                                                                                                                                                                                                                                                   



M.M.   was diagnosed with post-traumatic stress disorder, had trouble feeling safe at                                                                                                                                                                                                                                                                                                                                                                 



home,   and   struggled   with   school.     M.M.'s   needs   were   time-consuming,   and   T.R.  



 explained that attending to them often disrupted her teaching and caused her to be late                                                                                                                                                                                                                                                                                                                                                      



 for work.                                         After being reprimanded for tardiness by her supervisor, T.R. ultimately felt                                                                                                                                                                                                                                                                                                                



unable to balance M.M.'s needs with her teaching responsibilities and her own well-                                                                                                                                                                                                                                                                                                                                                   



being.   Although T.R. could have taken a leave of absence instead of resigning, she                                                                                                                                                                                                                                                                                                                                                           



 explained why she chose not to do so:                                                                                                                                                                  she was told that district policies prohibited her                                                                                                                                                                                      



 from pursuing her part-time job as a realtor while on leave, and she would have had no                                                                                                                                                                                                                                                                                                                                                             



control over the time frame of her return or the position to which she returned.                                                                                                                                                                                                                                                                                         



                                                                      T.R.  stated that, at the time of her resignation, she had planned to teach for                                                                                                                                                                                                                                                                                             



 at least four more years, as she would be eligible for basic retirement after twenty years                                                                                                                                                                                                                                                                                                                                           



of service.  According to T.R., her resignation impacted her progress along the school                                                                                                                                                              



district's salary scale, which in turn affected the amount of her retirement benefits. If she                                                                                                                                                                                                                                                                                                                                                    



returned to teaching, she would receive some credit for her previous experience, but she                                                                                                                                                                                                                                                                                                                                                         



would not be restored to her former pay grade.                                                                                                                                                                                                          



                                                                      T.R.  testified that she calculated the amount she was requesting for future                                                                                                                                                                                                                                                                                



lost wages - $52,144 - by estimating the difference between what she believed she                                                                                                                                                                                                                                                                                                                                                               



would have earned over a four-year period if she had not resigned, and what she believed                                                                                                                                                                                                                                                                                                                              



 she would earn over a four-year period if she returned to teaching at a reduced salary and                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                         3  

received a 2.5 percent pay raise each year thereafter.                                                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                 As for her retirement benefits, T.R.  



                                   3                T.R. testified that she used "the most recent contract" that she found online to  



estimate her projected base salary upon return. T.R. explained that she anticipated an annual  

                                                                                                                                                                                                                                       

raise  of  2.5  percent  based  on  information  she  received  from  the  Anchorage  Education  

                                                                                                                                                                                                                                                                                                                             

Association about the average annual salary increase, although she acknowledged that the  

                                                                                                                                                                                                                               

pay scale was sometimes frozen in place.  



                                                                                                                                                                                                                     - 4 -                                                                                                                                                                                                                  2722
  


----------------------- Page 5-----------------------

testified that, had she continued teaching, she would have been able to retire at age forty-                                                                                                                                                                                                                 



two, and - based on her estimate that women in Alaska have an average life expectancy                                                                                                                                                                                                    



of eighty years - she calculated that she "could be losing out on as much as $144,894                                                                                                                                                                                                          



over [her] lifetime."                  



                                                  On cross-examination, T.R. explained why she believed that Grubb should                                                                                                                                                                                 



pay her restitution for lost wages and benefits, stating, "I can say with 100 percent                                                                                                                                                                                                                 



certainty that I left teaching because of Mr. Grubb's actions."                                                                                                                                                                           But she acknowledged             



that nobody forced her to resign and that she had the option of taking a leave of absence                                                                                                                                                                                                            

to care for M.M. instead of resigning.                                                                                                      4  



                                                                                                                                                                                                                                                                                                                       

                                                  At the time of the hearing, T.R. felt that M.M. had improved enough for her  



                                                                                                                                                                                                                                                                                                                    

to return to teaching.  She had applied for a position but, because the school district was  



                                                                                                                                                                     

experiencing layoffs, she did not receive an interview.  



                                                                                                                                                                                                                                                                                                                        

                                                  Grubb'sattorneyopposed theamended proposalon numerous grounds. He  



                                                                                                                                                                                                                                                                                                           

argued, inter alia, that Grubb's conduct was not the proximate cause of T.R.'s future  



                                                                                                                                                                                                                            

losses and that her future losses were too speculative to be compensable.  



                                                                                                                                                                                                                                                                                                         

                                                  The  superior  court  rejected  Grubb's  challenges  and,  crediting  T.R.'s  



                                                                                                                                                                                                                                                                                               

calculations and testimony, entered a judgment of restitution in the full amount requested  



                         

by the State.  



                                                                                                                                

                                                  Grubb now appeals.  



                         4            T.R. testified that she had a shared custody arrangement with M.M.'s father such   



that they alternated weeks of having M.M. in their care. According to T.R., M.M. continued                                                                                                            

attending school after the incident with Grubb and was never home-schooled.                                                                                                                                                                                                                 After T.R.  

resigned from her teaching position, T.R. made herself available to M.M. as needed; for                                                                                                                   

example, she would have lunch with him and "tried to spend a lot of time in [his] classroom."                                                                                                                                                



                                                                                                                                                         -  5 -                                                                                                                                                   2722
  


----------------------- Page 6-----------------------

                                Why   we   vacate   the   restitution   judgment   and   remand   for   entry   of   an  

                               amended judgment that does not include T.R.'s estimated future wage and                                                                                                                                                                                                                                             

                               benefit losses   



                                                            On appeal, Grubb raises a number of challenges to the portion of the                                                                                                                                                                                                                                                  



 restitution judgment awarding $197,038 to T.R. for her future lost salary and benefits.                                                                                                                                                                                                                                                                                                               



                                                            Chief among Grubb's challenges to T.R.'s lost wages and benefits are                                                                                                                                                                                                                                                   



 Grubb's contentions that these losses were too speculative to be compensable - and                                                                                                                                                                                                                                                                                              



 that, although the trial court could properly find that Grubb's conduct was the "but for"                                                                                                                                                                                                                                                                                      



 cause   of   T.R.'s  losses,   the   trial   court   failed   to   properly   evaluate   whether   Grubb's  



 criminal conduct was the legal cause (                                                                                                                               i.e., the proximate cause) of the particular losses                                                                                                                                              



 challenged.   Grubb also argues that the trial court failed to consider whether the award                                                                                                                                                                                                                                                                            



 to T.R. for future losses should be offset by the mitigating effect of T.R.'s real estate                                                                                                                                                                                                                                                                              



 earnings and reduced to present value.  Finally, Grubb asserts that, in the event T.R.'s                                                                                                                                                                                               



 future lost wages and benefits are validly subject to a restitution order under state law,                                                                                                                                                                                                                                                                                   



 this portion of the restitution judgment violates the prohibition on excessive fines under                                                                                                                                                                                                                                                                              

 the United States and Alaska Constitutions.                                                                                                                                                       5  



                                                                                                                                                                                                                                                                                                                                                        

                                                            Alaska's  restitution  statutes  provide  that,  unless  a  victim  declines  



                                                                                                                                                                                                                                                                                                                                                                                    

 restitution, a court shall order restitution for the actual damages or loss caused by the  



                                                                                                                                                                                                                                      6  

                                                                                                                                                                                                                                                                                                                                     

 conduct  for  which  the  defendant  was  convicted.                                                                                                                                                                                               In  particular,  AS  12.55.045(a)  



                                                                                                                                                                                                                                                                                                                                                                    

 authorizes restitution, as a direct component of a sentence, "to the victim or other person  



                               5             U.S. Const. amend. VIII; Alaska Const. art. I, § 12.   



                               6             See  AS 12.55.045;  Welsh v. State, 314 P.3d 566, 567-68 (Alaska App. 2013)                                                                                                                         



 (recognizing  that,  under  Alaska's   restitution  statutes,  restitution  "should  be  assessed  

 according to the damages or loss arising from the defendant's crime");                                                                                                                                                                                                                                       see also Peterson v.  

Anchorage , 500 P.3d 314, 317 (Alaska App. 2021) (reversing restitution judgment because  

 of the absence of "any indication in the record that the losses were caused by [defendant]'s                                                                                                                                                                                                                                            

 criminal conduct, as opposed to her negligence").  



                                                                                                                                                                                       -  6 -                                                                                                                                                                                  2722
  


----------------------- Page 7-----------------------

                                                 7  

injured   by   the   offense[.]"     And   AS   12.55.100(a)(2)(B)   authorizes   restitution,   as   a  



condition of probation, "to aggrieved parties for actual damages or loss caused by the                                                                     



                                                                         8  

crime for which conviction was had[.]"                                      



                                                                                                                                                

                         The purpose of the restitution statutes is to "make full restitution available  



                                                                                                                                                  

to all persons who have been injured as a result of criminal behavior, to the greatest  



                               9  

                                                                                                                                                     

extent possible."                   At the same time, because restitution is intended to allow crime  



                                                                                                                                                  

victims and others who have suffered losses as a result of a defendant's criminal conduct  



                                                                                                                                                        

to recover monetary damages that would otherwise be subject to recovery only in a civil  



                                                                                                                                                           

suit, we have recognized that a person injured by a defendant's criminal conduct may not  



                                                                                                                                                             10  

                                                                                                                                                                  

recover more than the person could recover in a civil case based on the same conduct. 



                                                                                                                                                           

Indeed, the legislature has declared that a restitution order is "a civil judgment for the  



            7      By   statute,  T.R.  -  as  M.M.'s  mother  -   qualifies  as  a  "victim."    AS  12.- 



55.185(19)(B) (defining "victim," for purposes of sentencing, as including a parent of the                                                                 

direct victim, if the direct victim is a minor).   



            8     At the time of Grubb's offense, this provision was codified at AS 12.55.100(a)(2).  

                                            



            9     Ned v. State, 119 P.3d 438, 446 (Alaska App. 2005) (quoting Lonis v. State , 998  

                                                                                                                                                          

P.2d 441, 447 n.18 (Alaska App. 2000)); see also Alaska Const. art. I, § 24 (providing that  

crime victims have "the right to restitution from the accused").  



             10   Ned, 119 P.3d at 446-47.  We have not previously held that the recovery available  

                                                                                                                                                 

in restitution is entirely coextensive with recovery available in tort, nor do we purport to do  

                                                                                          

so here.  For instance, although criminal restitution is limited by the damages available in a  

                                                                                                                  

civil case, in that a victim in a criminal case cannot recover restitution greater than what is  

                                               

available under tort law, a plaintiff in a civil suit may be entitled to additional damages -  

                                                                                                

such  as  punitive  damages  -  that  go  beyond  the  actual  loss  or  damages  that  would  be  

                                                       

recoverable as restitution in a criminal case.   See Noffsinger v. State, 850 P.2d 647, 650  

                                                                                   

(Alaska  App.  1993)  (differentiating  criminal  restitution  from  civil  liability  on  several  

                                                                                                                                             

grounds, including that criminal restitution is limited by actual damages and losses).  



                                                                            -  7 -                                                                      2722
  


----------------------- Page 8-----------------------

amount of restitution" that can be enforced "through any procedure authorized by law   



                                                                                                          11  

for the enforcement of a civil judgment."                                                                       



                                                                                                                                                                                                   

                                  Accordingly,  we  employ  a  test  of  proximate  causation  in  evaluating  



                                                                                                                                                                                                                           12  

                                                                                                                                                                                                                                  

                                                                                                                                                                                                     

restitution claims in criminal cases - the same test for causation used in civil lawsuits. 



As we explained in Ned v. State, "if a defendant's liability for restitution extended to any  

                                                                                                                                                                                                                      



and all expenses that could be traced causally to the defendant's wrongful act - then the  

                                                                                                                                                                                                                        



scope of restitution in a criminal case would exceed the scope of damages that could  

                                                                                                                                                                                                                

lawfully be awarded in a [civil] lawsuit based on the same conduct."13  

                                                                                                                                                                                       



                                                                                                                                                                                                       

                                   Thus, in order to obtain a restitution order for particular losses or damages,  



                                                                                                                                                                                                           

the State must establish two facets of causation:  (1) that a defendant's criminal conduct  



                                                                                                                                                                                                                   

was a cause-in-fact (a "but for" cause) of the losses incurred, and (2) that the losses were  



                                                                                                                                                                                                                         

a natural and proximate result of the criminal conduct to which liability should attach -  



                                                                                                                                                                                                             

i.e., that the losses were not so attenuated  from the wrongful conduct as to negate  



                  11      AS 12.55.045(l); see also Hodges v. State                                                                , 158 P.3d 864, 865-66 (Alaska App.  



2007) (recognizing that restitution is no longer statutorily limited by a defendant's ability to                                                                                                                           

pay and that, in eliminating the court's ability to consider a defendant's ability to pay in                                                                                                                              

setting restitution, "the legislature wanted to carry out the policy of making restitution orders                                                                  

the equivalent of a civil judgement entered against the defendant in favor of the victims").   



                  12      See Ned, 119 P.3d at 446.  



                  13      Id.  



                                                                                                         -  8 -                                                                                                     2722
  


----------------------- Page 9-----------------------

                        14  

responsibility.               Stated differently, the State needed to show that Grubb's criminal                                   



                                                                                                                           15  

conduct was a "substantial factor" in bringing about the damages sought.                                                        



                                                                                                                                              

                       Grubb does not contest that his criminal conduct was the cause-in-fact of  



                                                                                                                                           

T.R.'s resignation (and the losses that she incurred as a result).  But, as we noted, it was  



                                                                                                                                          

not enough for the State to show that, but for Grubb's conduct, T.R. would not have  



                                                                                                                                    

resigned from her job or incurred certain future losses.  As we declared in Ned, "[S]ome  



                                                                                                                                            

expenses are simply  too  indirectly  related  to  the wrongful  [conduct] to  qualify  for  



                            16  

reimbursement."                                                                                                                             

                                Thus, in Ned, we held that the travel costs of all family members and  



                                                                                                                                             

friends to attend the victim's funeral - while "real and verifiable" and undoubtedly the  



                                                                                                                                         

"but for" result of the defendant's act of homicide - were not a "sufficiently direct result  



                                                                                     17  

                                                                  

of the defendant's crime to qualify for restitution." 



                                                                                                                                     

                       The question we must confront here is whether Grubb's criminal conduct  



                                                                                                                                     

is the proximate cause of T.R.'s future lost wages and retirement benefits - i.e., whether  



            14   See id.; see also Paroline v. United States, 572 U.S. 434, 446, 449-50 (2014)  



                                                                                               

(recognizing that "[p]roximate cause is a standard aspect of causation in criminal law and the  

            

law of torts" and discussing the need for the government to establish both causation-in-fact  

and proximate causation with respect to a federal restitution statute); Howarth v. State, Pub.  

Def. Agency , 925 P.2d 1330, 1333 (Alaska 1996) (explaining that "legal cause encompasses  

two concepts" - actual ("but for") causation and causation grounded in legal policy, which  

                                                                                                            

asks "whether the conduct has been so significant and important a cause that the defendant  

should be legally responsible" (internal quotations and citations omitted)).  



            15   See State v. Malone, 819 P.2d 34, 36 (Alaska App. 1991) ("A criminal defendant  



can be held responsible only for injuries that 'result from' or are 'caused by' his conduct.  

                                                

But the defendant's conduct need not be the sole factor in producing the injury.  Rather, the  

                                                                                                                                 

test is whether  the  defendant's conduct was a 'substantial factor' in bringing about the  

                                                                              

result.").  



            16   Ned, 119 P.3d at 446.  



            17   Id. at 446-47.  



                                                                     -  9 -                                                               2722
  


----------------------- Page 10-----------------------

these losses were a reasonably foreseeable consequence of Grubb's criminal conduct, or                                                                             



whether those losses are too attenuated from Grubb's conduct to satisfy the test of legal                                                                    

causation.18  



                                                                                                                                                        

                          We have previously recognized that Alaska law permits victims to recover  



                                                                                                                       19  

                                                                                                                                                                 

                                                                                                                            At the same time, we  

for income lost as a result of a defendant's criminal conduct. 



                                                                                                                                                     

have been more cautious about restitution awards based on estimates of losses projected  



                                                                                                                                                     

to occur in the future.  For example, although we have recognized the court's authority  



                                                                                                                                               

to award restitution for the costs of future counseling resulting from a defendant's  



                                                                                                                                                       

criminal  conduct,  we  have  said  that  there  must  be  evidence  in  the  record  "firmly  



                                                                                                                      20  

                                                                                                                                                    

establish[ing]" the need for, and the amount of, such expenses.                                                            Here, T.R.'s estimated  



             18    Cf.  Johnson  v.  State,  224  P.3d  105,   111  (Alaska  2010)  ("A  defendant  is  



responsible  for  the  natural  consequences  of   his  or  her  act  or  failure  to  act.    Natural  

consequences  are  those  reasonably   foreseeable  in  light  of   ordinary   experience.    The  

defendant need not have foreseen the specific manner of resulting harm so long as (1) the                                              

general type of harm was foreseeable, and (2) the actual harm falls within the scope of risk                                                                    

hazarded by the defendant's conduct and is not too remote or accidental in occurrence.").  



             19    See, e.g.,  W.S. v. State, 174 P.3d 256, 258-59 (Alaska App. 2008) (upholding  

                                                                                                                                      

award of restitution to child victim's aunt - who was the victim's custodian - for the past  

                                                                                   

hours she missed from work to care for the victim following the charged assault); see also  

                                                                                              

Yannello v. State, 2014 WL 1691542, at *3 (Alaska App. Apr. 23, 2014) (unpublished)  

(upholding award of restitution to assault victim for wages he lost while he was physically  

                                       

unable to work and to the victim's parents for the cost of their flight to Alaska to care for him  

                                                                                                       

in the immediate aftermath of the assault).   

                                                         

                   Since the time of Grubb's offense in the summer of 2014, the legislature has  

                                                                                                                                    

amended the restitution statute, AS 12.55.045, to include express references to a victim's lost  

income.  See SLA 2015, ch. 17, §§ 1-3.  These provisions apply to an order of restitution for  

                                                                                                                                              

an offense committed on or after the effective date of August 9, 2015.  



             20    See Lawrence v. State, 764 P.2d 318, 322 (Alaska App. 1988) (expressing concern  



about "the problem of awarding restitution for unliquidated damages which arose from the  

                                                                                                                                                                 

offense" and expressing the need for the amounts of such losses to be "firmly established");  

                                                                                                                                              

                                                                                                                                             (continued...)  



                                                                             -  10 -                                                                         2722
  


----------------------- Page 11-----------------------

future wage and benefits are more attenuated from Grubb's criminal conduct, as the                                                                                                                      



losses   were   occasioned   by   T.R.'s   consequent   decision   to   resign   from her                                                                                                        teaching  



position.    



                                 The Alaska Supreme Court -applying the same proximate cause standard                                                                                              



that we apply to restitution claims - has held that these types of losses, which hinge on                                                                                                                        



a   sense   of   personal  obligation   that   is   difficult   to   quantify,   are   too   uncertain   and  



attenuated from the underlying harm to be compensable in a civil suit.                                                                                                          



                                 In   Heritage   v.   Pioneer  Brokerage   &   Sales,   Inc.,   the   supreme   court  



considered whether, in a civil lawsuit, a husband could recover wages lost as a result of                                                                                                                         



his decision to provide nursing care to his injured wife after she was exposed to toxic                                                                                                                    



                                                                                                            21  

fumes in a mobile home they had purchased.                                                                                                                                                         

                                                                                                                  The husband asserted that he had suffered  



                                                                                                                                                                                                                

economic losses because he left a lucrative job on the North Slope for a lesser-paying job  



                                                                                                                                                                                                     

in Juneau to provide medical and psychological care to his wife, who suffered a variety  



                                                                                          22  

                                                                                                                                                                                                                

                                                                                                But the supreme court rejected the notion that the  

of medical problems from the fumes. 



                                                                                                                                                                 

plaintiffs were entitled to recovery of the husband's lost wages.  



                                                                                                                                                                                                                  

                                 In reaching its conclusion, the court distinguished the circumstances in  



                                                                                                                                                                                                

Heritage from its earlier decision in State v. Stanley, where the court upheld an award  



                                                                                                                                                                                        23  

                                                                                                                                                                                                          

of lost income to a fisherman whose vessel was damaged by the defendant.                                                                                                                       The court  



                 20      (...continued)  



see also Peratrovich v. State, 903 P.2d 1071, 1078 (Alaska App. 1995) (recognizing that,  

                                                                                   

under the restitution statute, a defendant may be required to compensate the victim for future  

                                                                                                                                                                                                  

counseling expenses, but explaining that restitution for such expenses "must be based on  

                                                                                                                                       

substantial evidence of monetary loss or expense, not mere speculation").  



                 21      Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059, 1060 (Alaska 1979).  

                                                                                                         



                 22      Id. at 1064.  



                 23      Id. (discussing State v. Stanley, 506 P.2d 1284, 1293 (Alaska 1973)).  



                                                                                                    -  11 -                                                                                                 2722
  


----------------------- Page 12-----------------------

noted that, unlike the plaintiff in                               Stanley, the husband in                         Heritage   was not                 directly  



                                                                                                                                                  24  

prevented from pursuing the more lucrative employment on the North Slope.                                                                              



                                                                                                                                                             

                         Moreover, the court held that "[e]ven if [the husband]'s job change was  



                                                                                                                                                  

directly occasioned by the injury to his wife from the defective mobile home, "recovery  



                                                          25  

                                                                                                                                                    

                                                               In particular, the court held that the economic damages  

of his lost wages is foreclosed." 



                                                                                                                                                       

caused by a spouse's decision to switch jobs in order to care for their injured spouse  



                                                                              

were too attenuated from the underlying harm:  



                                                                                                                              

                         We are not persuaded that damages based on this . . . theory  

                                                                                                                                 

                          should be awarded, however, since a determination of when  

                                                                                                                                      

                         the support of a close family relationship is necessary to the  

                                                                                                                        

                         medical and psychological comfort of the injured individual  

                                                                                                                                 

                         is  always  an  uncertain  inquiry,  and  the  extent  of  such  

                                                                                                                                    

                         damages  attributable  to  an  injury  is,  in  our  view,  too  

                                                                                                                                    

                          speculative to be made part of the general recovery of tort  

                         victims.[26]  



                                                                                                                                                                 

                         The supreme court reaffirmed this principle more recently in Glamann v.  



          27  

Kirk.                                                                                                                     

               In Glamann, the court held, based on Heritage, that the wage losses caused by  



                                                                                                                                                              

a wife's decision  to  transport her  husband  to  his  medical appointments after  a car  



                                                                                                                                               28  

                                                                                                                                                          

accident were not compensable in a lawsuit based on the driver's negligence.                                                                        In doing  



                                                                                                                                                          

so, the court reiterated its previous holding in Heritage that "a determination of when  



             24    Id.  



             25    Id.  



             26    Id.   at 1065.   The court also noted its concern about the possibility of "double                                                 



recovery," recognizing that while an injured plaintiff is entitled to recover the reasonable                               

costs of home nursing care, a family member who elects to provide this care is not also                                                                      

entitled to recover earnings lost as a result of that decision.  Id. at 1064-65.  



             27    Glamann v. Kirk, 29 P.3d 255 (Alaska 2001).  



             28    Id. at 264-65.  



                                                                            -  12 -                                                                         2722
  


----------------------- Page 13-----------------------

support is necessary in a close family relationship is 'too speculative to be made part of                                                                       



                                                                        29  

the general recovery of tort victims.'"                                     



                                                                                                                                                                

                         A majority of courts appear to have reached a similar conclusion.                                                                      In  



                                                                                                                                                  

Hutchings v. Childress, for example, the Ohio Supreme Court stated that it was following  



                                                                                                                                                          

the majority rule when it rejected a damages claim for income lost by a husband while  



                                                                           30  

                                                                                                                                                  

caring for his wife, the injured plaintiff.                                    The court held that "[d]amages are measured  



                                                                                                                                                     

not by the lost income of the supporting spouse but by the market value of the services  



                                   31 

                   

he or she renders"                    :  



                                                                                                                                       

                         A  spouse's  choice  to  take  a  break  from  employment  to  

                                                                                                                     

                         provide care is only indirectly attributable to a tortfeasor's  

                                                                                                                                 

                         actions. That choice is caused by a sense of obligation rather  



                                                                 [32]  

                                                

                         than by the accident. 



                                                                                                                                                           

The  court  characterized  the  issue  as  "one  of  causation  and  foreseeability":                                                                      "[A]  



                                                                                                                                                          

tortfeasor would expect to pay the market rate for the care provided to the injured party,  



                                                                                                                     33 

                                                                                                   

 [but] not the wages of a stockbroker who provided that care."    Because the plaintiffs  



                                                                                                                                                              

in Hutchings had not sought to introduce any evidence of the economic value of the  



             29    Id. at 265 (quoting Heritage, 604 P.2d at 1065).  The court implicitly rejected the   



plaintiff's suggestion that his wife's lost wages should be recoverable because they could                                                                

have been reframed in terms of his own costs for transportation to his medical appointments.   

Id. at 264-65.  



             30  

                                                                      

                   Hutchings v. Childress, 895 N.E.2d 520 (Ohio 2008) (citing 2 Jacob A. Stein, Stein  

                                                          

on Personal Injury Damages § 7:11, at 7-30 (3d. ed. 1997)).  



             31    Id. at 521.  



             32    Id. at 526.  



             33    Id.  



                                                                            -  13 -                                                                         2722
  


----------------------- Page 14-----------------------

nursing care the husband provided but framed their request solely in terms of lost wages                                                        

incurred by the husband in providing that care, the court rejected the wife's claim.                                                              34  



                                                                                                                                                    

                        Grubb's case presents the same issue that confronted the Heritage  and  



                                                                                                                                                       

Hutchings courts - i.e., whether a defendant can fairly be held liable for wages lost as  



                                                                                                                                                            

a result of an individual's decision to resign from work to care for a family member.  



                                                                                                                                         

T.R. resigned from her position as a public school teacher in order to provide emotional  



                                                                                                                                                   

support for her son.   While T.R.'s decision to resign in order to care for M.M. was  



                                                                                                                                                     

certainlyunderstandable, and thetrial courtreasonably credited T.R.'s testimony that her  



                                                                                                                                                      

decision was driven by the substantial impact of Grubb's criminal conduct on M.M., we  



                                                                                                                                                     

conclude that T.R.'s decision involved too many indeterminate variables to render the  



                                                                                                            

resulting wage and benefit losses recoverable as a matter of law.  



                                                                                                                                             

                        For instance, T.R.'s projected wage and benefit losses hinged on a number  



                                                                                                                                                     

of factors unconnected to Grubb's conduct - for example, the flexibility of her job, her  



                                                                                                                                                    

supervisor's diminished willingness to accommodate her scheduling needs, and her  



                                                                                                  35  

                                                                                                                                                    

decision to resign rather than take a leave of absence.                                                T.R. acknowledged that her  



                                                                                                                                                   

supervisor initially afforded her some flexibility in the mornings by allowing her to drop  



                                                                                                                                                  

her first class, but eventually "[t]here was very little support at [her] job . . . for [her]  



                                                                                                                                                       36  

                                                                                                                                                            

situation," and she felt she "couldn't be there for [M.M.]," her students, and herself. 



                                                                                                                                                       

While T.R. no doubt made decisions that she felt best for her and her son, those types of  



            34    Id.   



            35  

                                                                                                                                                        

                  According to T.R., her husband told her that they would be secure financially if  

                                                                                                                                                      

she left her teaching position. T.R. also testified that she continued to make money from her  

separate work as a real estate agent.  



            36  

                                                                                                               

                  T.R. testified that she would only return to teaching if she were offered the right  

                                                                                                                                     

position - a position in which she would both be beneficial to the program and have the  

flexibility to still address M.M.'s needs.  



                                                                        -  14 -                                                                   2722
  


----------------------- Page 15-----------------------

personal decisions hinge on indeterminate factors and preferences that make assigning                                                



legal damages an inherently uncertain task.  And the Alaska Supreme Court has made   



clear that determining the extent of such damages is "too speculative" to be made part     



                                                                  37  

                                                                                                                                             

of the general recovery of tort victims.                               We likewise conclude that T.R.'s losses were  



                                                                                                                                                  38  

                                                                                                                                 

"too speculative" and attenuated from Grubb's conduct to be made part of restitution. 



                                                                                                                                                

                       The difficulty of calculating potential losses far into the future supports this  



                                                                                                                                              

conclusion. While the State argues that T.R. was a tenured teacher four years away from  



                                                                                                                                            

retirement under a defined benefit plan established by statute, such that her future losses  



                                                                                                                                        

were  ascertainable,  her  testimony  during  the  hearing  suggests  that,  even  so,  she  



                                                                                                                                      

encountered difficulties in estimating her projected future earnings.   Other similarly  



                                                                                                                                   

situated parents may be in even less quantifiable situations.  And it is not reasonably  



                                                                                                                                                   

foreseeable  that a defendant would  have to  bear  the costs of diminished  pay  for  a  



                                                                                                                                 

caretaker, particularly when the loss of income is extreme as in the case of a particularly  



                                                                                                                                                 

high-paying job.  Indeed, the award of restitution in a case might hinge on whether the  



                                                                                                                                                       

victim had a relative who was in a position to take an extended leave from work at all.  



                                                                                                                                             

                       The State argues that it is foreseeable that an abuse victim's need for extra  



                                                                                                                                           

support and care would result in financial hardship for the family and that a parent  



            37   Heritage v. Pioneer Brokerage & Sales, Inc.                             , 604 P.2d 1059, 1065 (Alaska 1979).  



            38  

                                                                                                                                        

                 Other courts have reached a similar conclusion in the restitution context. See State  

v. Baker, 177 A.3d 1093, 1098, 1103-04 (Vt. 2017) (reversing a restitution award for wages  

                                                                                                 

lost by a husband after he left work to travel to the scene of his wife's car accident; the court  

held that the husband's decision to leave work to deal with the non-immediate repercussions  

                                                                                                                             

of the defendant's crime was not a reasonably foreseeable consequence of the defendant's  

negligent vehicle operation); see also Wiredu v. State, 112 A.3d 1014, 1024 (Md. App. 2015)  

                                                                                                                                                   

(holding that restitution for wages lost by a wife in caring for her husband - the victim of  

                                                                  

the defendant's assault - was improper under Maryland statute and declining State's request  

                                                                                                              

on appeal to reframe restitution request for lost wages as medical expenses incurred while  

wife was caring for her husband).  



                                                                      -  15 -                                                                2722
  


----------------------- Page 16-----------------------

leaving their job to care for their child is not highly extraordinary. But ultimately, while  

                                                                                                                           



T.R. made an understandable decision to leave her job, she acknowledged that this  

                                                                                                                             



decision was voluntary, and our law does not allow for compensation for lost financial  

                                                                                                                      



benefits under these circumstances.  

                                                       



                    We therefore reverse that portion of the restitution order attributable to  

                                                                                                                                



T.R.'s future lost wages and retirement benefits resulting from her resignation. Because  

                                                                                                                       



T.R.'s future lost salary and benefits were not compensable under Alaska law, we need  

                                                                                                                            



not reach Grubb's other challenges to the award of these costs - including that the  

                                                                                                                              



award violates the constitutional prohibition on excessive fines, and that T.R. had a legal  

                                                                                                                            



duty to mitigate her losses if she wished to recover for them.  

                                                                                    



          Conclusion  



                    We VACATE the restitution judgment and REMAND to the superior court  

                                                                                                                            



to enter a revised restitution judgment consistent with this decision.  Those portions of  

                                                                                                                                



the restitution order that Grubb did not contest remain in place.  

                                                                                       



                                                             -  16 -                                                        2722
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC