State v. Davis

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

JOHN LEO DAVIS, Petitioner.

No. 1 CA-CR 24-0457 PRPC
FILED 05-20-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2015-114088-001
The Honorable Suzanne E. Cohen, Judge

REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN
PART

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Casey Hutchinson, Jason Easterday
Counsel for Respondent

Debrigida Law Offices, PLLC, Glendale
By Ron M. Debrigida, Jr.
Counsel for Petitioner

OPINION

Judge Samuel A. Thumma delivered the opinion of the Court, in which
Judge Angela K. Paton joined. Presiding Judge Kent E. Cattani dissented in
part.
 STATE v. DAVIS
Cattani, J., dissenting in part

T H U M M A, Judge:

¶1 John Leo Davis seeks review of the superior court’s summary
dismissal of his post-conviction relief (PCR) petition filed under Arizona
Rule of Criminal Procedure 33 (2026).1 For the reasons that follow, this court
grants review and grants relief in part and denies relief in part.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2015, Davis repeatedly stabbed his wife M.D. in
their Goodyear home, where they lived with their six minor children. M.D.
died from the stab wounds. Davis was charged with first degree murder,
child abuse and related offenses.

¶3 Maternal grandparents paid for M.D.’s funeral and burial
expenses. They cared for the children, including paying to move them to
California and adopt them. Maternal grandparents also paid various
probate expenses relating to M.D. and her estate. In mid-2015, maternal
grandparents, “as victim representatives for” the victim children
(collectively “victims”), obtained unopposed restitution liens on Davis’
Maricopa County real estate. See Ariz. Rev. Stat. (A.R.S.) § 13-806(A).

¶4 In January 2020, Davis pled guilty to second degree murder.
In the plea agreement, he agreed to “pay restitution to all victims . . . for all
economic losses . . . in an amount not to exceed $10,000,000.00.” In April
2020, the court sentenced Davis to prison for 25 calendar years. The court
retained jurisdiction over restitution.

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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 STATE v. DAVIS
Cattani, J., dissenting in part

¶5 The victims filed a timely motion for restitution that, as
relevant here,2 sought the following:

Category of Restitution Sought Amount Sought

Costs of raising the six children, based on an $982,515
evaluation provided for the costs to raise each of
the children until they turned 20 years old.

Estate and children’s expenses from March to $14,179
December 2015.

Probate attorneys’ fees. $40,469.15

Legal fees for custody and adoption of the $19,801.56
children.

¶6 The court held a restitution hearing in October 2020. Davis
did not contest the method used “to project the estimated future costs for
what raising the children would be” and, for the other categories of
restitution sought, conceded the victims “actually paid those expenses or
are expected to pay those expenses.”3 Davis argued the amounts sought
were not “economic loss” recoverable as restitution under A.R.S. § 13-
105(16) but, instead, were “consequential damages expressly precluded as
restitution.” The victims countered that the requested amounts would not
have been incurred but for the crime, were incurred as a direct result of the
crime and were recoverable economic losses.

2 The victims also sought $12,087.04 in funeral expenses and $2,427.08 in

moving expenses, which Davis did not contest and were awarded by the
superior court. To the extent Davis seeks to challenge the moving expense
award now, he waived that challenge. See Odom v. Farmers Ins. Co. of Ariz.,
216 Ariz. 530, 535 ¶ 18 (App. 2007). The superior court rejected a restitution
claim for nearly $2,100 in estate fiduciary fees, which is not at issue here.

3 To the extent Davis now argues the restitution amounts sought were

“estimates” or should have been “recompute[d],” he waived those
arguments. See Odom, 216 Ariz. at 535 ¶ 18. Similarly, Davis did not
challenge how the amounts were calculated.

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 STATE v. DAVIS
Cattani, J., dissenting in part

¶7 After receiving documentary evidence, but taking no
testimony, the court ordered Davis to pay the four categories of requested
restitution listed above. In October 2020, the court awarded the victims a
total of $1,071,479.61 in restitution.

¶8 In January 2021, Davis filed a notice of post-conviction relief.
After several extensions, and appointment of counsel, in November 2023,
Davis filed a timely petition for post-conviction relief, claiming the
“restitution portion of the sentence imposed was not authorized by law or
the plea agreement,” asserting the court ordered restitution for amounts
that are “clearly consequential.” See Ariz. R. Crim. P. 33.1(c) (noting
grounds for relief for a PCR petition include that “the sentence as imposed
is not authorized by law or by the plea agreement”).

¶9 After considering Davis’ petition, responses by the State and
the victims, Davis’ reply and other filings, the court dismissed the petition.
The court found Davis failed to state a colorable claim entitling him to post-
conviction relief under Rule 33. The court concluded the State had proved
by a preponderance of the evidence the restitution awarded, and that the
restitution awarded constituted economic loss, not consequential damages.
Davis timely filed a petition for review to this court. This court permitted
both Davis and the State to supplement their briefs to address the impact of
E.H. v. Slayton, 259 Ariz. 472 (2025), which was decided when this matter
was pending before this court.

DISCUSSION

¶10 Summary dismissal of a PCR petition is appropriate if it
presents no “material issue of fact or law that would entitle the defendant
to relief.” Ariz. R. Crim. P. 33.11(a). This court reviews the summary
dismissal of a PCR petition for an abuse of discretion. State v. Bennett, 213
Ariz. 562, 566 ¶ 17 (2006). Davis contends the restitution awarded was
contrary to law and his plea agreement because: (1) the restitution ordered
was not supported by a preponderance of the evidence; (2) the court
misapplied the law in awarding the categories of restitution and (3) the
court erred in failing to hold an evidentiary hearing.

I. Davis Waived His Argument that the Restitution Awarded Was
Not Proven by a Preponderance of the Evidence.

¶11 Davis seeks to challenge the finding that the State proved the
restitution by a preponderance of the evidence. Davis’ petition in the
superior court, however, did not press this ground. Accordingly, this
argument is waived. See, e.g., A.R.S. § 13-4239(C); Ariz. R. Crim. P.

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 STATE v. DAVIS
Cattani, J., dissenting in part

33.16(c)(4); State v. Bortz, 169 Ariz. 575, 578 (App. 1991) (citing cases); State
v. Wagstaff, 161 Ariz. 66, 71 (App. 1988). Moreover, the record shows that
the restitution awards were proven by a preponderance of the evidence.

II. Davis Has Shown No Error in the Restitution Awards.

¶12 Davis argues the restitution awards “are clearly
consequential, and did not flow directly from [Davis’] conduct.” By statute,
“the court shall require the convicted person to make restitution to the
person who is the victim of the crime or to the immediate family of the
victim if the victim has died, in the full amount of the economic loss as
determined by the court and in the manner as determined by the court or
the court’s designee.” A.R.S. § 13-603(C) (emphasis added); see also A.R.S. §
13-804(B) (“In ordering restitution for economic loss . . . , the court shall
consider all losses caused by the criminal offense or offenses for which the
defendant has been convicted.”). As further defined by statute:

“Economic loss” means any loss incurred by a
person as a result of the commission of an
offense. Economic loss includes lost interest,
lost earnings and other losses that would not
have been incurred but for the offense.
Economic loss does not include losses incurred
by the convicted person, damages for pain and
suffering, punitive damages or consequential
damages.

A.R.S. § 13-105(16). In the appropriate circumstances, restitution “includes
losses incurred after sentencing.” State v. Morgan, 248 Ariz. 322, 327 ¶ 17
(App. 2020) (citation omitted). Mechanically, restitution “shall be paid to
the clerk of the court for disbursement to the victim.” A.R.S. § 13-603(C).
The victim also may press a civil claim to recover other amounts, such as
for pain and suffering, consequential damages and punitive damages. See
A.R.S. § 13-807; accord Town of Gilbert Prosecutor’s Off. v. Downie ex rel. Cnty.
of Maricopa, 218 Ariz. 466, 469 ¶ 14 (2008) (citing authority).4

4 The option of pressing a separate civil lawsuit does not, as Davis infers,

displace the ability to seek criminal restitution.

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 STATE v. DAVIS
Cattani, J., dissenting in part

¶13 The Arizona Supreme Court repeatedly has declared that
“restitution should be ordered for losses that (1) are economic; (2) would
not have been incurred by the victim but for the criminal offense; and (3)
were directly caused by the criminal conduct.” E.H., 259 Ariz. at 381-82 ¶
11 (citations omitted); State v. Reed, 252 Ariz. 328, 330 ¶ 9 (2022) (same); State
v. Wilkinson, 202 Ariz. 27, 29 ¶ 7 (2002) (similar). This standard, often called
the Wilkinson test, applies here. Davis has shown no error because the
restitution amounts meet all three elements of the Wilkinson test.

A. Future Costs of Raising the Children.

¶14 Davis argues the restitution award for the costs of raising the
children was error because “the majority of the claims are for future
expenses.” However, “future economic losses, including lost earnings, can
be awarded as restitution if they satisfy the Wilkinson test.” E.H., 259 Ariz.
at 382 ¶ 14; accord State v. Howard, 168 Ariz. 458, 459-60 (App. 1991)
(affirming restitution order for future medical care and future lost wages;
noting “restitution for economic losses of the victim yet to be incurred at
the time of sentencing” is proper if “reasonably anticipated to be incurred
in the future as a result of the defendant’s actions”).

¶15 The superior court found the “future cost[s] of raising the
children . . . are actual losses rather than consequential damages” because
they were foreseeable or a natural consequence of Davis murdering his
wife. Before the murder, Davis and his wife were legally obligated to pay
the expenses involved in raising the children until they turn 18 years old.
See Savage v. Thompson, 22 Ariz. App. 59, 62 (1974). Given Davis’ crime, his
wife was killed and Davis was sentenced to prison until long after the
children will become adults. As the superior court noted, after the murder,
the children were “without parents” and “[s]omeone has to raise” them.
Although noting that maternal grandparents “made a choice to adopt and
raise their grandchildren,” the court added that “it is foreseeable that a
family member would rise to the occasion” to raise them.

¶16 Davis argues “[t]he costs inherent in raising children existed
in this case independent of the homicide, but the victim representative’s
decisions to seek and accept legal responsibility for these costs are
intervening causative factors.” Wilkinson, the authority relied on by Davis
in making this argument, does not support his assertion.

¶17 In Wilkinson, the defendant’s crime was falsely representing
himself as a licensed contractor when entering into a contract to remodel
homes. 202 Ariz. at 29 ¶ 9. The court affirmed an award of restitution to the

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 STATE v. DAVIS
Cattani, J., dissenting in part

victims for the amounts they paid under their agreements with the
unlicensed contractor. Id. What Wilkinson found was not recoverable as
restitution was “the expenses the victims incurred because [the unlicensed
contractor] failed to complete the work he contracted to do or did so in a
faulty manner,” reckoning those expenses “would not have occurred
without the concurrence of a second causal event, [the unlicensed
contractor’s] unworkmanlike performance.” Id. at ¶ 10.

¶18 Unlike Wilkinson, there is no such “second causal event”
attributable to Davis. Davis’ killing the victim meant someone other than
the victim or Davis would need to parent the children. That maternal
grandparents stepped forward to do so does not, under Wilkinson, mean
they could not recover those expenses directly caused by Davis’ crime. See
E.H., 259 Ariz. at 384 ¶ 22; Howard, 168 Ariz. at 459-60. The superior court
properly could have concluded it was foreseeable that family members –
like maternal grandparents – would take measures to raise the children
given Davis’ crime (killing the children’s mother) and his resulting
imprisonment, leaving no parent who could raise the minor children. See
State v. Morris, 173 Ariz. 14, 18 (App. 1992) (“[R]estitution should be ordered
for actual damages, that are the natural consequences of the defendant’s
conduct or when the court determines that the losses were foreseeable,
considering the nature and character of defendant’s criminal actions.”).

¶19 The superior court noted the maternal grandparents “made a
choice to adopt and raise their grandchildren” as a proxy for the children’s
murdered mother. The court then awarded maternal grandparents the costs
of raising the grandchildren until they turned 20 years old. However, under
Arizona law, as applicable here, a child is emancipated “[o]n the child’s
eighteenth birthday.” A.R.S. § 25-503(Q)(2). Absent circumstances not
apparent from the record, upon turning 18 years old, a parent’s obligation
to support a child ends. See Savage, 22 Ariz. App. at 62. Moreover, the
superior court did not provide any rationale for why it extended the
restitution award until the children turn 20 years old. Accordingly, that
portion of the restitution order cannot stand. Therefore, this court vacates
that portion of the order requiring Davis to pay restitution for the costs of
raising the children after they turn 18 years of age.

¶20 The Dissent states that the Arizona Supreme Court has never
adopted foreseeability as a criterion for entitlement to restitution. Cf. Reed,
252 Ariz. at 333 ¶ 23 (citing with apparent approval an Oregon case
“limiting restitution for victim’s attorney fees incurred in the criminal
proceedings to those necessary, reasonable, and foreseeable”). This Court,
however, has applied that standard for decades. See, e.g., G.F. v. Nielson, 258

7
 STATE v. DAVIS
Cattani, J., dissenting in part

Ariz 279, 283 ¶ 22 (App. 2024) (“Arizona courts use a ‘foreseeability’ or
‘natural consequence’ test to evaluate whether an economic loss was
directly caused by the criminal offense.”) (citing Morris, 173 Ariz. at 17-18).
Moreover, the Arizona Supreme Court in Wilkinson vacated this Court’s
opinion rejecting foreseeability in restitution, where two Judges had stated
“[i]f restitution extended throughout the foreseeable range of but for
causation, the administration of restitution would overwhelm the courts.”
198 Ariz. 376, 381 ¶ 23 (App. 2000) (2-1 decision), vacated, 202 Ariz. at 31 ¶
17.

¶21 The Dissent states that the cost of raising the children is not
recoverable as restitution in criminal court. In doing so, the Dissent cites
A.R.S. § 8-539, a portion of A.R.S. Title 8 (“Child Safety”) and A.R.S. § 25-
320, addressing child support in divorce proceedings, a portion of A.R.S.
Title 25 (“Marital and Domestic Relations”). The Dissent, however, does not
show how those child safety or child support statutes displace the Criminal
Code set forth in A.R.S. Title 13, either generally, or as applicable here. The
children were adopted (after Davis killed their mother M.D., resulting in
his parental rights being terminated), so A.R.S. § 8-539 does not apply here.
Moreover, restitution (setting a sum certain for past, present and future
costs resulting from criminal convictions) is not like child support, which is
subject to modification by the family court for years and years, consistent
with the best interests of the child and if the proper showing is made. A.R.S.
§ 25-327(A).

¶22 The Dissent correctly notes that homicide convictions can
yield sentences of varying lengths, suggesting that a different case might
merit a different result. But, here, the question is whether, on these facts,
the superior court in this case could have imposed the restitution
obligations that it ordered. The Dissent forcefully asserts that the
prospective cost of raising the murder victim’s children is an indirect and
consequential loss and, therefore, not recoverable as restitution in criminal
court. The Dissent notes that “[i]t is arguably the length of incarceration,
not the fact of the crime itself, that affects Davis’s ability to provide for the
children.” The broader point, however, is that Davis’ murdering the victim
prevented both the murder victim and Defendant from raising the children,
although for very different reasons. And Davis is incarcerated because he
killed the children’s mother.

¶23 As the Dissent suggests, a superior court facing a criminal
restitution claim for the cost of raising the children of a murder victim might
conclude some or even all of the claimed restitution did not pass the
Wilkinson test. See Reed, 252 Ariz. at 330 ¶ 9. But that possibility is different

8
 STATE v. DAVIS
Cattani, J., dissenting in part

than concluding, as the Dissent does, that a court could never award
criminal restitution for the cost of raising the children of a murder victim.
That is particularly true here, where Davis did not assert that the cost of
raising the children lacked a reasonable basis in fact, instead admitting that
the estimated future costs of raising the children was based on “a sound
methodological formula” that was not contested.

¶24 The Dissent argues that this case takes restitution a “step
beyond” the future lost wages claim E.H. approved. Not so. When a
criminal act orphans minor children, the fact that someone else will bear the
cost of raising them is “reasonably anticipated to be incurred in the future
as a result of the defendant’s actions.” Howard, 168 Ariz. at 460. As the
Arizona Supreme Court noted in E.H., citing Howard:

[W]here the criminal conduct directly caused
the victim’s future medical expenses and future
lost wages, [the victim’s] murder directly
caused [the deceased victim sister’s] claimed
loss. [The deceased victim’s] future ability to
earn wages was directly and immediately
eliminated with his death, and no other causal
events occurred or remained to occur to
produce that result. In other words, the loss was
direct and immediate.

E.H., 259 Ariz. at 384 ¶ 22. Similarly, in this case, Davis’ criminal act directly
resulted in both him and the children’s mother being unable to care for their
children, i.e., their loss, and “no other causal events occurred or remained
to occur to produce that result.” Id.

¶25 On this record, and following the Arizona Supreme Court’s
directive in E.H., Davis has not shown the superior court erred in denying
his PCR petition challenging the restitution award for the cost of raising the
children until they turn 18 years of age.

B. Estate and Children’s Expenses From March to December
2015.

¶26 The superior court awarded $14,179 in restitution,
representing: (1) the cost of “the basic necessities of life for the children
between March and December 2015” and (2) “incidental costs for settling
the victim’s estate outside the attorney’s fees.” Awarding restitution in an
amount representing the cost to raise the children is appropriate for the
reasons set forth above. Moreover, “customary and reasonable attorney’s

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 STATE v. DAVIS
Cattani, J., dissenting in part

fees incurred to close the victim’s estate” are properly awarded as
restitution. State v. Spears, 184 Ariz. 277, 291–92 (1996) (quoting State v.
Baltzell, 175 Ariz. 437, 438–39 (App. 1992)). For these same reasons,
incidental costs in closing the victim’s estate properly were awarded as
restitution here.

C. Probate Attorneys’ Fees.

¶27 The superior court awarded $40,469.15 in “customary and
reasonable attorney’s fees incurred to close the victim’s estate.” As noted
above, Arizona allows such amounts to be recovered in restitution and
Davis has not shown the fees awarded were not “customary and
reasonable.” Accordingly, he has shown no error in awarding the probate
attorneys’ fees as restitution.

D. Legal Fees to Seek Legal Custody and Adoption of the
Children.

¶28 Davis challenges the restitution award of $19,801.56 in legal
fees for custody and adoption of the children, arguing those expenses were
“expressly precluded as restitution pursuant to A.R.S. § 13-105(16), and
applicable caselaw.” But Davis has not shown those amounts failed to meet
the Wilkinson test. As with the future expenses to raise the children, the legal
fees properly were awarded as restitution.

III. The Superior Court Did Not Err in Not Applying Davis Credit
Against the Restitution Award.

¶29 Davis argues the court erred in not awarding him credit
against the restitution obligation for his one-half community interest in
personal property. As noted by the superior court, after deducting the items
Davis caused to be stolen after he was arrested, the probate court
determined he actually owed money to the estate, meaning he was entitled
to no credit. On the record, Davis has shown no error in this conclusion.

IV. Davis Was Not Entitled to an Evidentiary Hearing on his PCR
Petition.

¶30 Davis argues the superior court erred by failing to hold an
evidentiary hearing on his PCR petition.

The relevant inquiry for determining whether
the petitioner is entitled to an evidentiary
hearing is whether he has alleged facts which, if

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 STATE v. DAVIS
Cattani, J., dissenting in part

true, would probably have changed the verdict
or sentence. . . . ‘[W]hen there are no material
facts in dispute and the only issue is the legal
consequence of undisputed material facts, the
superior court need not hold an evidentiary
hearing.’

State v. Amaral, 239 Ariz. 217, 220 ¶¶ 11-12 (2016) (citation omitted). Because
Davis challenged the restitution sought on a legal basis, and not material
facts, Davis was not entitled to an evidentiary hearing. Accordingly, Davis
has not shown the superior court erred by not holding a hearing.

CONCLUSION

¶31 The court grants review and grants relief in part, vacating that
portion of superior court’s order requiring Davis to pay criminal restitution
for the costs of raising the children after they turn 18 years of age, but
otherwise denies relief.

C A T T A N I, Judge, dissenting in part.

¶32 I disagree that the prospective “costs of raising children” was
properly awarded as restitution in this criminal case. 5 I take no issue with
the importance of ensuring that M.D.’s estate and M.D.’s children have a
forum for seeking to recover damages caused by Davis’s conduct. My
disagreement is with using criminal restitution proceedings, rather than
civil wrongful death proceedings (at which a defendant has a constitutional
right to a jury trial), as the vehicle for doing so.

¶33 Restitution in a criminal case reimburses the victims’
economic loss. E.H. v. Slayton, 259 Ariz. 472, 476, ¶ 10 (2025). “‘Economic
loss’ means ‘losses that would not have been incurred but for the offense,’”
which by statute expressly includes “lost earnings” but expressly excludes

5 I agree with the Majority’s analysis vacating the award for costs that may

be incurred after the children turn 18. I similarly agree with the Majority’s
analysis regarding restitution for expenses other than the prospective costs
of raising the children.

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 STATE v. DAVIS
Cattani, J., dissenting in part

(among other categories) “consequential damages.” Id. (quoting A.R.S. § 13-
105(16)). “Consequential damages” in this context are losses that do not
flow “directly and immediately” from the criminal act, but rather “only
from the consequences or results of such act.” Id. at 478, ¶ 16 (quoting State
v. Reed, 252 Ariz. 328, 331, ¶ 11 (2022)); see also State v. Wilkinson, 202 Ariz.
27, 29, ¶ 7 (2002) (holding that “the statutes direct a court to award
restitution for those damages that flow directly from the defendant’s
criminal conduct, without the intervention of additional causative factors”
(emphasis added)). “If the loss results from the concurrence of some causal
event other than the defendant’s criminal conduct, the loss is indirect and
consequential and cannot qualify for restitution under Arizona's
statutes.” Wilkinson, 202 Ariz. at 29, ¶ 7 (quoted with approval in E.H., 259
Ariz. at 478, ¶ 17). This limitation is important: not only does it conform to
our Legislature’s statutory directive, but it also endeavors to avoid a conflict
with Arizona’s constitutionally preserved right to a civil jury trial. See Ariz.
Const. art. 2, § 23; E.H., 259 Ariz. at 478, ¶ 17; Wilkinson, 202 Ariz. at 29–30,
¶¶ 11–13; Town of Gilbert Prosecutor’s Off. v. Downie, 218 Ariz. 466, 469, ¶ 14
(2008).

¶34 Here, although the murder victim’s death resulted in the need
for someone else to care for her children, the cost of doing so depends on a
variety of additional causative factors, and the determination of that cost is
ill-suited for criminal restitution proceedings. At most, under E.H.,
criminal restitution proceedings may appropriately provide a vehicle to
recover lost wages on M.D.’s behalf, although even that assessment would
be better determined in civil wrongful death proceedings. What the
superior court awarded here as criminal restitution goes far beyond a lost
wages claim and is essentially a prospective, non-modifiable child support
obligation imposed on someone whose parental rights have been severed.
Accordingly, I would vacate that portion of the restitution award.

¶35 Parsing the superior court’s restitution award in this case
requires a close assessment of which victims and what economic losses are
being compensated. Where, as here, the crime results in death, the term
“victim” includes not just the decedent herself but also her children,
parents, siblings, and others. See Ariz. Const. art. 2, § 2.1(C); A.R.S. § 13-
4401(19). This means that M.D. is, of course, one victim of the crime, and
her own economic losses (like future lost wages, as in E.H.) could be
recoverable as restitution, although such an award was not sought here. See
E.H., 259 Ariz. at 476, 479, ¶¶ 10 & n.3, 22. Maternal grandparents are also
crime victims in their own right, and certain categories of restitution were
awarded to compensate them for their own economic losses.

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Cattani, J., dissenting in part

¶36 For purposes of the award of restitution for future costs of
raising children, the children are the victims claiming economic loss, and
the restitution orders award these amounts to maternal grandparents on
each child’s behalf. This category of restitution compensates the children
for their loss of parental (economic) support. And when viewed through
this lens, the loss at issue really has two components: (1) loss of support
from their father, Davis, and (2) loss of support from their mother, M.D.

¶37 The first component (loss of support from Davis) may have
been caused by the crime—but not directly—and thus does not qualify for
criminal restitution at all. See id. at 478, ¶¶ 16–17. The murder did not erase
Davis’s legal obligation to support his children. See A.R.S. § 25-501(A), (C).
Not even the later termination of his parental rights did that. See A.R.S. §
8-539 (order terminating parent-child relationship terminates most rights
and obligations, “except the right of the child to . . . support from the
parent”). Only when maternal grandparents adopted the children did
Davis’s support obligation end. Id. (“This right of . . . support shall only be
terminated by a final order of adoption.”). Because the decision to adopt,
while admirable, is what ended Davis’s support obligation, this portion of
the children’s loss is a consequential (rather than a direct) loss and is not
awardable as restitution. See Wilkinson, 202 Ariz. at 29, ¶ 7; E.H., 259 Ariz.
at 478, ¶ 17; see also A.R.S. §§ 13-603(C), -105(16).

¶38 The superior court (and now the Majority) nevertheless
conclude that this loss is compensable because it was “foreseeable” that a
family member would adopt the children to fill the parental void. But that
is not the test. To be sure, this court has used the term—although even in
the case ostensibly adopting a foreseeability inquiry, the analysis focused
on whether the loss was a “natural consequence” of (i.e., resulting directly
from) the criminal act. See State v. Morris, 173 Ariz. 14, 18–19 (App. 1992).
But the Arizona Supreme Court has never adopted foreseeability of a loss
as a criterion (much less as a sufficient condition) for entitlement to
restitution. The court has instead uniformly focused on the causal chain:
whether the loss is a direct and immediate result of the criminal conduct
and only arises without the concurrence of an additional causal factor. See,
e.g., Wilkinson, 202 Ariz. at 29, ¶ 7; E.H., 259 Ariz. at 478–79, ¶¶ 16–17, 22;
Reed, 252 Ariz. at 330–32, 335, ¶¶ 9–11, 17, 30. Even though the additional
cause (here, adoption) may have been foreseeable, it remains an additional
link in the causal chain leading to the children’s loss of support from Davis.

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Cattani, J., dissenting in part

¶39 Moreover, even without an adoption, the loss attributable to
Davis’s obligation to support his children is indirect. It is arguably the
length of incarceration, not the fact of the crime itself, that affects Davis’s
ability to provide for the children (although even this depends on factors
other than the criminal conduct, e.g., whether Davis had sufficient non-
income assets to provide support). And the length of imprisonment for a
homicide depends on myriad factors including but not limited to the
criminal conduct.

¶40 Homicide offenses can result in a wide range of sentences,
from a short term in prison (e.g., one year in prison as a mitigated term for
a first-time offender who commits negligent homicide), see A.R.S. §§ 13-
1102(C), -702(D)) to a much longer term (e.g., the 25-year flat-time
maximum sentence for second-degree murder imposed in this case, see
A.R.S. §§ 13-1104(C), -710(A)) or even natural life imprisonment or death,
see A.R.S. §§ 13-1105(D), -751(A). But whatever the sentence imposed, it is
generally the fact of incarceration, rather than the crime, that results in a
loss of support from the criminal defendant.

¶41 Furthermore, the amount a parent is obligated to prospectively
support a child is difficult to determine, and in fact depends on a variety of
yet-to-be determined factors, making it a consequential, rather than a direct,
damage determination. In other contexts, courts would never order a fixed,
prospective child support award for various reasons, including the
consequential nature of such an award. As illustrated by Arizona’s Child
Support Guidelines, A.R.S. § 25-320 app., the amount required to support a
child turns on a multitude of factors. And that amount is not set in stone:
as family circumstances change, including when a parent loses a job or
suffers some other setback, the financial means available to raise children
may also change. For that reason, child support awards (in the domestic
relations context) are always modifiable upon a showing of a substantial and
continuing change in circumstances. A.R.S. §§ 25-327(A), -317(F); see also
Guidelines Section XIV. This case, of course, arises instead in the criminal
restitution context. But even here, the confluence of factors that determine
what will be required prospectively to raise children and the inability to
meaningfully predict that future need (without provision for modification
regardless of how circumstances change) renders the loss of support
unsuitable to be categorized as a direct cost payable as criminal restitution.
In sum, the children’s loss of a specific level of economic support from
Davis was not directly caused by the murder, so in my view, the portion of
the award of restitution for child-rearing costs tied to this loss was
improper.

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 STATE v. DAVIS
Cattani, J., dissenting in part

¶42 The children’s loss of economic support from M.D., in
contrast, was plausibly caused directly by Davis’s criminal conduct to the
extent it affected M.D.’s future ability to earn wages that could be used to
support the children. See E.H., 259 Ariz. at 479, ¶ 22. This facet of the
restitution award, however, even though recoverable as such, highlights
the complexities and potential pitfalls of expanding the concept of criminal
restitution beyond what it has historically been used for (easily
determinable, already incurred costs), particularly if it strays beyond an
award of lost wages.

¶43 The Majority relies in large part on E.H. and State v. Howard, 168 Ariz. 458 (App. 1991), to support a restitution award compensating for
future economic losses. See supra ¶¶ 14, 18. In E.H., the Arizona Supreme
Court embraced—conceptually—the notion that future lost wages for a 6-
year-old murder victim could be awarded as criminal restitution. See 259
Ariz. at 477, 479, ¶¶ 14, 22. But the court did not approve a specific award
and instead remanded the case for the superior court to determine whether
the victim could establish a “reasonable basis for estimating the incurred
loss,” expressly warning that “[c]onjecture and speculation alone cannot
form that basis.” Id. at 480, ¶ 27.

¶44 In Howard, this court upheld a restitution award that included
$17,500 in anticipated future medical expenses and $12,000 in future lost
wages tied to an offense that left the victim with serious injuries. 168 Ariz.
at 459–60. We affirmed the relatively modest award based on uncontested
evidence supporting the victim’s projected (ongoing at the time of
sentencing) expenses. Id. We further noted the express caveat that the
amount would be reduced if the medical costs were less than anticipated or
the victim was able to return to work sooner than anticipated. Id. at 460

¶45 The further we stray from Howard’s readily determinable
near-future expenses, the closer we come to the “[c]onjecture and
speculation” disapproved by the E.H. court. This case in fact takes
restitution a step beyond a potential future lost wages claim contemplated
by the E.H. court and into the realm of, as noted above, what is essentially
a fixed, prospective child support award.

¶46 Furthermore, the narrow focus of restitution proceedings
risks inconsistent or overlapping awards when prospective costs are
awarded to someone other than a representative of the murder victim’s
estate. The E.H. court authorized a statutory victim to pursue a lost wages
claim on the deceased victim’s behalf, but the defendants there did not
challenge (and thus the court did not address) the practicalities of a single

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 STATE v. DAVIS
Cattani, J., dissenting in part

statutory victim claiming restitution payable to the decedent’s estate. See
259 Ariz. at 476, ¶ 10 & n.3. E.H. left unanswered how to ensure that any
such lost-wages award is distributed to all of the individuals entitled to
inherit from the deceased victim. Statutory victims may include relatives
beyond those who would qualify as statutory beneficiaries for a wrongful
death claim and may exclude the deceased victim’s personal representative
or estate. Compare A.R.S. § 13-4401(19), with A.R.S. § 12-612(A). This may
lead to a restitution award that is irreconcilable with, for example, a
deceased victim’s Will leaving their estate to someone other than a statutory
victim. And in any case, criminal restitution payable to the deceased
victim’s estate would need a mechanism to guarantee distribution to the
decedent’s heirs, as opposed to one statutory victim.

¶47 The award here presents an additional concern. Although the
restitution award is to maternal grandparents “as victim representatives”
for each of the minor children, there is no provision that the money be held
in trust, with the concomitant fiduciary responsibilities that ensue. There
is likewise no provision specifying what will happen if maternal
grandparents die before the children reach age 18. This leaves no legal
assurance that the money will be spent on the children or that the money
will be distributed to the children upon maternal grandparents’ deaths.
From my perspective, if the award is intended to be for the costs of raising
the children, it should be designated as such, and anyone handling such
monies should do so in a fiduciary capacity.

¶48 In sum, the award of restitution for the future costs of raising
the children is over inclusive, sweeping in loss of economic support from
Davis that may be caused by but not directly by the murder. And even to
the extent the children’s loss of economic support from M.D. may
technically be compensable as restitution, calculation of any such award is
a fact-intensive, multi-factor inquiry ill-suited to a criminal restitution
proceeding. Affirming the amount awarded by the superior court here goes
far beyond what Arizona appellate courts have historically authorized to
cover discrete, readily-determinable expenses. The award stretches
restitution well beyond even the uncertainties of the potential future lost-
wages award contemplated by the E.H. court, and fails to take into account
other potential beneficiaries of M.D.’s estate.

¶49 As noted above, pursuing compensation from a defendant
convicted of murder to help offset the future cost of raising the murder
victim’s children is a legitimate, worthwhile endeavor. In my view,
however, it should be done in a civil wrongful death proceeding in which
a defendant has a right to a jury trial, and in which there are protections in

16
 STATE v. DAVIS
Cattani, J., dissenting in part

place to ensure that any recovered funds are held by someone with
fiduciary responsibilities to all of the murder victim’s beneficiaries and who
is responsible for ensuring that monies awarded for the benefit of a minor
child are held in trust for that child. I would thus vacate the superior court’s
ruling awarding future child-raising costs as criminal restitution.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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