State v. Clay

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KEVIN L. CLAY, Appellant.

No. 1 CA-CR 22-0571
FILED 8-1-2023

Appeal from the Superior Court in Maricopa County
No. CR2017-148141-001
The Honorable Laura M. Reckart, Judge, Retired

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant

OPINION

Judge Daniel J. Kiley delivered the opinion of the Court, in which Vice Chief
Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
 STATE v. CLAY
Opinion of the Court

K I L E Y, Judge:

¶1 After the Maricopa County Victim Compensation Program
(the “Program”) paid the funeral expenses of the person Defendant Kevin
Clay murdered, the superior court ordered Clay to pay restitution to the
Program for those expenses. Clay now challenges the restitution order,
asserting that it lacks a statutory basis. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2020, a jury found Clay guilty of murdering L.G. (“Victim”)
and committing other felonies. This Court affirmed Clay’s convictions on
appeal. State v. Clay, 1 CA-CR 20-0163, 2021 WL 1100171, at *1, ¶ 1 (Ariz.
App. Mar. 23, 2021) (mem. decision).

¶3 Because Victim’s next of kin could not afford to pay for her
funeral, the Program stepped in to help, paying the funeral home $1,442.
The State then sought an order requiring Clay to pay restitution to the
Program. Over Clay’s objection, the court granted the State’s request and
ordered him to pay $1,442 in restitution to the Program.

¶4 Clay appeals. We have jurisdiction under A.R.S.
§§ 13-4031, -4033(A)(3), and 12-120.21(A)(1).

DISCUSSION

¶5 Clay contends that the superior court erred in “award[ing]
restitution to [the Program] for expenses it incurred in directly paying a
funeral home for funeral expenses.” He does not dispute that the cost of a
murder victim’s funeral is an economic loss properly awardable as
restitution. See State v. Spears, 184 Ariz. 277, 292 (1996) (recognizing that
murder victim’s funeral expenses and related costs “are proper
restitutionary items”). He argues, however, that the restitution order here
must be set aside because the superior court lacked statutory authority to
award restitution to the Program. We review restitution orders for abuse of
discretion, State v. Slover, 220 Ariz. 239, 242, ¶ 4 (App. 2009), but review
issues of statutory interpretation de novo, State v. Lantz, 245 Ariz. 451, 453,
¶ 9 (App. 2018).

¶6 Identifying A.R.S. §§ 13-603(C) and -804(A) as the “two
statutory pathways” for awarding restitution, Clay argues that neither
statute authorized the restitution order in this case. Noting that § 13-603(C)
requires a sentencing court to award restitution to “the victim of the crime
or to the immediate family of the victim if the victim has died,” Clay asserts

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 STATE v. CLAY
Opinion of the Court

that § 13-603(C) does not apply here because the Program was neither “the
victim” of his crimes nor the victim’s “immediate family.” Clay
acknowledges that § 13-804(A) is of broader scope than § 13-603(C),
expressly authorizing restitution awards to “any person who suffered an
economic loss caused by the defendant’s conduct.” (Emphasis added.) He
notes, however, that § 13-804(A) authorizes a sentencing court to
“allocate[]” restitution from “all or any portion of the fine imposed.”
Because the court imposed no fine here, Clay concludes, § 13-804(A) does
not authorize the restitution award, which must be set aside as lacking a
statutory basis.

¶7 In focusing on subsection A of § 13-804, Clay ignores
subsection E, which controls the outcome of this case. Subsection E of
§ 13-804 provides in part that,

[i]f a victim has received reimbursement for the victim’s economic
loss from an insurance company, a crime victim compensation
program funded pursuant to section 41-2407 or any other
entity, the court shall order the defendant to pay the restitution to
that entity.

(Emphasis added.)

¶8 Admittedly, the “reimbursement” referenced in § 13-804(E)
did not occur here; as Clay correctly points out, the Program “directly” paid
the funeral home instead of reimbursing Victim’s next of kin after they paid
the bill initially. We will not, however, construe § 13-804(E) in a narrow or
hypertechnical manner, State v. Cornish, 192 Ariz. 533, 537, ¶ 16 (App. 1998)
(“Courts will apply constructions that make practical sense rather than
hypertechnical constructions that frustrate legislative intent.”), nor in a
manner that “raise[s] form over substance,” see State v. Harrison, 195 Ariz.
1, 4, ¶ 12 (1999). Instead, we interpret § 13-804(E) in a manner that promotes
its purpose of holding defendants responsible for financial losses their
actions have caused. See State v. Merrill, 136 Ariz. 300, 301 (App. 1983)
(holding that construing “victim” narrowly to exclude insurance company
that paid theft victim’s claim would “improperly limit[] the rehabilitative
and punitive purposes of requiring the payment of restitution”).

¶9 By paying Victim’s funeral expenses, the Program stepped
into her family’s shoes, bearing an economic loss her family would
otherwise have suffered. See State v. Prieto, 172 Ariz. 298, 299 (App. 1992)
(affirming restitution award to non-victim entity that paid for victim’s
counseling, thereby “stand[ing] in the shoes of the victim” who “would

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 STATE v. CLAY
Opinion of the Court

unquestionably be entitled to restitution” had she “spent her own money”
for counseling). Because § 13-804(E) requires defendants to pay restitution
to insurance companies and victim compensation funds that bear the
economic losses of the defendants’ crimes, we hold that § 13-804(E)
provides the statutory basis for the superior court’s restitution order.

¶10 In entering the restitution order here, the superior court cited
State v. Leal, 248 Ariz. 1 (App. 2019), in which this Court affirmed a
restitution award to a tribal entity that paid a murder victim’s funeral
expenses. Id. at 2, ¶¶ 1-3. Rejecting the defendant’s argument that the tribal
entity was not entitled to restitution because it was not the “victim” of the
murder, the Leal court noted that § 13-804 authorizes a restitution award to
any “person” who sustains economic loss due to the defendant’s conduct.
Id. at 4, ¶ 11.

¶11 Clay does not dispute that the Leal court affirmed the award
of restitution to a third party that paid the murder victim’s funeral expenses
but insists that Leal was “wrongly decided” and so “must be overruled.”
Noting that the Leal court relied on State v. King, 157 Ariz. 508 (1988), in
affirming the trial court’s award of restitution under § 13-804, Clay
contends that the Leal court misinterpreted King.

¶12 In King, the defendant who pled guilty to theft, a class 5
felony, appealed from an order requiring him to pay restitution of $16,876.
Id. at 508-09. Noting that, pursuant to the statute in effect at the time, theft
was a class 5 felony if the value of the property was between $250 and $500,
the defendant argued that his guilty plea “was not voluntarily and
intelligently made” because he never “agreed to pay restitution in an
amount exceeding $500, the limits of the crime to which he pled guilty.” Id.
at 509. Rejecting the defendant’s argument, the Arizona Supreme Court
observed that the terms of the plea agreement gave the defendant notice
that he could be required to pay a fine of up to $150,000. Id. at 510. The
defendant “was not under any illusion about the extent of a possible
financial assessment,” the Court stated, and “it should make no difference
to the defendant” that the trial court imposed a fine of $16,876 and then
allocated that sum as restitution pursuant to § 13-804(A). Id. at 508, 510.

¶13 According to Clay, King construes § 13-804 to authorize
restitution to a non-victim “only when ordered as an allocation of a fine.”
Leal exceeded the holding of King, Clay contends, by affirming a restitution
award to a non-victim under § 13-804 without first determining “if the
award constituted an allocation of a fine.”

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 STATE v. CLAY
Opinion of the Court

¶14 Clay reads too much into King. Because the restitution at issue
in King was awarded to a victim, King sheds no light on whether, or under
what circumstances, restitution may be properly awarded to a non-victim.
Nothing in King, therefore, conflicts with Leal’s resolution of that issue.

¶15 In any event, Clay’s challenge to Leal is unavailing because
Leal is inapposite. The issue presented in Leal was whether the entity to
which restitution was awarded was eligible to receive it. That issue is not
presented here; A.R.S. § 13-804(E) leaves no doubt that victim
compensation funds, like insurance companies, are entitled to restitution
when they bear the burden of economic losses caused by defendants that
victims would otherwise bear.

¶16 Because making whole “the entity suffering the economic loss
resulting from [a defendant’s] criminal activity” best fulfills “the mandate
of restitution,” Merrill, 136 Ariz. at 301, and because § 13-804(E) expressly
authorizes a court to award restitution to a crime victim compensation
program for economic losses caused by a defendant, the court did not abuse
its discretion by ordering Clay to pay $1,442 in restitution to the Program.

CONCLUSION

¶17 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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