G.F. v. Hon. Nielson

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

G.F., Petitioner,

v.

THE HONORABLE DALE P. NIELSON, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of NAVAJO,
Respondent Judge,

STATE OF ARIZONA ex rel. BRAD CARLYON, Navajo County Attorney;
MELINDA PORTER, Real Parties in Interest.

No. 1 CA-SA 24-0105
FILED 09-03-2024

Petition for Special Action from the Superior Court in Navajo County
No. SO900CR201900924
The Honorable Dale P. Nielson, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Michael P. Denea, PLC, Phoenix
By Michael P. Denea
Counsel for Petitioner

Navajo County Attorney’s Office, Holbrook
By Bradley W. Carlyon
Counsel for Real Party in Interest State of Arizona

Griffen & Stevens Law Firm, PLLC, Flagstaff
By Bruce S. Griffen
Counsel for Real Party in Interest Melinda Porter
 G.F. v. HON. NIELSON, et al.
Opinion of the Court

OPINION

Judge David D. Weinzweig delivered the opinion of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 At issue here is whether a crime victim is entitled to
restitution for the cost of a mental health diagnostic evaluation from the
perpetrator who groomed him. Melinda Porter (“Porter”) pled guilty to
having committed three felonies against the crime victim (“Victim”),
including attempted kidnapping, furnishing harmful items to a minor and
aggravated assault with sexual motivation. Victim timely requested
restitution from Porter for a mental health diagnostic evaluation to
determine if and how her crimes caused him trauma. The superior court
denied that request, and Victim petitioned for special action relief. We
accept jurisdiction and grant relief because Victim raised a colorable claim
for restitution and the court should have conducted an evidentiary hearing
to determine whether Victim suffered a compensable economic loss.

FACTS AND PROCEDURAL BACKGROUND

¶2 Porter was a 36-year-old high school science teacher when she
formed an inappropriate relationship with Victim, her then 14-year-old
student. Porter and Victim flirted for months in 2018 and 2019, including
in class. They talked about having sex and Porter later texted the minor
photographs of her naked breasts and vagina. A student told police that
Porter “would sit next to [Victim] at lunch and sometimes he would go into
her classroom at lunch,” which “would be locked and the lights off, so it
was not possible to see what they were doing inside.”

¶3 Students and faculty noticed Porter’s affection for Victim,
which spawned rumors of an illicit relationship. In September 2019, a
concerned parent reported Porter to the high school, where Porter’s
brother-in-law was the principal.

¶4 Police interviewed Porter. She admitted she sent naked
photographs to Victim. She also admitted she picked up Victim from his
house, drove around town and they kissed. She denied that they had sexual
intercourse, although Victim told his family otherwise.

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Opinion of the Court

¶5 Porter was arrested and spent one night in jail. She pled
guilty to three felonies: (1) attempted kidnapping, a dangerous crime
against children, and a class 3 felony, (2) aggravated assault with sexual
motivation, a class 6 felony, and (3) furnishing harmful items to a minor, a
class 4 felony. The superior court sentenced Porter to five years probation,
required her to register as a sex offender and ordered her to pay up to
$100,000 in restitution to Victim. The plea deal authorized the court to
extend her probation if she does “not pay restitution in full.”

¶6 After Porter’s arrest, Victim was bullied and harassed by
students and faculty alike. Students accused him of lying and claimed he
wanted to ruin Porter’s life. Victim sunk into a deep depression. His sister
said the “family noticed a change in his personality,” describing him as
“angry.” Victim’s father asked the school to pay for professional counseling
services, but the school refused, instead offering to have its principal
(Porter’s brother-in-law) “counsel” Victim himself. Victim declined that
offer. Victim’s family was also targeted. His father lost his job and his
grandparents were ostracized in the tight-knit community.

¶7 Victim dropped out of 10th grade and ran away from home.
He used drugs “to be emotionally numb,” and sold drugs for a living. By
the end of 2022, just after he turned 18 years old, Victim was convicted of
drug-related felonies.

¶8 In early 2023, Victim requested $8,750 in restitution from
Porter to secure a mental health evaluation to determine if and how Porter’s
crimes caused him trauma. Depending on the result of the evaluation,
Victim intended to seek restitution for mental health services. The superior
court declined that request without an evidentiary hearing, finding:

[T]he request for restitution is speculative. The request does
not fit into the definition of economic loss. It is possible that
the assessment would determine [Victim] suffered no trauma
from the acts of [Porter], but perhaps were caused by other
factors in his life. It is possible [Victim] does not suffer
trauma. If the assessment were to determine that [Victim] is
not in need of any help how would [Porter] be reimbursed for
what was an unnecessary expense. This ruling does not
prevent [Victim] from receiving an evaluation at some point,
which could point to personal issues cause[d] by [Porter],
which would require treatment and would thus warrant
restitution because there is actual economic loss.

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 G.F. v. HON. NIELSON, et al.
Opinion of the Court

¶9 Porter moved to terminate probation early, lamenting that she
could not attend high school or church events because of her probation and
sex-offender status.

¶10 Victim petitioned for special action relief from the superior
court’s denial of the restitution order. We stayed the proceedings to
preserve Victim’s opportunity to seek relief. We now accept jurisdiction
and grant relief.

JURISDICTION

¶11 Special action jurisdiction is discretionary. City of Surprise v.
Ariz. Corp. Comm’n, 246 Ariz. 206, 209, ¶ 6 (2019). Special action relief is not
available where there is a plain, speedy, and adequate remedy by appeal.
See Ariz. R. P. Spec. Act. 1(a).

¶12 Arizona crime victims have a constitutional right to seek
special action relief when necessary to enforce their right to restitution. See
Victims’ Bill of Rights, Ariz. Const. art. II, § 2.1(A)(4), (8)–(9); A.R.S. §§ 13-
4437(A), -804; Ariz. R. Crim. P. 39(b)(7). Consistent with Rule 1(a) of the
Rules of Procedure for Special Actions, we have exercised our special action
jurisdiction to allow victims to pursue claims that would otherwise be
extinguished without a hearing. See L.H. v. Vandenberg, 256 Ariz. 44, 47,
¶ 7 (App. 2023); E.L. v. Carman, 252 Ariz. 173, 175, ¶ 7 (App. 2021).

¶13 Porter has moved for early termination of her probation,
which would foreclose Victim’s right to restitution from her. See A.R.S.
§ 13-805(A). We accept special action jurisdiction because an erroneous
termination of Porter’s probation would leave Victim without any remedy,
even if his claim for restitution is meritorious.

DISCUSSION

¶14 Arizona crime victims own a constitutional and statutory
right to secure restitution from the person convicted of the criminal offense
against them. Ariz. Const. art. II, § 2.1(A)(8); A.R.S. §§ 13-804, -603(C); State
v. Reed, 252 Ariz. 328, 330, ¶ 7 (2022) (“The Victims’ Bill of Rights enshrined
in our state constitution guarantees crime victims prompt restitution from
the person or persons convicted of the criminal conduct that caused the
victim’s loss or injury.”) (cleaned up). Restitution is designed “to make the
victim whole and to make the offender recognize the specific consequences
of [her] criminal activity and accept responsibility for those consequences.”
State v. Freeman, 174 Ariz. 303, 306 (App. 1993) (cleaned up). We review the

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Opinion of the Court

denial of a restitution order for an abuse of discretion. Reed, 252 Ariz. at
331, ¶ 13.

¶15 Full economic restitution is mandatory in criminal cases.
A.R.S. §§ 13-603(C), -804. To that end, Arizona courts have an “affirmative
duty to require a defendant convicted of a crime to make full restitution for
the economic loss sustained by the victim.” State v. Zierden, 171 Ariz. 44, 45
(App. 1992). Arizona law defines “economic loss” as:

[A]ny 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).

¶16 The medical expenses of a crime victim qualify as an
“economic loss,” including mental health expenses. Reed, 252 Ariz. at 332,
¶ 18 (affirming restitution order for defendant to cover mental health
counseling and therapy costs for victim of a sexual crime); State v. Wideman, 165 Ariz. 364, 369 (App. 1990) (awarding a victim’s family restitution for
mental health counseling expenses).

¶17 Porter argues that Victim cannot receive restitution here
because (1) he has not been diagnosed, and (2) he failed to show a
connection between her crimes and his mental health issues. We address
each argument in turn.

¶18 Crime victims bear the burden to prove that restitution is
appropriate by the preponderance of the evidence. State v. Lewis, 222 Ariz.
321, 324, ¶ 7 (App. 2009). But a crime victim need only state a colorable
claim for relief to obtain an evidentiary hearing, as in the post-conviction
relief context. State v. Quijada, 246 Ariz. 356, 362, ¶ 14 (App. 2019) (“The
court determined, however, that Quijada presented a colorable claim about
whether stolen items had been recovered or returned since the court issued
the restitution order, and scheduled an evidentiary hearing on that issue.”);
Reed, 252 Ariz. at 330, ¶ 4 (a “restitution hearing” was held to determine
whether restitution was proper for “mental health counseling sessions”); cf.
Ariz. R. Crim. P. 32.13(a) (“The defendant is entitled to a hearing to
determine issues of material fact and has the right to be present and to
subpoena witnesses for the hearing.”).

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 G.F. v. HON. NIELSON, et al.
Opinion of the Court

I. Diagnosis.

¶19 Economic restitution is available if losses are (1) economic, (2)
would not have been incurred by the victim but for the criminal offense,
and (3) directly caused by the criminal conduct. Reed, 252 Ariz. at 330, ¶ 9
(citing State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002)).

¶20 Porter concedes that Victim’s expenses for mental health
services could qualify as an “economic loss,” but contends that Victim must
first obtain a formal diagnosis before requesting restitution. Her position is
unsupported and incorrect. Arizona law does not require crime victims to
obtain a mental health diagnosis before restitution is requested. See A.R.S.
§§ 13-603(C), -105(16). And her position improperly attempts to create
“unnecessary and onerous prerequisites” to vindicating Victim’s rights
here, which we will not do. See Quijada, 246 Ariz. at 371, ¶ 51 (“A victim’s
decision to seek restitution turns on a cost-benefit assessment and courts
should be careful not to disrupt the calculus with unnecessary and onerous
prerequisites.”) (Weinzweig, J., special concurrence).

II. Causation.

¶21 Porter next argues she need not pay for a mental health
evaluation because any connection between those services and her crimes
is speculative. Without holding an evidentiary hearing, the superior court
found that Victim’s mental health issues were not tied to Porter’s crimes.
That was error.

¶22 The Arizona Constitution protects a crime victim’s right to
seek an order if necessary to protect their right to restitution. Ariz. Const.
art. II, § 2.1. As to the third element for economic loss, Arizona courts use
a “foreseeability” or “natural consequence” test to evaluate whether an
economic loss was directly caused by the criminal offense. State v. Morris, 173 Ariz. 14, 17–18 (App. 1992) (directing courts to consider the “nature and
character of the criminal activity”).

¶23 Victim raised a colorable claim for restitution here, so the
superior court was required to hold an evidentiary hearing. A.R.S. § 13-
804(G) (authorizing the court to hold evidentiary hearing to establish the
amount and manner of restitution). It did not. We vacate the court’s
denial of request for restitution and remand for the court to hold an
evidentiary hearing.

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 G.F. v. HON. NIELSON, et al.
Opinion of the Court

III. Evidentiary Hearing.

¶24 Having remanded for an evidentiary hearing, we offer more
direction to the superior court. Victim is entitled to “reasonably
anticipated” medical expenses. State v. Howard, 168 Ariz. 458, 460 (App.
1991).

¶25 At issue in the evidentiary hearing is whether it was
“foreseeable” or “reasonably anticipated” that Victim might seek a mental
health evaluation, along with mental health treatment, given Porter’s
crimes. Howard, 168 Ariz. at 460; Reed, 252 Ariz. at 332, ¶ 18 (“Indisputably,
an economic loss flowing directly from [the crime of voyeurism] was the
cost [victim] incurred for therapy sessions to ameliorate the nightmares,
anxiety, and other mental distress she suffered because of [defendant’s]
conduct.”); Paroline v. United States, 572 U.S. 434, 457 (2014) (recognizing
victim of sexually motivated crimes may receive restitution to heal
psychological harm, including future counseling and treatment).

¶26 On remand, the court must determine if, and how much,
Porter owes Victim to compensate for full economic losses. See E.H. v.
Slayton, 251 Ariz. 289, 292, ¶¶ 14–15 (App. 2021) (special action remanded
for evidentiary hearing to determine if, and how much restitution is
warranted, including for future losses). If Porter has not compensated
Victim for his full economic losses arising from Porter’s crimes (including
those “reasonably anticipated” in the future), then the court must deny
Porter’s motion for early termination of probation and retain jurisdiction
until she has paid in full. A.R.S. § 13-805(A).

CONCLUSION

¶27 We vacate the denial of Victim’s request for restitution, lift the
stay of proceedings, and remand for proceedings consistent with this
opinion.

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 G.F. v. HON. NIELSON, et al.
Opinion of the Court

¶28 Victim requests his attorney fees for this special action under
A.R.S. § 13-4437 and Reed, 252 Ariz. at 332–35, ¶¶ 21–30. Because counsel
was “reasonably necessary to assist [Victim] in enforcing” his constitutional
rights, Reed, 252 Ariz. at 335, ¶ 30, we grant his request for reasonable
attorney fees and costs on appeal upon compliance with ARCAP 21.

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

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