State v. Oliver

2018 UT App 101
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C HANDRA P ARRY O LIVER ,
Appellant.
Opinion
No. 20160582-CA
Filed June 7, 2018
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 151400755
Marshall M. Thompson, Christine Seaman, and
Alexandra S. McCallum, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGE
JILL M. POHLMAN concurred. JUDGE M ICHELE M. C HRISTIANSEN
concurred, with opinion.
HARRIS, Judge:
¶1 	Chandra Parry Oliver’s boyfriend (Boyfriend) invited two
young men—one eighteen years old, the other nineteen years
old—over 	to 	Oliver’s 	house 	for 	the 	purpose 	of 	smoking
methamphetamine. After they arrived, all four of them smoked
methamphetamine together. Some time later, the young men
went into Oliver’s bathroom and, without Oliver’s knowledge,
swallowed additional methamphetamine. One of the young men
(Victim) overdosed, and later died.
¶2 	Oliver eventually pled guilty to reckless endangerment, a
class A misdemeanor. The district court, at the State’s request,

State v. Oliver
20160582-CA 	2 	2018 UT App 101
ordered Oliver to pay Victim’s medical and funeral expenses as
restitution. Oliver appeals that restitution order, arguing that the
State did not present sufficient evidence demonstrating that her
actions 	were 	the 	proximate 	cause 	of 	Victim’s 	death, 	and
therefore she should not have been required to pay restitution.
We find Oliver’s arguments persuasive, at least in part, and
therefore vacate the restitution order and remand this case to the
district court for further proceedings.
BACKGROUND
¶3 	On 	November 	16, 	2013, 	Victim 	(an 	eighteen-year-old
male) and his friend (Friend) called Boyfriend and asked if they
could come over to the house in which Oliver and Boyfriend
lived so that they could “get warm” and “smoke a bowl of
[m]eth.” Boyfriend granted them permission, and so Victim and
Friend came over to Oliver’s house. Once they arrived, Oliver,
Boyfriend, Victim, and Friend all smoked methamphetamine
together.
¶4 	Soon 	thereafter, 	Victim 	and 	Friend 	went 	into 	the
bathroom at Oliver’s house. At the time, Oliver did not know
what they were doing in the bathroom, but as it turned out they
spent 	some 	of 	their 	time 	there 	ingesting 	additional
methamphetamine through a method known as “parachuting,” a
technique 	where 	an 	individual 	wraps 	methamphetamine 	in
toilet paper and then swallows it.
¶5 	Later, after emerging from the bathroom, Victim and
Friend both “started acting funny.” Oliver and Boyfriend “had
another guy get [Victim] out to his car and go to the hospital,”
but 	for 	reasons 	unclear 	from 	the 	record, 	that 	effort 	failed.
Eventually, 	another 	person 	present 	called 	911, 	and 	the
paramedics came and took Victim to the hospital. Victim later
died.
¶6 	The 	State 	filed 	six 	criminal 	charges 	against 	Oliver,
including one count of obstructing justice, a third degree felony,

State v. Oliver
20160582-CA 	3 	2018 UT App 101
see Utah Code Ann. § 76-8-306(1) (LexisNexis 2017); two counts
of possession or use of a controlled substance, one charged as a
third degree felony, and one charged as a class B misdemeanor
see id. § 58-37-8(2)(a)(i); two counts of reckless endangerment,
both class A misdemeanors, see id. § 76-5-112; and one count of
possession of drug paraphernalia, a class B misdemeanor, see id.
§ 58-37a-5(1).1 Eventually, after plea negotiations, Oliver agreed
to plead guilty to possession of a controlled substance (reduced
to 	a 	class 	A 	misdemeanor) 	and 	one 	count 	of 	reckless
endangerment (also a class A misdemeanor) in exchange for the
State dropping the remaining charges.
¶7 	On the date set for preliminary hearing, Oliver elected to
waive her right to that hearing and enter her plea instead. Before
it accepted Oliver’s plea, however, the district court asked about
the factual basis for the plea, and Oliver’s counsel stated as
follows:
On November 16th of 2013 in Salt Lake County,
Ms. 	Oliver 	was 	in 	possession 	and 	she 	used
methamphetamine. Additionally, she was residing
in a home where she allowed two other people to
use methamphetamine that resulted in the overdose
of one of those . . . individuals.
(Emphasis added.) After Oliver’s counsel recited the factual
basis, the district court asked Oliver, “Is that what happened,
Ms. Oliver?” Oliver answered “Yes.” At that point, the court
accepted and entered Oliver’s guilty plea.
¶8 	After 	Oliver 	pled 	guilty, 	she 	provided 	the 	following
statement 	to 	probation 	officers 	who 	were 	preparing 	a
presentence report for the court:
1. Boyfriend also faced criminal charges stemming from the
same 	incident, 	and 	eventually 	pled 	guilty 	to 	one 	count 	of
reckless endangerment, a class A misdemeanor.

State v. Oliver
20160582-CA 	4 	2018 UT App 101
[Friend and Victim] had called my boyfriend at the
times phone to see if they could come into our
house to get warm + smoke a bowl of Meth and he
told them yes. They came in and we all smoked
and 	then 	[Friend 	and 	Victim] 	went 	into 	the
bathroom and swallowed some meth and I did not
know this at the time then the guys both started
acting funny and we had another guy [there] get
[Victim] out to his car and go to the hospital but
then [another friend] [ended] up having to call 911
and the paramedics came + took [Victim] to [the]
hospital where he later had passed.
¶9 	The district court held a sentencing hearing in February
2016. The court ordered Oliver to serve 120 days in jail (with the
remainder of two one-year jail terms suspended), and to serve
twenty-four months on probation, and imposed various terms
and conditions of probation. The court ordered that the issue of
restitution would “remain open” for ninety days. A few weeks
later, the State filed a motion seeking an order compelling Oliver
to pay $14,151.64 in restitution to Victim’s father to pay for
Victim’s hospital and funeral expenses. The State also asked the
court to order that the restitution amount be paid jointly and
severally by Oliver and Boyfriend.
¶10 	Oliver objected to the State’s restitution request, arguing
generally that she “did not admit to facts which constitute the
proximate 	cause 	of 	[Victim’s] 	death.” 	Specifically, 	Oliver’s
causation objection was based entirely upon a superseding cause
argument, in which Oliver asserted that Victim’s “own ingestion
of a large quantity of methamphetamine . . . was the proximate
cause of his death” and that it was Victim’s own decision to
swallow methamphetamine that was “the direct and proximate
cause of his hospitalization and ultimate death resulting in the
restitution amounts.” Oliver made no specific argument that the
State had failed to prove a causal link between Victim’s overdose
and Victim’s death, and made no specific argument that she

State v. Oliver
20160582-CA 	5 	2018 UT App 101
should not be required to pay restitution jointly and severally
with Boyfriend.
¶11 	After briefing, the district court held a hearing on the
State’s restitution request. The hearing was very short; the entire
transcript is only six pages long. Neither side presented any
actual 	evidence, 	whether 	through 	witnesses 	or 	through
documents, and the court heard no testimony from any witness.
Instead, 	attorneys 	for 	the 	State 	and 	for 	Oliver 	made 	legal
arguments regarding causation. Oliver’s attorney reiterated the
superseding 	cause 	argument 	made 	in 	the 	briefing, 	arguing
generally that Oliver’s conduct was not “the proximate cause of
[Victim’s] death,” and arguing specifically that “the proximate
cause of [Victim’s] death unfortunately and practically was his
own 	independent 	decision 	to 	ingest 	a 	lethal 	quantity 	of
methamphetamine.” As in her briefing, Oliver made no specific
argument that the State had failed to demonstrate a causal link
between the overdose and the death and made no specific
argument about joint and several liability. At the conclusion of
the hearing, the district court took the matter under advisement.
¶12 	About a week later, the district court issued a decision
granting the State’s request for restitution, and ordering Oliver
to 	pay 	Victim’s 	hospital 	and 	funeral 	expenses. 	The 	court
reasoned that Oliver “allowed the victim to come to her home to
smoke 	methamphetamine” 	and 	that 	“[t]his 	in 	itself 	was
recklessly engaging in conduct that created a substantial risk of
death or serious bodily injury to the victim.” The court added
that “[i]t was also foreseeable that allowing someone to ingest
methamphetamine either by smoking or swallowing could lead
to death or serious bodily injury.”
ISSUES, STANDARDS OF REVIEW, AND PRESERVATION
¶13 	Oliver now appeals the district court’s restitution order,
and asks us to consider two issues. First, Oliver argues that the
district court should not have ordered her to pay restitution,

State v. Oliver
20160582-CA 	6 	2018 UT App 101
because (according to Oliver) the State failed to present sufficient
evidence to prove that Oliver’s actions were the proximate cause
of Victim’s overdose or death. The State asserts that this entire
argument is unpreserved. To preserve an issue for appellate
review, 	the 	issue 	“must 	be 	specifically 	raised, 	in 	a 	timely
manner, and must be supported by evidence and relevant legal
authority.” Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d 839.
“An issue is preserved for appeal when it has been presented to
the district court in such a way that the court has an opportunity
to rule on [it].” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443
(quotation simplified). We agree with the State that part of
Oliver’s first argument is unpreserved.
¶14 	The lack-of-causation argument that Oliver advances on
appeal has two components: (1) that the State failed to present
sufficient evidence of a causal link between Oliver’s actions and
Victim’s 	overdose, 	and 	(2) 	that 	the 	State 	failed 	to 	present
sufficient evidence of a causal link between Victim’s overdose
and Victim’s death. As we explain below, the second part of
Oliver’s challenge on appeal—that there is not a sufficient causal
link between Victim’s overdose and Victim’s death—was not
preserved below; indeed, we conclude that any error that the
district court may have made on this point was invited by
Oliver. Therefore, we cannot disturb it on appeal.
¶15 	The other part of Oliver’s lack-of-causation argument,
however, was preserved. As discussed below, we agree with
Oliver that she adequately presented to the district court her
argument, now advanced on appeal, that the State failed to
present evidence of a sufficient causal link between Oliver’s
conduct and Victim’s overdose. Accordingly, we review that
part of the district court’s restitution determination as we would
ordinarily do. “[I]n the case of restitution, a reviewing court will
not disturb a district court’s determination unless the court
exceeds the authority prescribed by law or abuses its discretion.”
State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104. “To the extent
that the district court made legal determinations in connection
with 	its 	restitution 	analysis, 	we 	review 	those 	legal

State v. Oliver
20160582-CA 	7 	2018 UT App 101
determinations for correctness.” State v. Jamieson, 2017 UT App
236, ¶ 13, 414 P.3d 559 (citing State v. Brooks, 908 P.2d 856, 858–59
(Utah 1995)).
¶16 	Second, Oliver argues that the district court erred by
ordering that the restitution be paid jointly and severally by and
between 	Oliver 	and 	Boyfriend. 	Oliver 	contends 	that 	she
preserved this argument for appeal when her counsel “argued
repeatedly that . . . Oliver could only be held liable for pecuniary
damages that were proximately caused by her admitted criminal
actions, not the actions of others.” The State disagrees, and
points out that Oliver “cites no place where she pointed the trial
court to the statutory authority she now says clearly shielded her
from joint and several liability.” We agree with the State that
Oliver did not preserve this second argument for appeal.
¶17 	In opposition to the State’s restitution request, Oliver
argued generally that she did not proximately cause Victim’s
death, and argued specifically that Victim’s own conduct was a
superseding cause of his death. She did not explicitly alert the
district court to her position that she could not be jointly and
severally 	liable 	with 	Boyfriend; 	nor 	did 	she 	cite 	any 	legal
authority in support of the legal theory she now advances on
appeal. And at oral argument before the district court, Oliver
made the same arguments that she made in her briefing in
opposition to the State’s restitution request. As with her briefing,
during oral argument Oliver did not specifically argue that she
could not be jointly and severally liable with Boyfriend. We
conclude that Oliver’s general proximate causation challenge
was not sufficiently specific to alert the district court that Oliver
intended to raise the legal theory that she could not be jointly
and 	severally 	liable 	with 	Boyfriend. 	Therefore, 	the 	issue 	is
unpreserved.
¶18 	Oliver nonetheless asks us to review this issue for plain
error. To prevail under plain error review, Oliver must establish
that (1) an error exists, (2) the error should have been obvious,
and (3) the error prejudiced her. Id. ¶ 20.

State v. Oliver
20160582-CA 	8 	2018 UT App 101
ANALYSIS
I. Proximate Causation
¶19 	Under Utah’s Crime Victims Restitution Act,2 “the court
shall order that the defendant make restitution to victims of
crime” when that defendant “enters into a plea disposition or is
convicted of criminal activity that has resulted in pecuniary
damages.” Utah Code Ann. § 77-38a-302(1) (LexisNexis 2017)
(emphasis added). Pecuniary damages, in turn, are defined as
“all demonstrable economic injury . . . including those which a
person could recover in a civil action arising out of the facts or
events constituting the defendant’s criminal activities.” Id. § 77-
38a-102(6).
¶20 	While 	the 	statute 	certainly 	requires 	some 	causal
connection between the crime and the pecuniary damages, see id.
§ 	77-38a-302(1) 	(stating 	that 	restitution 	is 	available 	when
“criminal activity” has “resulted in pecuniary damages”), the
statute does not provide any additional guidance as to the
strength of the causal connection required. Over the past several
decades, 	this 	court 	often 	applied 	a 	“modified 	‘but 	for’
[causation] test” to determine whether criminal activity resulted
in pecuniary damages. See State v. Brown, 2009 UT App 285, ¶ 11,
221 P.3d 273, overruled by State v. Ogden, 2018 UT 8, ¶ 48 n.12.
Recently, however, our supreme court determined that the same
“proximate cause” standard ordinarily applied in civil cases
should apply in the criminal restitution context as well. See State
v. Ogden, 2018 UT 8, ¶ 39 (stating that “we opt for the reading
that harmonizes with the causation standard that would apply in
an analogous civil action: proximate cause”); see also id. ¶ 48 (“we
find that proximate cause is required to find that a ‘criminal
activity . . . has resulted in pecuniary damages’” (quoting Utah
Code section 77-38a-302(1))). Ogden explicitly “overrule[d] the
2. The entire Crime Victims Restitution Act is codified at Utah
Code sections 77-38a-101 to -601.

State v. Oliver
20160582-CA 	9 	2018 UT App 101
body of court of appeals precedent applying [the] ‘modified but
for’ test.” Id. ¶ 48 n.12. Thus, we apply principles of proximate
causation in deciding this appeal.
¶21 	Proximate 	cause 	has 	two 	elements. 	First, 	but-for
causation must be present; indeed, proximate cause “is that
cause which, in a natural and continuous sequence, unbroken by
any 	new 	cause, 	produced 	the 	injury, 	and 	without 	which
the injury would not have occurred.” Dee v. Johnson, 2012 UT
App 237, ¶ 4, 286 P.3d 22 (quotation simplified); see also Model
Utah 	Jury 	Instructions 	2d 	(MUJI) 	CV209(1) 	(2016),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=2#209 	[https://perma.cc/FB39-NJJM] 	(defining 	the
first element of proximate cause as whether “the person’s act or
failure to act produced the harm directly or set in motion events
that produced the harm in a natural and continuous sequence”).
Second, the harm must be foreseeable. Dee, 2012 UT App 237,
¶ 5; see also MUJI CV209(2) (defining the second element of
proximate cause as whether “the person’s act or failure to act
could be foreseen by a reasonable person to produce a harm of
the same general nature”). Proximate cause requires “some
greater level of connection between the act and the injury than
mere ‘but for’ causation.” See Raab v. Utah Ry., 2009 UT 61, ¶ 23,
221 P.3d 219. The central question in assessing proximate cause
is “whether liability should attach to a particular cause in fact.”
Id. ¶ 22; see also USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 114,
372 	P.3d 	629 	(stating 	that 	“[u]ltimately, 	a 	proximate 	cause
analysis looks to whether an individual who is a but-for cause of
the harm should nevertheless be excused from liability”).3
3. Under our old “modified but-for” test, criminal conduct can
be 	said 	to 	“result[] 	in” 	pecuniary 	damages 	when 	“(1) 	the
damages would not have occurred but for the conduct . . . and
(2) the causal nexus between the [criminal] conduct and the
loss . . . is not too attenuated (either factually or temporally).”
State v. Gibson, 2017 UT App 142, ¶ 11, 405 P.3d 716 (quotation
(continued…)

State v. Oliver
20160582-CA 	10 	2018 UT App 101
¶22 	A defendant may, of course, agree (for instance, as part of
a plea bargain) that a particular category of restitution was
proximately caused by her criminal activity, and may even agree
to pay a specific amount of restitution. See, e.g., State v. Bickley,
2002 UT App 342, ¶ 9, 60 P.3d 582 (stating that “restitution can
include payment for crimes not listed in the information so long
as a defendant admits responsibility or agrees to pay restitution”
(citing Utah Code Ann. § 76-3-201(8)(a) (LexisNexis 2017)). But
absent a stipulation by the defendant, the State bears the burden
of establishing restitution. See Brown, 2009 UT App 285, ¶ 10
(stating that “to include an amount in a restitution order, the
State must prove that the victim has suffered economic injury
and 	that 	the 	injury 	arose 	out 	of 	the 	defendant’s 	criminal
activities”); cf. Fox v. Brigham Young Univ., 2007 UT App 406,
¶ 21, 176 P.3d 446 (stating that “‘the causal connection between
the alleged negligent act and the injury is never presumed and
. . . this is a matter the plaintiff is always required to prove
affirmatively’” (quoting Jackson v. Colston, 209 P.2d 566, 568
(…continued)
simplified). 	These 	elements 	are 	similar 	to 	the 	elements 	of
proximate cause, in that both tests require the existence of “but-
for causation” as a threshold principle, and then both require an
examination of the strength of the causal nexus between the
conduct and the loss; indeed, on at least a few occasions over the
years, we referred to causation in the restitution context in terms
of proximate cause. See State v. Mast, 2001 UT App 402, ¶ 24, 40
P.3d 1143 (stating that a “trial court may impose restitution for
amounts proximately caused by defendant’s conduct”); see also
State v. Larsen, 2009 UT App 293, ¶ 8, 221 P.3d 277 (citing Mast
and stating that “the defendant could be ordered to pay only
‘restitution for amounts proximately caused by [her] conduct’”).
Still, though, we view the Ogden case as imposing a “more
stringent . . . test of legal causation” than our modified but-for
test, see State v. Ogden, 2018 UT 8, ¶ 44, and it therefore follows
that, after Ogden, the State’s burden of demonstrating a sufficient
causal link became at least somewhat heavier.

State v. Oliver
20160582-CA 	11 	2018 UT App 101
(Utah 1949))). And as part of this burden, the State must prove
the 	necessary 	causal 	link 	between 	a 	defendant’s 	criminal
conduct and a victim’s pecuniary damages.4 Brown, 2009 UT
App 285, ¶ 10.
¶23 	In this case, however, the factual record is scant: Oliver
waived her right to a preliminary hearing, no trial was ever held,
and 	the 	State—the 	party 	bearing 	the 	burden 	to 	prove 	the
necessary causal link—put no evidence into the record at the
restitution hearing. Indeed, at that hearing, neither party called
any witnesses to testify, and neither party offered any exhibits
into evidence.
¶24 	Given the state of the record, the State conceded at oral
argument that the only actual facts properly before the court
must 	be 	drawn 	from 	three 	sources: 	(a) 	facts 	which 	are
necessarily part of the elements of the crimes to which Oliver
pled guilty; (b) the “factual basis” for Oliver’s plea, as stated on
the record at the change of plea hearing; and (c) the statement
Oliver provided to probation officers in connection with the
4. We are unaware of any Utah appellate opinions discussing the
level of proof required to prove restitution in a criminal case,
and the operative statute (the Crime Victims Restitution Act)
provides no guidance on the issue. However, in federal courts,
and in other state jurisdictions of which we are aware, the
“[g]overnment bears the burden of proving” the restitution
amount, 	including 	the 	requisite 	causal 	link, 	“by 	the
preponderance of the evidence.” See United States v. Wells, 873
F.3d 1241, 1265 (10th Cir. 2017); see also, e.g., In re Stephanie B., 65
P.3d 114, 118 (Ariz. Ct. App. 2003) (citing cases from several
jurisdictions, and stating that “[t]he burden of proof applicable
to restitution is proof by a preponderance of the evidence”).
Neither party has raised or briefed this issue in this appeal,
however, and so we refrain from here determining what level of
proof the State is required to meet.

State v. Oliver
20160582-CA 	12 	2018 UT App 101
preparation of her presentence report.5 From this record, we
must evaluate Oliver’s arguments.
A. 	The Causal Link Between the Overdose and Victim’s
Death
¶25 	We first examine Oliver’s argument that the State failed to
present 	sufficient 	evidence 	to 	prove 	a 	causal 	link 	between
Victim’s overdose and Victim’s eventual death. Even assuming,
without deciding, that no such evidence was introduced into the
record before the district court,6 we conclude that any error in
this regard was invited by Oliver, because Oliver repeatedly
made representations to the district court that assumed precisely
such a causal link.
¶26 	Significantly, at no point in her briefing or argument
before the district court did Oliver ever assert that the State had
failed to demonstrate the requisite causal link between Victim’s
overdose and his death. Instead, Oliver effectively admitted the
fact that Victim died 	of an overdose of methamphetamine,
5. The facts recited in the Background section, above, come from
these sources.
6. Based on our review of the record, Oliver’s argument that the
record 	contains 	no 	admissible 	evidence 	linking 	Victim’s
overdose with Victim’s death appears to be correct. None of the
three sources of facts contained in the thin record includes any
actual evidence that Victim died of a drug overdose. One cannot
infer a causal link from Oliver’s plea to reckless endangerment,
or from Oliver’s statements to either the district court at the plea
hearing or to probation officers during the preparation of her
presentence report. The presentence report refers to an “autopsy
[that] showed [that Victim] died due to drug toxicity,” but the
State concedes that the portion of the presentence report that
references the “autopsy” is inadmissible, and no party sought to
admit any such report before the district court.

State v. Oliver
20160582-CA 	13 	2018 UT App 101
asserting in her briefing before the district court that it was
Victim’s “own ingestion of a large quantity of methamphetamine
that was the proximate cause of his death.” Oliver took this same
position at the restitution hearing, arguing there that “[t]he
proximate 	cause 	of 	[Victim’s] 	death 	unfortunately 	and
practically was his own independent decision to ingest a lethal
quantity of methamphetamine.” While these arguments certainly
raise a challenge to the strength of the causal link between
Oliver’s own actions and Victim’s overdose, they do not call into
question—and, 	indeed, 	effectively 	concede—the 	causal 	link
between 	Victim’s 	overdose 	and 	his 	death. 	Under 	these
circumstances, the argument Oliver makes now, on appeal, that
there is no evidence of such a causal link is not only unpreserved
for appellate review, but Oliver invited any error that might
exist in the district court’s ruling in this regard.
¶27 	“Under the doctrine of invited error, an error is invited
when counsel encourages the trial court to make an erroneous
ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. The
invited error doctrine “discourages parties from intentionally
misleading the trial court so as to preserve a hidden ground for
reversal on appeal,” and it also “gives the trial court the first
opportunity 	to 	address 	[a] 	claim 	of 	error.” 	Id. 	(quotation
simplified). “[I]nvited error precludes appellate review of an
issue.” State v. McNeil, 2013 UT App 134, ¶ 24, 302 P.3d 844, aff’d,
2016 UT 3, 365 P.3d 699. Thus, when an error is invited by an
appellant, we will not review it even for plain error. State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171.
¶28 	Here, Oliver invited any error in the district court’s ruling
by assuming—and even arguing to the district court—that there
existed a sufficient causal link between Victim’s overdose and
his 	death. 	While 	we 	are 	not 	suggesting 	that 	Oliver 	was
intentionally attempting to mislead the district court, Oliver’s
arguments—intentionally or not—did indicate that Oliver was
not contesting the existence of a causal link between Victim’s
overdose and Victim’s death. Had Oliver taken the position,
before the district court, that she considered the State’s proof of a

State v. Oliver
20160582-CA 	14 	2018 UT App 101
causal link between the overdose and the death insufficient, the
State could have easily taken steps at the restitution hearing
(such as introducing the autopsy report into evidence or calling
the medical examiner as a witness) to attempt to prove that
causal link.7 Oliver made no such argument below, and even led
the district court to believe that Victim’s death was caused by a
methamphetamine overdose. We cannot now allow Oliver to
raise the argument here that there is no evidence of any causal
link between the overdose and the death.
¶29 	Accordingly, we conclude that Oliver invited this claim of
error, and we will therefore not address it further. We take it as
an established fact, then, that Victim died as a proximate result
of an overdose of methamphetamine.8
7. For this reason, our preservation doctrines apply here as well,
rendering 	Oliver’s 	specific 	argument 	here 	unpreserved. 	See
Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828 (stating that
“the preservation rule should be more strictly applied when the
asserted new issue or theory depends on controverted factual
questions whose relevance thereto was not made to appear at
trial” (quotation simplified)).
8. On remand, the existence of a sufficient causal relationship
between Victim’s overdose and Victim’s death must be taken as
established, because that issue is now the law of the case.
“[U]nder the law of the case doctrine, a decision made on an
issue during one stage of a case is binding on successive stages
of the same litigation.” IHC Health Services, Inc. v. D & K Mgmt.,
Inc., 2008 UT 73, ¶ 26, 196 P.3d 588 (quotation simplified). The
mandate rule, a subset of the law of the case doctrine, “binds
both the district court and the parties to honor the mandate of
the appellate court.” Id. ¶ 28. Under this rule, “the decisions of
an appellate court become the law of the case and cannot be
reconsidered on remand.” Mid-America Pipeline Co. v. Four-Four,
Inc., 2009 UT 43, ¶ 13, 216 P.3d 352. Because the district court
(continued…)

State v. Oliver
20160582-CA 	15 	2018 UT App 101
B. 	The Causal Link Between Oliver’s Conduct and Victim’s
Overdose
¶30 	While Oliver cannot here challenge the strength of the
causal link between Victim’s overdose and his death, Oliver can9
and does challenge the strength of the causal link between her
criminal 	conduct 	and 	Victim’s 	drug 	overdose. 	Specifically,
Oliver asserts that the State did not present evidence sufficient to
establish a proximate causal link between her conduct and
Victim’s drug overdose. Based on the record and procedural
posture of this case, we find Oliver’s arguments persuasive.
¶31 	As 	noted 	above, 	proximate 	cause 	contains 	two 	basic
elements: (1) but-for causation, and (2) foreseeability. See Dee,
2012 UT App 237, ¶¶ 4–5. The State persuasively argues that
Oliver effectively conceded the existence of but-for causation
when her attorney stated in open court at the plea hearing that
(…continued)
made a ruling on the issue of a causal link between Victim’s
methamphetamine use and his overdose, and because Oliver
invited any error in that ruling and is therefore prevented from
appealing it, Oliver cannot re-litigate that issue on remand.
9. In its brief, the State argued that Oliver’s general causation
argument 	was 	unpreserved, 	because 	Oliver 	phrased 	her
arguments to the district court in terms of “proximate causation”
rather than in terms of the then-applicable “modified but-for”
causation standard. Oliver, however, was ahead of her time—as
noted, in Ogden our supreme court repudiated the “modified
but-for” test and held that principles of proximate causation are
to be applied in the restitution context. See Ogden, 2018 UT 8,
¶ 39; see also Mast, 2001 UT App 402, ¶ 24 (using “proximate
cause” 	terminology 	in 	the 	restitution 	context, 	even 	before
Ogden). 	Especially 	in 	light 	of 	Ogden, 	we 	have 	no 	trouble
concluding 	that 	Oliver 	preserved 	her 	general 	causation
arguments for appellate review.

State v. Oliver
20160582-CA 	16 	2018 UT App 101
Oliver “was residing in a home where she allowed two other
people 	to 	use 	methamphetamine 	that 	resulted 	in 	the
overdose . . . .” The district court asked Oliver if that was “what
happened,” and Oliver answered affirmatively. Thus, we agree
with the State that Oliver has conceded that allowing Victim into
her home to smoke methamphetamine set in motion a chain of
events that “produced the injury, and without which the injury
would not have occurred.” Id. ¶ 4 (quotation simplified). We
agree with the State that Oliver has effectively admitted the
existence of at least a but-for causal link between her actions and
Victim’s overdose—if Boyfriend, with Oliver’s tacit approval,
had not invited Victim and Friend over to their house to “smoke
a 	bowl,” 	Victim 	would 	not 	have 	overdosed 	on
methamphetamine.
¶32 	Oliver argues, however, that the causal nexus is too
attenuated to constitute proximate cause. Specifically, Oliver
asserts that Victim died not from smoking methamphetamine
together with her and Boyfriend but, rather, died from his own
later 	additional 	oral 	ingestion 	of 	methamphetamine 	in 	the
bathroom, events she maintains she knew nothing about and did
not sanction. As she puts it, she “did not allow [Victim] to
parachute additional amounts of methamphetamine” and “could
not 	have 	foreseen 	that 	[Victim] 	would 	secretly 	swallow 	a
dangerous 	amount 	of 	methamphetamine 	in 	addition 	to
smoking.”
¶33 	Although Oliver does not phrase it in precisely this way,
she is effectively arguing that a “superseding cause” broke the
chain of causation.10 Under Utah law, “[a] superseding cause is
10. Before the district court, Oliver phrased her superseding
cause 	argument 	more 	explicitly, 	asserting 	in 	her 	written
memorandum 	that 	Victim’s 	“decision 	to 	ingest
methamphetamine was the ‘new cause’ or the intervening event
that was the direct and proximate cause” of his death, and
arguing during the restitution hearing that the causal link was
(continued…)

State v. Oliver
20160582-CA 	17 	2018 UT App 101
an unforeseeable act of subsequent negligence that severs the
causal connection to an initial causal act.” Thayer v. Washington
County Sch. Dist., 2012 UT 31, ¶ 61, 285 P.3d 1142 (Lee, J.,
dissenting); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 488
(Utah Ct. App. 1991) (stating that a “more recent negligent act
may break the chain of causation and relieve the liability of a
prior negligent actor”) (quotation simplified), aff’d, 862 P.2d 1342
(Utah 1993). A superseding cause is a magical thing: it operates
to relieve the original actor from all liability for her original (and
potentially tortious) act. See Steffensen, 820 P.2d at 488 (stating
that 	a 	superseding 	cause 	“relieve[s] 	the 	liability 	of 	a prior
negligent actor”); see also Restatement (Second) of Torts, § 440
cmt. b (Am. Law Inst. 1965) (stating that “[a] superseding cause
relieves the actor from liability, irrespective of whether his
antecedent negligence was or was not a substantial factor in
bringing about the harm”).11
(…continued)
“broken by the intervening factor, the independent intervening
action” of Victim swallowing methamphetamine.
11. 	By 	relieving 	the 	original 	tortfeasor 	of 	all 	liability, 	the
superseding cause doctrine is at least arguably inconsistent with
principles of comparative fault, which have been a part of Utah
law since at least 1973. See Graves v. North E. Services, Inc., 2015
UT 28, ¶ 44, 345 P.3d 619 (stating that “[d]ecades ago our
legislature abrogated the common law doctrine of contributory
negligence” when it adopted the “1973 Comparative Negligence
Act”). 	However, 	we 	have 	previously 	stated 	that 	“we 	are
skeptical . . . that the comparative negligence statute supplanted
the doctrine of superseding cause,” because on many occasions
since 1973 Utah appellate courts have continued to refer to and
apply the doctrine. See Gardner v. SPX Corp., 2012 UT App 45,
¶ 35, 272 P.3d 175 (citing cases). In this case, however, we need
not directly address the question, because no party mounts any
argument here that the superseding cause doctrine has been
(continued…)

State v. Oliver
20160582-CA 	18 	2018 UT App 101
¶34 	This 	doctrine, 	however, 	only 	applies 	to 	relieve 	the
original 	negligent 	actor 	of 	liability 	when 	the 	subsequent
negligent act is not “reasonably foreseeable” to the original actor.
Steffensen, 	820 	P.2d 	at 	488. 	Indeed, 	a 	“superseding 	cause,
sufficient to become the proximate cause of the final result and
relieve [the original actor] of liability for his original negligence,
arises only when an intervening force was unforeseeable and
may 	be 	described 	with 	the 	benefit 	of 	hindsight, 	as
extraordinary.” Id.; see also Harris v. Utah Transit Auth., 671 P.2d
217, 219 (Utah 1983) (stating that a subsequent act of negligence
is not a superseding cause if either (a) the original actor “should
have realized” the third person might so act; (b) a reasonable
person “would not regard” the third person’s actions as “highly
extraordinary”; 	or 	(c) 	the 	“intervening 	act 	is 	a 	normal
consequence of a situation created by the actor’s conduct and the
manner in which it is done is not extraordinarily negligent”
(quoting Restatement (Second) of Torts § 447 (Am. Law Inst.
1965))).12
(…continued)
supplanted by Utah’s comparative fault statutes. We therefore
assume, 	without 	deciding, 	that 	the 	doctrine 	retains 	its
robustness.
12. The superseding cause doctrine does not apply where the
original tortfeasor is accused of committing intentional torts. See
Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 4, 254 P.3d 161 (stating
that “intervening and superseding causes are not a defense to
intentional torts”). However, the relevant crime to which Oliver
pled guilty does not require intent; it requires only that Oliver
have 	acted 	recklessly. 	See 	Utah 	Code 	Ann. 	§ 	76-5-112(1)
(LexisNexis 2017) (stating that “[a] person commits reckless
endangerment if . . . the person recklessly engages in conduct that
creates a substantial risk of death or serious bodily injury to
another 	person” 	(emphasis 	added)). 	The 	State 	makes 	no
argument that the superseding cause doctrine does not apply
(continued…)

State v. Oliver
20160582-CA 	19 	2018 UT App 101
¶35 	The State asserts that the requisite causal link between
Oliver’s actions and Victim’s death is present here, because
“Defendant’s admissions that she allowed Victim in her home to
use methamphetamine and that Victim overdosed as a result
establish[] that Defendant was at least a substantial causative
factor in Victim’s death.” But the State’s argument misses the
mark, because even if we were to assume that Oliver’s actions
were 	a 	“substantial 	causative 	factor” 	in 	Victim’s 	death, 	see
McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah
1993) (stating that “[t]o establish proximate cause, [a plaintiff]
must prove that [the defendant’s] conduct was a substantial
causative factor leading to his injury,” and that “there can be
more than one proximate cause . . . of an injury”), Oliver will
nevertheless be absolved of monetary liability if there exists a
superseding cause of Victim’s death, see Restatement (Second) of
Torts § 440 cmt. b (Am. Law Inst. 1965) (stating that “[a]
superseding cause relieves the actor from liability, irrespective of
whether his antecedent negligence was or was not a substantial
factor in bringing about the harm”).
¶36 	And 	the 	district 	court 	simply 	did 	not 	meaningfully
engage with Oliver’s argument, explicitly made below, that
Victim’s own actions constituted a superseding cause of his
death. The district court’s ruling on the subject comprised one
paragraph, as follows:
While the victim did ingest the methamphetamine,
that did not absolve [Oliver] of her culpability for
the pecuniary damages. By her own statement, she
allowed the victim to come to her home to smoke
methamphetamine. This in 	itself 	was recklessly
engaging in conduct that created a substantial risk
(…continued)
where the tortfeasor is accused of committing reckless actions,
and we therefore assume, without deciding, that the doctrine is
available to Oliver under these circumstances.

State v. Oliver
20160582-CA 	20 	2018 UT App 101
of death or serious bodily injury to the victim;
allowing 	and 	abetting 	someone 	to 	ingest
methamphetamine is inherently risky. It was also
foreseeable 	that 	allowing 	someone 	to 	ingest
methamphetamine 	either 	by 	smoking 	or
swallowing could lead to death or serious bodily
injury.
While the district court did generally discuss whether Victim’s
death was or should have been foreseeable to Oliver, the district
court did not specifically discuss whether Victim’s actions in
parachuting 	methamphetamine 	were 	or 	should 	have 	been
foreseeable 	to 	Oliver, 	or 	whether 	those 	actions 	were
“extraordinary.” 	See 	Steffensen, 	820 	P.2d 	at 	488 	(quotation
simplified). A ruling on this point is necessary in order to
determine whether Victim’s actions constituted a superseding
cause of his death.
¶37 	We could nevertheless affirm the district court’s ruling if
we were convinced that the record on appeal supported a
determination 	that 	Victim’s 	actions 	in 	parachuting
methamphetamine were not extraordinary and were (or should
have been) foreseeable to Oliver. See Bailey v. Bayles, 2002 UT 58,
¶ 10, 52 P.3d 1158 (stating that “an appellate court may affirm
the judgment appealed from if it is sustainable on any legal
ground or theory apparent on the record, even though such
ground or theory differs from that stated by the trial court”
(quotation simplified)). But we are not so convinced.
¶38 	As noted above, the record in this case is spare, and
allows us to draw facts from only three sources: any facts
necessarily implied by Oliver’s plea; the one brief paragraph of
facts Oliver admitted during the plea colloquy; and Oliver’s
personal statement to probation officers. The State made no
effort to supplement that factual record through testimony or
documents. These factual sources tell us almost nothing about
whether Victim’s actions in parachuting methamphetamine were
extraordinary, or whether they should have been foreseeable to

State v. Oliver
20160582-CA 	21 	2018 UT App 101
Oliver. 	While 	it 	is 	possible 	that 	such 	a 	conclusion 	could
reasonably be drawn after a more complete restitution hearing
on 	remand, 	the 	record 	before 	us 	now 	hardly 	compels 	the
conclusion that Victim’s actions were not extraordinary and
were (or should have been) foreseeable to Oliver.
¶39 	The district court did not hear testimony from Oliver, and
therefore we know very little about whether Oliver actually
could 	have 	foreseen 	that 	Victim 	and 	Friend 	would, 	after
smoking methamphetamine, retreat to the bathroom for the
purpose of parachuting additional methamphetamine. We know
from her statement to the probation officers that she “did not
know” that Victim and Friend were going to swallow additional
methamphetamine. But we do not know whether Victim and
Friend had ever done such a thing before; whether Oliver knew
that Victim and Friend were prone to such activity; whether
Oliver 	had 	ever 	parachuted 	methamphetamine 	before; 	or
whether Oliver knew that parachuting methamphetamine was
even a thing.
¶40 	The district court likewise did not hear any evidence
about parachuting in general, other than the fact that Victim and
Friend 	had 	used 	that 	method 	to 	ingest 	additional
methamphetamine 	on 	the 	day 	in 	question. 	There 	was 	no
testimony that, for instance, parachuting is a common way of
ingesting methamphetamine; no witness, expert or lay, informed
the 	district 	court 	that 	persons 	familiar 	with 	using
methamphetamine would likely know about, and be able to
foresee 	the 	probability 	of, 	persons 	ingesting 	the 	drug 	by
swallowing it.13 For all we know from this record, it is at least
13. Likewise, no evidence was provided regarding the medical
effects 	of 	swallowing 	(as 	opposed 	to 	smoking)
methamphetamine. The record does not inform us whether such
a method has a faster or slower effect on the user, and sheds no
light 	on 	the 	extent 	to 	which 	Victim’s 	ingestion 	of
methamphetamine made it more likely that he would overdose.

State v. Oliver
20160582-CA 	22 	2018 UT App 101
equally likely that ingesting methamphetamine by parachuting it
is extremely rare and not the type of thing that happens as a
matter of course following smoking.
¶41 	Had the district court made a factual finding, based on
competent evidence, that Victim’s actions were foreseeable, we
would have deferred to such a finding. But the district court
made no such determination, and we are unable to affirm on
alternative 	grounds 	because 	the 	record 	before 	us 	does 	not
compel 	the 	conclusion 	that 	Oliver 	reasonably 	should 	have
foreseen Victim’s actions.
II. Joint and Several Liability
¶42 	Oliver next argues that the district court erred in holding
her 	jointly 	and 	severally 	liable 	with 	Boyfriend 	for 	the 	full
amount of the restitution. As discussed above, this issue is
unpreserved. Therefore, we review it for plain error. To prevail
under a plain error review, Oliver must establish that (1) an error
exists, (2) the error should have been obvious, and (3) the error
prejudiced her. Johnson, 2017 UT 76, ¶ 20. Oliver’s argument
founders 	on 	the 	second 	element, 	because 	Oliver 	cannot
demonstrate that the district court made an “obvious” error.
¶43 	“For an error to be obvious to the trial court, the party
arguing for the exception to preservation must show that the law
governing the error was clear or plainly settled at the time the
alleged error was made.” Id. ¶ 21 (quotation simplified); see also
State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997) (stating that
“a trial court’s error is not plain where there is no settled
appellate law to guide the trial court”). The question of whether
concepts of comparative fault apply in the restitution context—
and whether the civil law’s abolition of joint and several liability
should be imported into the restitution arena—is an interesting
and multifaceted one that has not yet been answered by Utah’s
appellate courts. There is no doubt that, one day, that question
will be properly raised and addressed. But for the time being,
there is no “settled appellate law” governing the question, and

State v. Oliver
20160582-CA 	23 	2018 UT App 101
we therefore cannot conclude that, by imposing a joint and
several restitution order, the district court committed a plain and
obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (to
establish obvious error, the defendant “must show that the law
governing the error was clear at the time the alleged error was
made”). Accordingly, Oliver has not shown that the district
court plainly erred by requiring her to pay restitution jointly and
severally with Boyfriend.14
CONCLUSION
¶44 	For the reasons set forth herein, we vacate the district
court’s restitution order, and remand this case to the district
court for additional restitution proceedings consistent with this
opinion, including potentially a new restitution hearing, during
which 	the 	district 	court 	should 	reconsider 	the 	question 	of
whether there exists a sufficient causal link between Oliver’s
actions and Victim’s overdose, and should specifically consider
whether Victim’s actions in parachuting methamphetamine were
a superseding cause of his death.
CHRISTIANSEN, Judge (concurring):
¶45 	Based upon the Utah Supreme Court’s recent decision in
State 	v. 	Ogden, 	2018 	UT 	8, 	and 	its 	determination 	that 	the
14. 	As 	with 	Oliver’s 	argument 	challenging 	the 	causal
relationship between Victim’s overdose and Victim’s death, see
supra ¶ 29 & n.8, Oliver is precluded from reasserting this
challenge on remand because our resolution of this issue is now
the law of the case. See Mid-America Pipeline Co., 2009 UT 43,
¶ 13; IHC Health Services, Inc., 2008 UT 73, ¶ 26. Because Oliver
failed to properly raise the issue in this appeal, Oliver will not be
permitted to resurrect it on remand.

State v. Oliver
20160582-CA 	24 	2018 UT App 101
“proximate 	cause” 	standard 	of 	causation 	should 	apply 	in
criminal 	restitution 	cases, 	I 	concur 	with 	the 	lead 	opinion’s
decision that this case must be remanded because the district
court did not address the issue of foreseeability and consider
specifically 	whether 	Victim’s 	actions 	in 	parachuting 	more
methamphetamine was a superseding cause of his death. I write
separately, however, to emphasize a point about the causation
standard in criminal restitution hearings that was recognized in
Ogden, which point stems from prior Utah Supreme Court and
Utah Court of Appeals decisions.
¶46 	In State v. Robinson, 860 P.2d 979 (Utah Ct. App. 1993), this
court stated that “[m]atters of negligence, proximate cause and
the amount of resulting damages are best left to civil litigation.”
Id. at 983. The Utah Supreme Court agreed in State v. Laycock,
2009 UT 53, 214 P.3d 104—at least in dicta—when the court
noted 	that 	“there 	are 	procedural 	safeguards 	available 	to 	a
litigant in a civil setting that are unavailable in a criminal
restitution proceeding. When the facts of a case are limited or
unclear, 	the 	civil 	setting 	is 	the 	best 	place 	for 	them 	to 	be
determined.” Id. ¶ 29. The Ogden court again acknowledged this
point 	when 	it 	recognized 	“a 	number 	of 	the 	difficulties 	a
sentencing court [might] face in trying to resolve issues of
causation and losses, most notably a lack of opportunity for
discovery that would allow a defendant to ‘raise issues of
proximate 	cause 	and 	comparative 	negligence 	by 	using
depositions and interrogatories to gather relevant information.’”
2018 UT 8, ¶ 42 (quoting Laycock, 2009 UT 53, ¶ 22). But based
upon a plain language analysis of the Crime Victims Restitution
Act, our supreme court determined that the Utah Legislature
intended that the same causation standard applied in a civil
action would apply in the criminal restitution context. Id. ¶ 38.
¶47 	Clearly, “the best evidence of the legislature’s intent is the
plain language of the statute itself,” and I cannot disagree with
the 	supreme 	court’s 	analysis 	in 	Ogden. 	Id. 	¶ 	31 	(quotation
simplified). However, I think it is important to keep in mind all
of the practical limitations a sentencing court faces in ordering

State v. Oliver
20160582-CA 	25 	2018 UT App 101
restitution in a criminal case. If the Utah Legislature did not
intend for proximate cause to be the standard applied in the
criminal restitution context, it may want to amend the Crime
Victims Restitution Act.