People v. Dyson

492 P.3d 1070

2021 COA 57

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Anthony Douglas DYSON, Defendant-Appellant.

Court of Appeals No. 19CA0459

Colorado Court of Appeals, Division A.

Announced April 29, 2021

Rehearing Denied May 27, 2021

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, Anthony Douglas Dyson, appeals the trial court's order requiring him to pay $8,999 in restitution to the victim. We affirm in part, vacate in part, and remand with directions.

I. Background

¶ 2 Dyson pleaded guilty to attempted first degree (after deliberation) murder in exchange for a stipulated sentence of thirty-five years’ imprisonment in the custody of the Department of Corrections. He had attacked his ex-wife, B.D., fracturing her cervical spine and skull in such a manner as to leave skull fragments lodged in her brain. Further, as B.D. was being admitted to the hospital, she suffered a stroke. She spent a month on a respirator in an induced coma, underwent seven surgeries, and spent months at a rehabilitation facility.

¶ 3 Following her release from the rehabilitation facility, B.D. received, from a spa called Ageless Aesthetics, three procedures related to her face and neck. These procedures encompassed two injections of Kybella (deoxycholic acid) and an injection of Juvederm (hyaluronic acid ).

¶ 4 B.D.’s insurer — Medicaid — declined to pay for these procedures because they were deemed to be cosmetic in nature. Indeed, Ageless Aesthetics offers (1) Kybella injections to dissolve age-related accumulated dietary fat from the chin and (2) Juvederm to fill the lines around the mouth and in some instances to add volume to thin and aging skin.

¶ 5 B.D. sought restitution for the cost of the procedures.

¶ 6 Upon Dyson's objection, the trial court instructed the prosecution to obtain a doctor's certification that the Ageless Aesthetics procedures were medically necessary and not merely elective cosmetic treatments. Neither the prosecution nor B.D., however, produced such a certification.

¶ 7 Instead, B.D. produced a letter from an administrator at Ageless Aesthetics that said, in pertinent part:

The following treatment has been suggested for patient [B.D.].

Kybella (Deoxycholic acid) injections in a series of 2 treatments. This treatment is part of the facial reconstructive process that [B.D.] has been undergoing, since March 2017. Patient is also undergoing dermal filler treatment (hyaluronic acid ) to reconstruct volume loss in face and jawline.¹

¶ 8 The trial court awarded B.D. $8,999 in restitution for the three Ageless Aesthetics procedures and a membership for part of a year to a fitness club.² In its oral ruling, the court noted that

[a]t the last hearing, the Court did indicate that the best evidence would be to have the information from a doctor. However, ... [t]here is no case law that indicates that the victim cannot testify to her own medical conditions that this Court has been able to find nor does it require an expert to come in and testify to those issues ....

So long as the Court finds the witness to be credible, the Court can rely on that as well as the exhibits that have been offered.

The Court does find [B.D.] to be a credible witness ....

¶ 9 With respect to the Ageless Aesthetics procedures, specifically, the court found:

[B.D.] indicated that when she was at University Hospital, she spoke with four doctors who said she would need additional treatment on her neck and scalp.

Specifically, Dr. Witt told her that that area would stay loose and she'd have to work on that ....

[B.D.] also indicated that her discussions around the issues with her face were mostly based on the fact that her stroke caused the left side of her face to be not oriented correctly ....

[The] letter from Ageless Aesthetics indicated the following treatment has been suggested for patient [B.D.]. It refers to ... [a] facial reconstructive process that [B.D.] has been undergoing .... That letter also indicates if [the] patient is undergoing dermal filler treatment to reconstruct volume loss in her face and jaw line.

While on the stand, the victim ... testified that after the assault, her face did not look the same.

....

There's no testimony [B.D.] was doing this in order to look younger or for any reason other than trying to get her face back to what it looked like and her neck to what it looked like to the best of her ability prior to the assault.

¶ 10 On appeal, Dyson contends that (1) the prosecution presented insufficient evidence to support the award of restitution to B.D. for the procedures performed by Ageless Aesthetics; and, alternatively, (2) the court awarded B.D. an erroneous amount of restitution for those treatments.³ As will be seen below, we disagree with Dyson's first contention but agree with his second one.

II. Dyson's Responsibility to Pay for the Ageless Aesthetics Procedures

¶ 11 Dyson contends that the evidence was insufficient to show that his conduct was the proximate cause of the victim's need for the Kybella and Juvederm procedures. We are not persuaded.

¶ 12 The goal of the restitution statute is to make victims whole for the harms suffered as the result of a defendant's criminal conduct. People v. Perez , 2017 COA 52M, ¶ 13, 413 P.3d 266. Consequently, a victim has a right to restitution for "any pecuniary loss suffered by a victim ... [that is] proximately caused by an offender's conduct ...." § 18-1.3-602(3)(a), C.R.S. 2020. "[T]he prosecution bears the burden of proving by a preponderance of the evidence not only the victim's losses, but also that the victim's losses were proximately caused by the defendant's criminal conduct." People v. Martinez-Chavez , 2020 COA 39, ¶ 14, 463 P.3d 339.

¶ 13 "Proximate cause in the context of restitution is defined as a cause which in natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained." People v. Rice , 2020 COA 143, ¶ 24, 478 P.3d 1276 (citing People v. Rivera , 250 P.3d 1272, 1274 (Colo. App. 2010) ). Thus, a court should not order a defendant to pay restitution for losses that "did not stem from the conduct that was the basis of the defendant's conviction." Rivera , 250 P.3d at 1274.

¶ 14 "More than speculation is required for a defendant to bear responsibility for a victim's loss[,] [b]ut the prosecution is not required to prove restitution by the same quality of evidence required in a trial on the merits of the case." People in Interest of A.V. , 2018 COA 138M, ¶ 24, 446 P.3d 887 (citations omitted). The preponderance of evidence standard only requires proof that "the existence of a contested fact is ‘more probable than its nonexistence.’ " People v. Taylor , 618 P.2d 1127, 1135 (Colo. 1980) (quoting Page v. Clark , 197 Colo. 306, 318, 592 P.2d 792, 800 (1979) ).

¶ 15 Whether there was sufficient evidence to support a restitution award is a matter we review de novo. People v. Stone , 2020 COA 24, ¶ 7, 471 P.3d 1159. In undertaking such review, we ask "whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, establishes by a preponderance of the evidence that the defendant caused that amount of loss." Id. (quoting People v. Barbre , 2018 COA 123, ¶ 25, 429 P.3d 95 ). "[W]e draw every inference fairly deducible from the evidence in favor of the court's decision," and "[w]e will not disturb a district court's findings and conclusions if the record supports them, even though reasonable people might arrive at different conclusions based on the same facts." People in Interest of S.G.L. , 214 P.3d 580, 583 (Colo. App. 2009) (analyzing sufficiency of evidence to sustain a dependency and neglect adjudication under a preponderance of evidence standard).

¶ 16 On appeal, Dyson asserts the following:

• The Ageless Aesthetics procedures "were purely cosmetic and not medically necessary."

• "They were designed to counter the natural effects of aging and wholly unrelated to [B.D.’s] skull fracture and stroke."

• "There was no medical proof that [B.D.’s] coma caused a swollen neck," or that "Kybella is a medically appropriate treatment for medical swelling."

• "The advertised and proven purpose of Kybella — to dissolve chin fat — bears no resemblance to B.D.’s desired outcome — to eliminate excess skin."

• The need for the Juvederm injection to B.D.’s mouth and jawline was not caused by Dyson's assault either: B.D.’s claim that her smile was crooked from facial nerve damage sustained as a result of her stroke was fatally undermined by the lack of reference to such damage in B.D.’s medical records.

¶ 17 We are not persuaded.

¶ 18 Initially, we note that like the trial court, we are unaware of any Colorado authority requiring that a request for restitution be supported by expert testimony to the effect that a service affecting one's appearance was medically necessary.

¶ 19 We are, however, aware of opinions from elsewhere rejecting the requirement Dyson would have us impose. See, e.g. , In re Doe , 146 Idaho 277, 192 P.3d 1101, 1109 (Ct. App. 2008) (concluding it was error to require "testimony or evidence beyond that of the victim and his medical bills to establish a prima facie case of the necessity and reasonableness" of the request for restitution); State v. Nebrensky , No. 44937, 2018 WL 1885680, at *5 (Idaho Ct. App. Apr. 20, 2018) (unpublished opinion) ("The State presented substantial and competent evidence to establish actual and proximate cause for the victim's medical expenses. The victim proved, beyond a preponderance of the evidence, that every item requested for reimbursement is related to the abuse the victim suffered from Nebrensky. Contrary to Nebrensky's argument, expert testimony is not necessary to...