State Of Utah V. Michael J. Birkeland

2011 UT App 227
Filed July 14, 2011

Mr. Birkeland pled no contest to the theft of a laptop computer belonging to Utah Valley University art professor Perry Stewart. When authorities recovered the laptop two days after the theft, almost all of its files had been deleted. Professor Stewart went to great effort to recover the files. He took the laptop to a service center which was able to recover many of the files at a cost of $80. However, Stewart then had to spend 350 hours renaming and reorganizing the recovered files. In addition, Stewart spent 600 hours recreating unrecoverable power point presentations used in his teaching. The district court ordered Mr. Birkeland to pay restitution for the cost of the service center. It also determined that labor constituted pecuniary damages and ordered restitution for the value of Professor Stewart’s time. The court determined that 238 of the 950 hours Professor Stewart spent were above and beyond what he would have spent on file maintenance as part of his salaried position and assigned a compensable value of $41 per hour based on his UVU salary. Mr. Birkeland appealed the restitution award for Professor Stewart’s time to the Utah Court of Appeals.

Mr. Birkeland’s criminal defense attorney argued that Professor Stewart’s time was noncompensible for restitution purposes because under Utah’s restitution statute Stewart could only be compensated for “pecuniary damages,” and, as a salaried employee Stewart was already compensated for his time through his salary and so did not suffer any losses. The court of appeals, however, found no error in the district court’s finding that Stewart had suffered economic loss and decision to award restitution for the hours he was forced to spend above and beyond the normal hours of his employment.

Mr. Birkeland’s criminal defense attorney also argued that the restitution order was not proper because he had only pled no contest to the charge of theft of the computer and had not admitted to damaging or deleting computer files. In resolving this issue, the court of appeals looked to Utah’s test for determining whether pecuniary damages actually arise out of criminal activities: “(1) the damages would not have occurred but for the [criminal activities] and (2) the causal nexus between the [criminal] conduct and the loss . . . is not too attenuated . . . .” Under the first prong, the court of appeals held that but for Mr. Birkeland’s theft of the computer the files would not have been lost. Under the second prong, the court of appeals held that the deletion of the files was consistent with Mr. Birkeland’s admitted intent to steal the computer and, presumably, to prepare it to be sold by clearing the memory. Therefore, the court of appeals affirmed the restitution award.