Opinion
No. 2 CA-CR 2018-0342
08-11-2020
The STATE of Arizona, Appellee, v. James R. LAPAN Jr., Appellant.
Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief Counsel, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant
Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief Counsel, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee
Joel Feinman, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant
Presiding Judge Staring authored the opinion of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 James LaPan appeals from his convictions and sentences for first-degree murder and first-degree burglary, as well as the trial court's restitution order. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against LaPan. See State v. Murray , 247 Ariz. 583, ¶ 2, 454 P.3d 1018 (App. 2019). On Monday, July 18, 2016, N.M.’s fiancé found him dead at home with multiple gunshot wounds. Based on a neighbor's report of hearing a loud noise, detectives believed N.M. had been shot at approximately 4:00 a.m. from the roof of his patio, which provided a view into his master bedroom.
¶3 Detectives found multiple .45 caliber shell casings inside the home and in the backyard, which bore marks consistent with having been fired from a handgun fitted with a suppressor. Detectives also found blood on the exterior wall of the master bedroom by the window, the outside windowsill and blinds, a wall inside the closet, the bathroom counter, and the lid of a mouthwash bottle on the bathroom floor, as well as DNA on the mouthwash lid and a pair of scissors in the bathroom. It appeared to detectives that the shooter had also bled and "as if somebody had tried to clean [it] up" because of the bottles of cleaning products in the master bedroom, broken window glass that appeared to have been swept into a pile, a piece of the master bedroom carpet that appeared to have been cut and was missing, and mouthwash that had been poured on the bathroom floor.
¶4 Three days later, detectives went to N.M.’s workplace, an aerospace company, and spoke to several employees, including LaPan. LaPan told detectives that he had issues with N.M., the most recent of which resulted in him filing a formal grievance against N.M. the Friday before the murder. LaPan also said N.M. previously had dated a woman named J.P.—with whom, according to LaPan's wife, LaPan had recently been having an affair. LaPan volunteered that he was a "precision marksman" and owned several firearms, including a .45 caliber handgun. When detectives asked LaPan about a "deep" cut on his forearm, he said he sustained the wound from falling through an airplane hatch at work the Saturday before the murder and ripped it open again that same evening while playing with his children. LaPan's coworkers confirmed that they had seen LaPan fall through an airplane hatch. LaPan also told detectives he was asleep at home with his wife the night of Sunday, July 17, woke up at 5:00 a.m. on Monday, and exercised with his wife before she went to work. LaPan's wife corroborated his statement, saying that as far as she knew, he was in bed with her all night, and she "d[id]n't think" he could have gotten up without her hearing him.
¶5 Detectives executed a search warrant for LaPan's home, where they found several boxes of .45 caliber ammunition and a bucket of spent casings that included two .45 casings that were the same brand as the casings found at N.M.’s home, as well as boxes for a .45 semi-automatic handgun and a suppressor to fit such a firearm. Detectives also searched LaPan's vehicles and found fibers that appeared to match the carpet that had been cut in N.M.’s bedroom. Subsequent testing revealed that DNA and blood collected from the murder scene matched LaPan's.
¶6 The state charged LaPan with one count of first-degree murder and one count of first-degree burglary. After a nine-day jury trial, LaPan was convicted as charged and sentenced to concurrent prison terms, the longest of which is natural life. The trial court entered a restitution order compensating N.M.’s brother for his use of annual leave as a result of N.M.’s death, and the subsequent investigation, trial, and sentencing. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶7 On appeal, LaPan argues the trial court erroneously denied his motion to suppress evidence, abused its discretion by declining to admonish the prosecutor for asking venire members during jury selection whether their friends or family would describe them as a "sucker," and improperly awarded restitution to N.M.’s brother for his use of annual leave.
Motion to Suppress
¶8 LaPan argues the trial court erroneously denied his motion to suppress evidence seized during a search of his home because the detective "intentionally or recklessly omitted material information from her affidavit, in violation of Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." When reviewing the denial of a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to upholding the court's ruling. State v. Goudeau , 239 Ariz. 421, ¶ 26, 372 P.3d 945 (2016). "A trial court's finding on whether the affiant deliberately included misstatements of law or excluded material facts is a factual determination, upheld unless ‘clearly erroneous.’ " State v. Buccini , 167 Ariz. 550, 554, 810 P.2d 178, 182 (1991) (quoting United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986) ).
¶9 Before trial, LaPan requested a Franks hearing to challenge the evidence seized pursuant to what he alleged was an "unlawful" search warrant. LaPan argued the "affidavit recklessly omitted known material facts, and in doing so exaggerated the strength of the evidence against [him] and created an illusion of probable cause where none existed." He also argued the detective "repeatedly attempted to discount LaPan's account" by describing the airplane hatch as where he "allegedly" fell and that it was improper for her to include her opinion that the cut on LaPan's arm was inconsistent with his explanation of falling through the airplane hatch.
LaPan filed a separate motion to suppress focused specifically on "the warrant's authorization to seize a breathtaking array of electronic data without any probable cause whatsoever." The trial court granted that motion and suppressed all electronic data seized pursuant to the warrant.
¶10 The affidavit submitted in support of the warrant included the following information: Three days after the murder, detectives spoke with LaPan, who told detectives he "ha[d] issues with [N.M.] at work," as N.M. had previously accused him of being on an electronic device, "berated him across the room in front of fellow employees," and a recent argument had resulted in LaPan filing a formal grievance against N.M.; N.M. had previously dated J.P., with whom LaPan had also recently been involved; LaPan told detectives he was a trained "precision marksman" and owned several firearms, including a .45 handgun; when police noticed a "deep gouge and scratches that appear[ed] to be a few days old," LaPan "advised that he had fallen through a hatch in an airplane floor on July 16" and did not seek medical attention for the cut; and two of LaPan's coworkers said they had seen LaPan fall into the hatch. The affidavit stated that after seeing the airplane hatch LaPan had fallen through, the affiant concluded "the injury on [his] left forearm is inconsistent" with him falling through the hatch. The affidavit also included LaPan's statement that he was in bed asleep with his wife from approximately 8:30 p.m. until 5:00 a.m. on the night of the murder, and that his wife corroborated the statement.
¶11 Detectives believed that "[d]ue to the evidence at the scene ... the individual who committed this homicide[ ] climbed onto the back patio roof, entered through the upstairs master bedroom" and, based on the blood found on and outside the window, "sustained injuries while going through the window." Detectives knew that DNA from the scene belonged to one male and "[i]t appear[ed] the perpetrator had some type of weapons training" due to "the skills needed to complete such precision shooting in a tactical manner." The bullet casings found at the scene were all the same "obscure brand," had "distinct extraction and ejector markings," and were fired from the same weapon. Additionally, before seeking the search warrant at issue, the detective had received information that seven months before the murder, LaPan had gone to a machine and fabrication shop where he requested equipment related to repairing a firearm suppressor.
¶12 Based on that information, detectives believed LaPan's house and vehicles may have contained evidence of N.M.’s murder, including the weapon used, "items capable of reducing the sound and recoil of a firearm," ammunition, electronic devices and cell phones, evidence from the crime scene including shards of glass, "carpet cut outs or carpet fibers," and bullet casings. Detectives also sought to search LaPan's person for DNA, fingerprints, and photographs to document his injuries. The warrant was issued and authorized the seizure of any firearms or items related to firearms, electronic devices, any physical items and clothing "deemed relating to this crime," LaPan's DNA, fingerprints, and photographs of him, as well as forensic processing of LaPan's home and vehicles, and their contents, including carpet cut-outs, fingerprints, and DNA.
As previously noted, the trial court later suppressed all electronic data seized pursuant to the warrant.
¶13 At the hearing on LaPan's motion to suppress, he argued the following omissions from the affidavit were "extremely material to the case": (1) N.M.’s neighbor, S.K., had told the detectives she saw a blonde man with a red face drive by N.M.’s house; (2) LaPan told the detectives, and his wife confirmed, he was home when the murder occurred around 4:00 a.m., as LaPan went to sleep around 8:30 p.m. and woke up at 5:00 a.m.; (3) another person of interest, J.S., matched the description S.K. gave of the man she saw and J.S. had "at least as strong a connection to the deceased as Mr. LaPan" because he also had dated an ex-girlfriend of N.M.; and (4) LaPan told the detectives he had sustained the cut on his forearm not only from falling through the airplane hatch on the Saturday before the murder, but also ripping it open later that evening when playing with his children. LaPan also asserted the affidavit included a "full-on exaggeration of the cut on his arm" by improperly characterizing the fall as "alleged" when two coworkers confirmed they had seen LaPan fall, and including the detective's opinion that the cut was not consistent with the fall. LaPan argued "the omissions [we]re essential to the finding of probable cause" and "when you adjust the ... [a]ffidavit ... to include them, what's left does not amount to probable cause."
¶14 The state argued that although LaPan's wife said that "[a]s far as [she] kn[e]w," LaPan was in bed all night and said she "d[id]n't think" LaPan could have gotten up without her hearing him, she did not provide "a stone-cold alibi" for him. The state further asserted that if the murder happened at approximately 4:00 a.m.—around the time S.K. heard a loud noise, LaPan may have been able to commit the murder and return home before his wife woke up at 5:00 a.m. As to S.K.’s description of the man she saw drive by N.M.’s house hours after the murder, the state contended that by S.K.’s own admission, she "wasn't paying attention," which "undercuts the precision of her own observations," and she was unable to identify the man in the lineups that included J.S. and LaPan. The state also noted that S.K. said the man was driving an SUV, and J.S. did not own an SUV, but LaPan did. As to the cut on LaPan's forearm, the state argued the affidavit included that LaPan did indeed fall through the airplane hatch, that two coworkers corroborated the fall, and that "there's just no evidence" that the detective omitted material information in violation of Frimmel v. Sanders , 236 Ariz. 232, 338 P.3d 972 (App. 2014).
¶15 The trial court denied LaPan's motion, finding: "there has not been proof by a preponderance of the evidence that [the detective] either intentionally, knowingly, or with a reckless disregard to the truth, omitted information from the Affidavit." The court further noted that "some negligent omissions may have occurred" where the information in the affidavit was not described with "the exact words that [LaPan] would like" or where "certain pieces of information that [LaPan] think[s] are also helpful" were omitted, but ultimately found there was "no substantial preliminary showing that a Franks violation ha[d] occurred."
¶16 "[A] defendant is entitled to a hearing to challenge a search warrant affidavit when he makes a substantial preliminary showing (1) that the affiant knowingly, intentionally, or with reckless disregard for the truth included a false statement in the supporting affidavit, and (2) the false statement was necessary to the finding of probable cause." Frimmel , 236 Ariz. 232, ¶ 27, 338 P.3d 972 ; see also Buccini , 167 Ariz. at 554, 810 P.2d at 182 (citing Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ); State v. Carter , 145 Ariz. 101, 109, 700 P.2d 488, 496 (1985) (where affidavit contains falsehoods or omission of material facts, trial court must redraft affidavit, deleting falsehoods and adding material omitted facts, then determine if remaining affidavit supports probable cause). "The defendant must establish the first prong of the test by a preponderance of the evidence before the court may set the false material aside and view the affidavit's remaining content to see whether it is sufficient to establish probable cause." Buccini , 167 Ariz. at 554, 810 P.2d at 182. "[A] defendant must make specific allegations of deliberate falsehoods or reckless disregard for the truth, with reference to the relevant portion of the warrant, and support the allegations with a detailed offer of proof and statement of supporting reasons." Frimmel , 236 Ariz. 232, ¶ 30, 338 P.3d 972. "We review the denial of a request for a Franks hearing de novo ," id. ¶ 25, and consider whether LaPan made the requisite "substantial preliminary showing" prescribed by Franks , 438 U.S. at 155, 98 S.Ct. 2674.
LaPan's Alibi
¶17 On appeal, LaPan argues that the "inaccurate and omitted information" about the murder timeline and LaPan's alibi "w[ere] material and essential to the trial court's finding of probable cause." He argues the detective "downplayed the strength of" and "skewed" LaPan's alibi, by failing to state that LaPan's wife "strongly corroborated his affidavit," thereby making it appear as though no one could corroborate his whereabouts at the time of the murder and leaving open "the entire eight-hour period in the night when LaPan could have left the house and come back."
He also suggests the detective "easily could have told the judge that Mrs. LaPan told her unequivocally, ‘He didn't leave the house.’ " The record, however, does not support this, as LaPan's wife told detectives he was home all night "[a]s far as I know" and, when asked if he could have gotten up without her hearing him, she did not unequivocally say "no," but rather answered, "I don't think so."
¶18 But, as the state first points out, the affidavit did not omit any material information regarding the timeline of the murder and LaPan's alibi, as the affiant stated:
Mr. LaPan advised me that on Sunday, July 17, 2016, he was at home with his wife and family. They went to bed around 8:30 to 9:00 p.m. On Monday the 18th, he woke up with his wife at 5:00 a.m. They exercised together. She then went to work around 6:30 to 6:45 a.m.
Mr. LaPan was called into work that day around 1:30 p.m. Mr. LaPan's wife corroborated ... the statements that [LaPan] made referenc[ing] where he was at from Sunday to Monday.
As the state notes, this is not only "alibi evidence on its face," but the issuing judge had been informed in a previous affidavit from Monday, July 18 that N.M.’s body was found around 9:00 a.m. by his fiancé, who found him naked in his bedroom with a gunshot wound to his head, after he did not respond to text messages earlier that morning. Accordingly, the judge would have been aware that the detectives believed N.M. was shot sometime that night or early morning, when LaPan claimed to have been at home. Because the affidavit stated that LaPan's wife corroborated his whereabouts, there was no material omission.
Another Possible Suspect
¶19 Next, LaPan contends the detective omitted "crucial information" about S.K. having described a man with blonde hair and a red face. LaPan asserts J.S.—an ex-boyfriend of one of N.M.’s ex-girlfriends—matched that description. According to LaPan, S.K.’s description of the man she saw "undermines the identification of LaPan as the prime person of interest" and he argues this information would have shown the detective "had serious doubts about whether LaPan" was the perpetrator. We disagree.
LaPan also asserts "[t]he context surrounding the investigation of [him]" shows the detective did not strongly believe the statements in the affidavit were true and accurate, as required by State v. Claxton , 122 Ariz. 246, 594 P.2d 112 (App. 1979), and State v. Poland , 132 Ariz. 269, 645 P.2d 784 (1982). LaPan, however, offered no proof demonstrating the detective did not believe her statements were true and accurate. See Franks , 438 U.S. at 170-71, 98 S.Ct. 2674 (allegations of deliberate falsehoods or of reckless disregard must be accompanied by an offer of proof); see also Frimmel , 236 Ariz. 232, ¶ 30, 338 P.3d 972.
¶20 In this instance, the existence of another possible unidentified suspect is immaterial to whether police had probable cause to believe LaPan was involved in N.M.’s murder. S.K. saw the other man more than three hours after police believed the murder had occurred, and she was unable to identify the individual after two lineups, which included J.S. and LaPan. Moreover, the detective had interviewed J.S. before applying for the search warrant and, during that interview, she observed scratches on his arm, which he explained were from landscaping; but, unlike the cut on LaPan's arm, the detective did not note any of the scratches were deep. J.S. also did not own an SUV or a .45 caliber weapon. In light of all of the information detectives had about LaPan, as discussed above, the omitted information about another possible suspect was not material, nor did it exaggerate the strength of the evidence against LaPan.
LaPan's Work Injury
¶21 LaPan appears to argue the detective also omitted that LaPan's coworkers corroborated his fall and that the detective's description of the airplane hatch as where LaPan "allegedly fell" implied the fall did not occur. However, the detective's affidavit specifically stated that two coworkers said they saw LaPan fall into the hatch. LaPan also asserts that by withholding that he had told the detective he first sustained the wound from the fall but later "ripped it open" while playing with his children that same evening, "she implied that LaPan attributed his arm injury solely to the fall." LaPan is correct that the affidavit did not include his statement that he ripped open the wound again later that evening. But, on the strength of the record before us, we are unpersuaded that this omission was material to the determination of probable cause.
Affiant's Mental State
¶22 LaPan asserts "the high number of misstatements that all made [him] look more responsible than the available information suggested" shows the detective's mental state while omitting information in the affidavit "was so less than reckless, and more likely intentional." As noted above, however, some of these alleged omissions and misstatements are simply not supported by the record. And, the omissions that are supported by the record were not material given the strength of the evidence supporting a finding of probable cause. Further, LaPan made no offer of proof to support his allegations that omissions and misstatements were made knowingly, intelligently, or with reckless disregard for the truth. Notably, the affiant detective was present at the hearing on LaPan's motion to suppress, but LaPan did not call her to testify or otherwise submit "a detailed offer of proof and statement of supporting reasons." See Frimmel , 236 Ariz. 232, ¶ 30, 338 P.3d 972 (search warrant affidavit presumed valid and challenge to sufficiency "must be more than conclusory or speculative"). Because LaPan did not make "a substantial preliminary showing that false statements and material omissions were made with, at a minimum, reckless disregard for the truth" as required by Franks , he did not establish the first prong and, therefore, was not entitled to an evidentiary hearing. See Frimmel , 236 Ariz. 232, ¶¶ 29, 37, 338 P.3d 972.
¶23 Moreover, even were we to conclude LaPan established the first prong of Franks and Frimmel , and had the alleged misstatements been deleted and omissions added, the redrafted affidavit still would have supported a finding of probable cause. "[U]nder the totality-of-the-circumstances test, probable cause exists if, ‘given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ " State v. Crowley , 202 Ariz. 80, ¶ 12, 41 P.3d 618 (App. 2002) (alteration in Crowley ) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). "An officer has probable cause to conduct a search if a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with the criminal activity and that they would be found at the place to be searched." Frimmel , 236 Ariz. 232, ¶ 38, 338 P.3d 972 (quoting Buccini , 167 Ariz. at 556, 810 P.2d at 184 ).
¶24 Under the totality of the circumstances, a reasonably prudent person evaluating probable cause would be able to conclude that LaPan was involved in N.M.’s murder and that his house and vehicles contained evidence of the crime. See Crowley , 202 Ariz. 80, ¶ 12, 41 P.3d 618 ; see also Buccini , 167 Ariz. at 556, 810 P.2d at 184. For example, LaPan told detectives he filed a grievance against N.M. three days before the murder, he was a "precision marksman" with weapons training, and he owned a .45 handgun. Further, LaPan had been having an affair with one of N.M.’s ex-girlfriends, had a deep cut on his forearm, and detectives were aware LaPan had previously sought help repairing a suppressor. Thus, even with the alibi and timeline details, information about the man with blonde hair and a red face, LaPan's explanation that he ripped open the cut on his arm while playing with his children, and the deletion of "allegedly" from the affidavit, probable cause would have existed for the issuance of the warrant.
Jury Selection Question
¶25 LaPan argues the trial court abused its discretion by refusing to admonish the prosecutor for his "improper question that suggested to the jury that only a gullible person or ‘sucker’ would believe [LaPan's] case." Prosecutorial misconduct is "intentional conduct which the prosecutor knows to be improper and prejudicial" and that "is not merely the result of legal error, negligence, mistake, or insignificant impropriety." State v. Martinez , 221 Ariz. 383, ¶ 36, 212 P.3d 75 (App. 2009) (quoting Pool v. Superior Court , 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984) ). Generally, "[i]n determining whether an argument is misconduct, we consider two factors: (1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks." State v. Riley , 248 Ariz. 154, ¶ 125, 459 P.3d 66 (2020) (quoting Goudeau , 239 Ariz. 421, ¶ 196, 372 P.3d 945 ).
¶26 During jury selection, the prosecutor asked:
So for this next question, it can be embarrassing to answer it if you are—about yourself, so will you pretend, please, just engage with me for a moment. Just pretend I had the person who knows you best, the very closest person to you in the world here, whether it is your spouse, parent, child, whoever knows you the very best and I could ask them this question about you, are you gullible or naive or easily fooled? Is there sometimes people say, yeah, you know, I can be a sucker. My wife or husband says I'm always getting suckered into—is there anybody who that kind of rings a bell or anything related to that?
LaPan objected "because of the implication that anybody is going to be trying to sucker or play a trick on somebody who is gullible" at trial. The trial court overruled LaPan's objection, explaining: "And I didn't take it as that. I took it that [the prosecutor] was trying to pick up a personality by what the person was saying."
¶27 On appeal, LaPan argues "there is simply no proper purpose for such a question except to imply to jurors that only a sucker would believe [his] case" and contends the trial court's interpretation of the question "is not supported by the record." The state counters that LaPan "misconstrues the prosecutor's question" because, in context, the question was asked "amidst other questions regarding the venire members’ personality traits." The state further argues the question had a proper purpose: to determine whether the venire members "could exercise independent judgment."
¶28 When determining whether a comment constitutes misconduct, "[w]e must look to the entire record and to the totality of the circumstances." State v. Rutledge, 205 Ariz. 7, ¶ 33, 66 P.3d 50 (2003) ; see also State v. Ramos , 235 Ariz. 230, ¶ 13, 330 P.3d 987 (App. 2014) (whether prosecutor's comment is improper depends upon context in which it was made). For example, our supreme court concluded that a prosecutor's question to a potential juror during jury selection about whether he would "be able to sift through all the baloney and make [his] decision" was "perhaps inartful," but did not constitute misconduct. State v. Velazquez , 216 Ariz. 300, n.3, 166 P.3d 91, n.3 (2007). In context, that comment did not describe mitigation evidence as the defendant argued, but rather "addresse[d] the need for jurors to sort through all of the evidence presented to determine the factors that the juror finds mitigating." Id.
¶29 Similarly, we find no misconduct arising from the prosecutor asking the venire members if they were gullible or if someone close to them would describe them as a "sucker." While "perhaps inartful," or even gratuitously coarse, the question addressed the need for jurors to consider the credibility of all of the evidence presented, which is a proper purpose. See id. Thus, we find no error.
Restitution to N.M.’s Brother
¶30 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the trial court's restitution order." State v. Lewis , 222 Ariz. 321, ¶ 2, 214 P.3d 409 (App. 2009). Generally, we review a restitution order for an abuse of discretion, State v. Stutler , 243 Ariz. 128, ¶ 4, 402 P.3d 1013 (App. 2017), but we review the interpretation of statutes de novo, State v. Godoy , 244 Ariz. 327, ¶ 7, 418 P.3d 1100 (App. 2017). N.M.’s brother was required to use annual leave for the twenty-two days of work he missed as a result of N.M.’s death, the investigation, and LaPan's trial and sentencing. LaPan objected to the restitution award for the brother's use of annual leave because "he suffered no economic loss," but stipulated to the amount calculated for the twenty-two days of missed work.
LaPan sought disclosure of over two years’ worth of the brother's pay stubs, work assignments, and locations for all dates listed in the restitution worksheet, as well as his employment contract. After a hearing, the court denied the motion.
¶31 When a person is convicted of an offense, "the court shall require the convicted person to make restitution to the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court ...." A.R.S. § 13-603(C) ; see also Ariz. Const. art. II, § 2.1 (8) (victims have right "[t]o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury"). Section 13-105(16), A.R.S., provides:
"Economic loss" means any 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.
¶32 There is no dispute that N.M.’s brother is a victim under A.R.S. § 13-4401(19) because he is the brother of a homicide victim. Similarly, there is no dispute as to how the restitution award was calculated. The sole issue on appeal is whether restitution may be awarded for a victim's use of annual leave offered by their employer.
¶33 To be recoverable under our restitution statutes, a loss must be economic and must "flow directly from the defendant's criminal conduct, without the intervention of additional causative factors." State v. Wilkinson , 202 Ariz. 27, ¶ 7, 39 P.3d 1131 (2002). That is, "[i]f the loss results from the concurrence of some causal event other than the defendant's criminal conduct, the loss is indirect and consequential and cannot qualify for restitution under Arizona's statutes." Id. For example, wages lost due to voluntary attendance at trial are direct losses and therefore are recoverable, as are a victim's travel expenses. State v. Guadagni , 218 Ariz. 1, ¶¶ 18-19, 178 P.3d 473 (App. 2008) (citations omitted).
¶34 Although our legislature enumerated lost interest and lost earnings as specific examples of "economic loss," it also defined "economic loss" to include "other losses that would not have been incurred but for the offense." § 13-105(16). This court has previously explained "the phrase ‘any loss’ means ‘any loss that is economic ’ and that the reference to ‘any loss’ means that the legislature intends the term ‘economic’ to be construed as broadly as that term permits." In re Andrew C. , 215 Ariz. 366, ¶ 15, 160 P.3d 687 (App. 2007). The Andrew C. court understood "economic" to mean "[o]f, relating to, or based on the production, distribution, and consumption of goods and services." Id. ¶ 17 (quoting Economic , Merriam Webster Collegiate Dictionary (10th ed. 2005)).
¶35 This court has previously concluded the loss of vacation time or annual leave earned through employment is recoverable under the juvenile restitution statute, A.R.S. § 8-344(B). In re Ryan A. , 202 Ariz. 19, ¶¶ 30-31, 39 P.3d 543 (App. 2002). Section 8-344(B) allows a juvenile court to award restitution for "lost wages, reasonable damages for injury to or loss of property and actual expenses of medical treatment for personal injury, excluding pain and suffering." In Ryan A. , the juvenile court awarded restitution for a victim's use of annual paid leave to attend court hearings. 202 Ariz. 19, ¶¶ 5, 31, 39 P.3d 543. This court affirmed, explaining, "[w]e decline to construe the term ‘lost wages’ so narrowly as to preclude restitution for the loss of indirect employment benefits, such as annual leave or vacation time as was the case here. The loss of such benefits is a real economic loss tied to wages earned." Id. ¶ 31. That is, "[a]lthough the loss was ‘time’ and not money, it was nonetheless real and a direct result of court proceedings caused by the juvenile" and therefore "falls within the scope of ‘lost wages.’ " Id. ¶¶ 29-31.
¶36 LaPan argues the use of annual leave provided by an employer does not constitute an "economic loss." He asserts that "nowhere in [ § 13-105(16) ] is there anything suggesting that a victim who does not actually lose wages may receive restitution, in monetary form, for use of annual leave." LaPan also asserts that "[b]y using annual leave to attend court, the opportunity cost is a vacation or some other preferable use of the time off from work" and that an "opportunity cost" "does not fit within the statutory definition of ‘economic loss,’ which requires that the loss be monetary." Lastly, he urges this court to overturn Ryan A. , arguing it was "wrongly decided because it ignored the plain language of A.R.S. § 13-105(16)." We disagree.
LaPan also appears to suggest the brother's use of annual leave was consequential and therefore not recoverable as criminal restitution. This argument is unavailing, as the brother's loss of annual leave to attend to his brother's death, and the subsequent investigation, trial, and sentencing was a direct loss—it was not the result of a causal event other than LaPan's criminal conduct. See Wilkinson , 202 Ariz. 27, ¶ 7, 39 P.3d 1131.
¶37 First, LaPan does not argue nor does he cite any authority supporting the notion that annual leave earned through employment does not fall within the scope of lost earnings under § 13-105(16). Second, contrary to LaPan's argument, nothing in § 13-105(16) requires the loss to be monetary—the statute specifically employs the word "economic"—not "monetary." Third, the plain language of § 13-105(16) expressly provides for "lost earnings"—not merely lost wages. Because "earnings" is not defined, we give this term its ordinary meaning, which means: "something (such as wages) earned." Earnings , MERRIAM-WEBSTER , https://www.merriamwebster.com/dictionary/earnings (last visited: July 2, 2020). Employer-provided annual leave, like wages, is earned through employment. Therefore, we conclude that "lost earnings" includes the loss of annual leave under § 13-105(16), and restitution was properly awarded here.
We also note that "economic loss" has been interpreted to include a variety of losses beyond lost wages. See, e.g. , Andrew C. , 215 Ariz. 366, ¶ 18, 160 P.3d 687 (pre-paid educational fees for class assault victim was unable to attend as result of defendant's criminal conduct constituted economic loss); State v. Brady , 169 Ariz. 447, 448, 819 P.2d 1033, 1034 (App. 1991) (sexual assault victim's moving costs are economic loss); State v. Wideman , 165 Ariz. 364, 369, 798 P.2d 1373, 1378 (App. 1990) (mental health counseling costs for murder victim's family constitute economic loss recoverable through restitution).
--------
Disposition
¶38 For the foregoing reasons, we affirm LaPan's convictions and sentences, as well as the trial court's restitution order.