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March 5, 2026 Get Citation Alerts Download PDF Add Note

State v. Devore

Court of Appeals of Utah

• Citations: 2026 UT App 33

• Docket Number: Case No. 20240393-CA

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.7K)

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Combined Opinion

2026 UT App 33

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHRISTOPHER EARL DEVORE,
Appellant.

Opinion
No. 20240393-CA
Filed March 5, 2026

Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 191900909

Emily Adams and Jessica Hyde Holzer,
Attorneys for Appellant
Derek E. Brown and Michael Palumbo,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1 Christopher Earl Devore unlawfully entered a home and
punched a man he found inside engaging in sexual intercourse
with Devore’s on-again, off-again girlfriend. Devore pled guilty
to burglary and was ordered to pay $360.60 in restitution for the
cost of a medical consultation and exam the victim received
shortly after the incident. More than three years after Devore’s
sentencing but while Devore was still on probation, the Utah
Office of Victims of Crime (UOVC) asked the district court to
order Devore to pay nearly $30,000 in additional restitution for
the cost of a nasal reconstruction surgery that the victim
eventually underwent, which the court did.
State v. Devore

¶2 Devore appeals the order of additional restitution,
asserting that the district court plainly erred by applying the
wrong version of the Crime Victims Restitution Act (the
Restitution Act). He contends that if the court had applied the
correct version, it would have found that UOVC’s request for
additional restitution was untimely. Devore also asserts that his
defense counsel (Counsel) rendered ineffective assistance by not
bringing this issue to the court’s attention. Finally, Devore asserts
that UOVC presented insufficient evidence to establish that his
criminal conduct was the proximate cause of the victim’s injuries
that formed the basis of the additional restitution order. We are
not persuaded by Devore’s arguments, and we therefore affirm
the order of additional restitution.

BACKGROUND

The Burglary, Charges, Guilty Plea, and Initial Restitution

¶3 During the early morning hours of August 31, 2018, Devore
entered a home belonging to Roger 1 and found Roger engaging in
sexual intercourse with Devore’s “paramour.” Devore punched
Roger in the face.

¶4 Devore was charged in April 2019 with burglary and
assault. In January 2020, the burglary count was amended to first-
degree-felony aggravated burglary. In February 2020, Devore
pled guilty to second-degree-felony burglary of a dwelling, and
the assault charge was dismissed. As part of his plea, Devore
acknowledged that he could be required to pay restitution. In July
2020, Devore was sentenced to sixty days in jail and forty-eight
months of probation.

¶5 In September 2021, UOVC requested restitution of $360.60
for a medical consultation and nasal endoscopy that Roger

1. A pseudonym.

20240393-CA 2 2026 UT App 33
State v. Devore

received in February 2020 to address injuries to his nose and for
which UOVC had paid. The court granted this request, and
Devore paid that restitution.

The Request for Additional Restitution

¶6 In November 2023—more than three years after Devore
was sentenced but while he was still on probation—UOVC made
a request for additional restitution, this time for $29,976.93 “in
medical bills on behalf of [Roger], which resulted from the assault
in this case.” UOVC explained that Roger had undergone nasal
surgery in October 2022 and that UOVC had covered the cost of
that surgery.

¶7 Devore opposed UOVC’s motion for additional restitution,
arguing that the State had provided insufficient evidence to
establish that his punch was the proximate cause of the injuries
addressed by the surgery. In March 2024, the court held an
evidentiary hearing on UOVC’s request for additional restitution.
The parties agreed to proffer evidence at the hearing instead of
offering live testimony.

¶8 UOVC made its proffer first. After summarizing the
invoices for the medical services for which UOVC had paid,
UOVC presented a declaration from its restitution specialist
(Specialist). Specialist declared that when UOVC received Roger’s
first application for UOVC funds, she reviewed the police report
of Devore’s burglary and noted that officers at the scene had
observed that Roger had “noticeable swelling around his mouth
. . . [and] nose, and below his eyes.” Specialist stated that UOVC
verified Roger did not have insurance, that UOVC reviewed the
billing codes “to ensure that all of the expenses billed by the
medical providers were related to [Devore’s] criminal conduct in
this case,” and that UOVC then approved Roger’s first application
for assistance. Specialist explained that this first approval was for
$360.60 to cover Roger’s initial medical consultation and nasal
endoscopy.

20240393-CA 3 2026 UT App 33
State v. Devore

¶9 Specialist’s declaration continued, stating that in August
2021, Roger requested “approval for a reconstructive surgery that
was scheduled for September 14, 2021.” Specialist explained that
“UOVC generally requires a preauthorization” from a medical
provider before it pays for surgery. Thus, Specialist said, upon
receiving Roger’s request for assistance with surgery, UOVC
spoke with Roger’s medical provider. According to Specialist, the
provider stated that Roger “was seen for an evaluation of
previous nasal trauma and ongoing internal and external
obstruction” and, “based on photographs and information
provided by [Roger], the nasal obstruction and deformity
appeared to be a result of the facial trauma he experienced several
years prior to his visit.”

¶10 Specialist’s declaration further explained that UOVC spoke
with Roger about his delay in requesting assistance for surgery.
According to Specialist, Roger said “that due to the COVID-19
pandemic,” the provider had “not previously [been] prioritizing
non-emergent surgeries.” Specialist also said that Roger indicated
that “he had no medical insurance” at the time of the assault,
could not “afford the cost of the surgery,” and, thus, “expected to
never get his nose fixed,” but that “when he discovered [UOVC]
could help, he sought medical attention.”

¶11 Specialist noted that UOVC “received the final
preauthorization” for Roger’s surgery in September 2022 and that
Roger “was able to get the surgery he needed in October of 2022.”
Specialist stated that she reviewed the coded medical procedures
outlined in the invoices related to the surgery, including “an
excision of a ‘tumor’ greater than 2 cm or more” from Roger’s
nose. UOVC indicated that Specialist then “reached out to the
provider” to ask about the charge for the excision of a tumor and
learned “that this was for a cartilage graft that was part of the
nasal repair.” Finally, Specialist declared that—based on the
portions of the invoiced charges that the medical providers were

20240393-CA 4 2026 UT App 33
State v. Devore

not willing to write off, for which UOVC had paid—UOVC was
“seeking $29,976.93 in additional restitution.”

¶12 UOVC also proffered two declarations from Roger. In the
first, Roger declared that during “the early morning hours of
August 31, 2018, [he] was assaulted in [his] home by [Devore],”
who “entered . . . without permission and hit [him] in the face,
breaking [his] nose.” Roger said that following this assault, his
“right nasal passage was visibly collapsed” such that he “could
no longer breath[e] out of [his] right nostril” and that “[t]his injury
did not heal on its own.” Roger’s first declaration further
explained that Roger had been “attacked in 2017 by a group of
people in Salt Lake City” who had “punched [him] in the face”
but that he “did not have any lasting damage to [his] face or nose
and did not experience any breathing problems” after that
incident.

¶13 In his second declaration, Roger addressed Devore’s
allegation (which was based on the foregoing representations in
Roger’s first declaration, which Devore had apparently received
previously) that Roger’s ailments were “due to a pre-existing
injury that was inflicted by parties other than” Devore. In
addressing that allegation, Roger again acknowledged that he had
suffered facial injuries “when [he] was attacked by a group of
people in Salt Lake City” in 2017, but he again maintained that his
“nose was not broken during this attack” and that he “had no
lasting injuries” from this attack. Roger further acknowledged,
“My brother did once find me bleeding on the floor of my
bathroom after I fell and cut my face open. This also happened in
2017, but it was not related to the attack in Salt Lake City.” Roger
then declared as to his bathroom fall, “The cut on my face was
bleeding, not my nose. I received stitches for that injury the next
day . . . . My nose was not broken as a result of the fall, and I had
no lasting injuries then either.”

20240393-CA 5 2026 UT App 33
State v. Devore

¶14 Following UOVC’s proffer, Counsel made a proffer in
opposition to the request for additional restitution. He stated that
Devore hit Roger on the left side of the face, and he asserted that
“there’s no connection” “between the attack to the left side of the
face and the collapse of the right nasal passage.” Counsel
represented that Devore would testify that when “he confronted
[Roger] immediately prior to the assault, he heard [Roger]
wheezing when he breathed through his nose,” an indication,
Counsel argued, that Roger’s nose had been “harm[ed]” “before
[Devore] showed up.” Counsel then contended that the attack in
Salt Lake City and the bathroom fall were the “more likely” causes
of Roger’s nasal injuries.

¶15 Ultimately, the court found that UOVC’s claim for
additional restitution had been “properly documented and
supported by a preponderance of the evidence.” The court noted
that UOVC had not merely accepted the invoices from the medical
providers at face value but, instead, had checked the coding on
the invoices and spoken with the providers. The court also
highlighted that UOVC’s proffer of the providers’ observations
supported the assertion that “the injuries appear[ed] to be
consistent with the nature of the assault [that] was the subject of
the underlying offense.” Based on the foregoing, the court entered
an order requiring Devore to pay the requested additional
restitution of $29,976.93. Devore now appeals that order.

ISSUES AND STANDARDS OF REVIEW

¶16 Devore asserts for the first time on appeal that UOVC’s
request for additional restitution was governed by the 2023
version of the Restitution Act (the 2023 Act) and that under the
2023 Act, “the district court did not have jurisdiction to enter” the
additional restitution order because the request for additional
restitution was untimely. Because Devore did not preserve this
issue by raising it below, he asserts that (1) the district court
plainly erred by not recognizing that the 2023 Act applied and

20240393-CA 6 2026 UT App 33
State v. Devore

(2) Counsel rendered ineffective assistance for not bringing this
issue to the court’s attention. See generally State v. Flora, 2020 UT 2,
¶ 9, 459 P.3d 975 (“This court has recognized three distinct
exceptions to preservation: plain error, ineffective assistance of
counsel, and exceptional circumstances. A party seeking review
of an unpreserved issue must establish the applicability of one of
these exceptions . . . .” (cleaned up)). Because Devore’s plain error
claim involves no lower court ruling, we decide it in the first
instance as a matter of law. See State v. Dew, 2025 UT App 22, ¶ 28,
566 P.3d 53, cert. denied, 568 P.3d 264 (Utah 2025). Likewise,
because an ineffective assistance of counsel claim raised for the
first time on appeal involves no lower court ruling, we decide in
the first instance as a matter of law whether Devore was deprived
of the effective assistance of counsel. See id.

¶17 Devore also asserts that there was insufficient evidence to
support the district court’s finding that his punch was the
proximate cause of Roger’s nasal injuries. “When a defendant
argues that the evidence was insufficient to support a restitution
order, the defendant must demonstrate that the clear weight of
the evidence contradicts the court’s ruling.” State v. Murray, 2023
UT App 52, ¶ 21, 530 P.3d 982 (cleaned up).

ANALYSIS

I. The Restitution Act

¶18 From May 9, 2017, through May 30, 2021—a period
encompassing the dates on which Devore’s criminal act was
committed, the charges against Devore were filed and amended,
his guilty plea was entered, and his sentence was imposed—the
Restitution Act stated that all restitution requests were to be
submitted “at the time of sentencing if feasible, otherwise within
one year after sentencing.” Utah Code § 77-38a-302(5)(d)(i) (2017);
accord id. § 77-38a-302(5)(d)(i) (2020). However, this version of the
Restitution Act (the 2017 Act) also provided that “[i]f a defendant

20240393-CA 7 2026 UT App 33
State v. Devore

[was] placed on probation,” then “the time period for
determination of [restitution could] be extended by the court
upon a finding of good cause” as long as the extension did “not
exceed the period of the probation term served by the defendant.”
Id. § 77-38a-302(5)(d)(ii) (2017); accord id. § 77-38a-302(5)(d)(ii)
(2020). Here, both the request for additional restitution and the
court’s decision to grant that request were made while Devore
was on probation.

¶19 In contrast, from May 3, 2023, through April 30, 2024—a
period encompassing the date on which UOVC requested
additional restitution and the date on which the court entered its
order of additional restitution—the 2023 Act required the district
court to “enter an order for restitution in a defendant’s case no
later than the earlier of . . . the termination of the defendant’s
sentence . . . or . . . [,] if the defendant [was] convicted of a felony
[but not imprisoned for a first degree felony], within three years
after the day on which the court sentence[d] the defendant for the
felony conviction.” Id. § 77-38b-205(5)(a) (2023). Under the 2023
Act, a request for restitution “made within the time period
described in Subsection (5)(a)” tolled the time within which the
court was required to enter the restitution order. Id. § 77-38b-
205(5)(b) (2023). Here, UOVC’s request for additional restitution
was submitted more than three years after the day on which
Devore was sentenced.

¶20 Based on the foregoing, if the 2017 Act properly applied to
UOVC’s request for additional restitution, UOVC’s request was
timely and the court had authority to issue its additional
restitution order if the court found good cause for extending the
default one-year deadline for submitting restitution requests. On
the other hand, if the 2023 Act properly applied, UOVC’s request
for additional restitution was untimely and the court lacked
authority to issue an additional restitution order.

20240393-CA 8 2026 UT App 33
State v. Devore

¶21 Devore contends that the 2023 Act properly applied. And
because he failed to preserve this argument below, he claims that
the district court plainly erred by not applying the 2023 Act and
that Counsel rendered ineffective assistance by not arguing for
application of the 2023 Act. As explained more fully below, we
conclude that Devore has demonstrated neither plain error nor
ineffective assistance.

A. Plain Error

¶22 Devore claims that the district court plainly erred by not
applying the 2023 Act in this case. “To prevail on plain error
review, a defendant must establish that (i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the error
is harmful, i.e., absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant.” State v. Cesspooch,
2024 UT App 15, ¶ 7, 544 P.3d 1046 (cleaned up), cert. denied, 550
P.3d 994 (Utah 2024). Devore’s plain error claim fails under at
least the second prong of the plain error test because it would not
have been obvious to the district court that the 2023 Act properly
applied to UOVC’s request for additional restitution.

¶23 “An error is obvious if the law on the area was sufficiently
clear or plainly settled.” Freight Tec Mgmt. Group Inc. v. Chemex
Inc., 2021 UT App 92, ¶ 41, 499 P.3d 894 (cleaned up). Conversely,
“an error is not obvious if there is no settled appellate law to guide
the trial court.” State v. Roman, 2015 UT App 183, ¶ 9, 356 P.3d 185
(cleaned up). Additionally, a court does not commit obvious error
if the court follows “on-point precedent.” See State v. Winter, 2024
UT App 98, ¶ 18, 554 P.3d 355 (“[I]f following [on-point]
precedent were indeed to be an error, as [the appellant claimed] it
is, that error—requiring the judge to disregard an opinion from
our supreme court directly discussing the issue—would be far
from obvious to the district court.”), cert. denied, 558 P.3d 88 (Utah
2024).

20240393-CA 9 2026 UT App 33
State v. Devore

¶24 As a general matter, it is well settled that “we apply the law
as it exists at the time of the event regulated by the law in
question.” State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. Thus, the
key question here is which event is regulated by the Restitution
Act. On this question, when the district court granted UOVC’s
request for additional restitution in March 2024, the following
appellate pronouncements were part of Utah caselaw:

• In State v. Sevastopoulos, 2021 UT 70, 502 P.3d 290, our
supreme court addressed whether “litigation expenses
incurred in collateral litigation are an appropriate element
of restitution under the [Restitution Act].” Id. ¶ 7. In
analyzing that question, the court stated that it was
applying “the version of the [Restitution Act] in effect at
the time of [the defendant’s] crimes.” Id. ¶ 8 n.2.

• In State v. Speed, 2017 UT App 76, 397 P.3d 824, where we
analyzed whether the restitution order at issue was
“entered within the jurisdictional time frame established
by the [Restitution Act],” id. ¶ 16, we “refer[red] to the
version of [the Restitution Act] that was in effect at the time
[the defendant] was charged,” id. ¶ 22 n.5.

• In State v. Jamieson, 2021 UT App 3, 480 P.3d 363, where a
company was the victim of the defendant’s “computer
crimes,” we addressed whether “at least some amount for
time spent by [the company’s] employees while
participating in the criminal case (e.g., attending hearings)”
could properly be “included in [the district court’s]
restitution figure” as “pecuniary damages.” Id. ¶¶ 1–2, 16.
There we stated that we were applying the version of the
Restitution Act in effect at the time the defendant pled
guilty. See id. ¶ 16 & n.6.

• In State v. Murray, 2023 UT App 52, 530 P.3d 982, we
addressed whether the lost wages that formed a basis of the
district court’s restitution order were proximately caused

20240393-CA 10 2026 UT App 33
State v. Devore

by the crime of which the defendant was convicted. See id.
¶ 25. We began our analysis by noting that “as a general
rule, we apply the law in effect at the time of the occurrence
regulated by that law.” Id. ¶ 26 (cleaned up). We then
applied “the version of the [Restitution Act] in effect at the
time of [the defendant’s] sentencing.” Id. (cleaned up).

• In State v. Garcia, 2023 UT App 143, 540 P.3d 1158, we again
analyzed whether the defendant’s criminal acts were the
proximate cause of the damages that formed the basis of
the district court’s restitution order. See id. ¶ 9. We
reiterated that we apply the law as it exists at the time of
the event regulated by the law in question, and we applied
the version of the Restitution Act “in effect at the time of
[the defendant’s] entry of plea and sentencing.” Id. ¶ 10 n.3.

¶25 In sum, when the district court issued its order of
additional restitution, the law was neither clear nor settled as to
which event—the defendant’s criminal act, the filing of charges,
the entry of the defendant’s guilty plea, or the defendant’s
sentencing—was regulated by the Restitution Act. What was
clear, however, was that the 2017 Act was in effect when Devore
committed the crime in this case, was charged, pled guilty, and
was sentenced. Moreover, no controlling law at the time identified
the submission or granting of a restitution request as the event
regulated by the Restitution Act. Given this state of the law, it
would not have been obvious to the district court that the 2023
Act—the version in effect when the request for additional
restitution was submitted and granted—applied. See Roman, 2015
UT App 183, ¶ 9 (“Without clear guidance in the law, any error
would not have been obvious to the district court.”). Thus, the
district court did not commit plain error by applying the 2017 Act.

¶26 Devore resists this conclusion by contending that while the
question of “whether the State may seek restitution” is a
substantive question that should be answered by applying the

20240393-CA 11 2026 UT App 33
State v. Devore

version of the Restitution Act in effect at the time of the
defendant’s crime, the question of “when a party may seek
restitution” is a procedural question that should be answered by
applying the version of the Restitution Act in effect when the
restitution order is signed. See generally Winter, 2024 UT App 98,
¶ 20 (“The law governing procedural occurrences is the law in
effect at the time of the procedural act, not the law in place at the
time of the occurrence giving rise to the parties’ substantive
claims.” (cleaned up)). In support of this argument, Devore points
to Simper v. Board of Pardons & Parole, 2024 UT App 122, 557 P.3d
240, where we addressed whether the restitution orders in that
case were signed “within the time period prescribed by statute.”
Id. ¶ 12. In so doing, we applied the version of the applicable
statute that was in effect when the restitution orders were signed.
See id. ¶ 9 n.1. Devore also points to Sevastopoulos, which he
characterizes as a case where our supreme court held that “the
version of the [Restitution Act] at the time of the offense” governs
only “substantive questions about whether restitution may be
awarded.”

¶27 Devore’s general argument—that the question of when a
party may seek restitution is a procedural question that should be
answered by applying the version of the Restitution Act in effect
when the restitution order is signed—has some force. Cf. State v.
Lusk, 2001 UT 102, ¶ 28, 37 P.3d 1103 (“Because statutes of
limitations are procedural in nature, a legislative amendment
enlarging a limitation period may be applied retroactively to
crimes committed before the amendment where the limitations
defense has not accrued to the defendant before the amendment
becomes effective.”). However, although Speed did not require us
to decide between competing versions of the Restitution Act,
Devore’s argument it is at least facially at odds with our statement
in Speed—a case dealing with when a restitution order must be
entered—that we would “refer to the version of [the Restitution
Act] that was in effect at the time [the defendant] was charged.”
2017 UT App 76, ¶ 22 n.5. Moreover, there is at least equal force

20240393-CA 12 2026 UT App 33
State v. Devore

in the State’s argument that Roger’s “right to receive restitution
under [the Restitution Act] vested—at the latest—when Devore
was sentenced” in July 2020, see Utah Code § 77-38a-302(1) (2020)
(“When a defendant enters into a plea disposition or is convicted
of criminal activity that has resulted in pecuniary damages, in
addition to any other sentence . . . it may impose, the court shall
order that the defendant make restitution . . . .”), and, thus, that
any post-sentencing amendment shortening the deadline for
requesting restitution should not be applied retroactively, cf. Lusk,
2001 UT 102, ¶ 30 (“[A]lthough statutes of limitation may be
procedural in nature, a statutory amendment extending a statute
of limitations will not be applied retroactively when it eliminates
a vested right.”). Because no Utah case has fully grappled with
this specific issue and determined which of these competing
positions controls, it would not have been obvious to the district
court that it was required to follow Devore’s preferred (but not
then articulated) position.

¶28 Devore’s reliance on Simper also does not help his plain
error claim because that opinion was issued on August 29, 2024—
several months after the district court issued its order of additional
restitution—and because it interpreted the Board of Pardons and
Parole’s governing statute (which, at the time, allowed the board
to issue an order for restitution, see Utah Code § 77-27-6 (2020)),
not the Restitution Act. See 2024 UT App 122, ¶ 13. Finally,
contrary to Devore’s characterization, our supreme court’s
opinion in Sevastopoulos did not hold that the version of the
Restitution Act at the time of the offense governs only substantive
questions about whether restitution may be awarded. See 2021 UT
70, ¶ 8 n.2. Rather, it merely stated that the supreme court was
applying the version of the Restitution Act “in effect at the time of
[the defendant’s] crimes.” Id.

¶29 For the foregoing reasons, Devore’s arguments against our
conclusion that the district court did not commit plain error are
unavailing, and his plain error claim therefore fails.

20240393-CA 13 2026 UT App 33
State v. Devore

B. Ineffective Assistance of Counsel

¶30 Devore also asserts that Counsel rendered ineffective
assistance by not arguing that the 2023 Act applied and precluded
the court from awarding additional restitution. We disagree.

¶31 “To prove ineffective assistance of counsel, a defendant
must show: (1) that counsel’s performance was objectively
deficient, and (2) that a reasonable probability exists that but for
the deficient conduct the defendant would have obtained a more
favorable outcome at trial.” State v. Ellis, 2014 UT App 185, ¶ 14,
336 P.3d 26 (cleaned up). A defendant claiming ineffective
assistance must prove both of these components to prevail. See id.
“As a result, it is not necessary for us to address both components
of the inquiry if we determine that a defendant has made an
insufficient showing on one.” Id. (cleaned up). Here, we address
the deficient performance component of Devore’s claim.

¶32 “To constitute deficient performance, counsel’s
representation must fall below an objective standard of
reasonableness.” State v. Baugh, 2024 UT 33, ¶ 19, 556 P.3d 35
(cleaned up). “We judge the reasonableness of counsel’s
challenged conduct, viewed as of the time of counsel’s conduct.”
State v. McDaniel, 2025 UT App 120, ¶ 72, 576 P.3d 1121 (cleaned
up), cert. denied, 581 P.3d 556 (Utah 2025).

¶33 As detailed above, when UOVC made its request for
additional restitution and the district court ruled on that request,
all of the decisions touching on the subject indicated that when
analyzing issues under the Restitution Act, Utah’s appellate
courts apply the version of the Restitution Act in effect at the time
of sentencing or before. See supra ¶¶ 24–25. For this reason,
Counsel could have reasonably concluded that it would have
been futile to ask the district court to apply the 2023 Act. Thus,
Counsel’s failure to make that request did not constitute deficient
performance. Cf. State v. Whytock, 2020 UT App 107, ¶ 40, 469 P.3d
1150 (“Because [the defendant’s] trial attorneys could have

20240393-CA 14 2026 UT App 33
State v. Devore

reasonably concluded that any efforts to exclude [a particular
witness’s] testimony . . . would have been futile, counsel did not
perform deficiently by failing to make such efforts.”).

¶34 In this vein, we further observe that in the context of
deciding whether a particular restitution request “was untimely,”
our supreme court recently noted, in State v. Blake, 2025 UT 21, 582
P.3d 705, that after the victim requested restitution, the legislature
amended the Restitution Act “to extend the time for seeking
restitution.” Id. ¶¶ 8 n.2, 38. The court then stated that “the statute
in effect at the time of sentencing governs.” Id. ¶ 8 n.2. A few
months later, in State v. Debrok, 2025 UT 40, 579 P.3d 296, the
supreme court elaborated on its holding in Blake, saying:

When it comes to criminal restitution, generally the
version of the Restitution Act in effect at the time of
sentencing applies. This is because the district court
orders restitution as part of the sentence imposed
even though, in some cases, the exact restitution
amount may be determined after sentencing.
However, we acknowledge that we said otherwise
in State v. Sevastopoulos, and we applied the
Restitution Act in effect at the time of the underlying
conduct. In light of this inconsistency, we clarify
that as a general matter, the Restitution Act in effect
at the time of sentencing controls. However, we do
not rule out the possibility that in a future case, a
party might argue that a particular provision of the
[Restitution Act] should be treated differently.

Id. ¶ 13 n.3 (cleaned up).

¶35 We do not view the supreme court’s foregoing clarification
in 2025 as requiring reasonable counsel in 2024 to have made the
argument that the particular deadline provision of the Restitution
Act that controls is the one in effect at the time a restitution order
is entered. Instead, we read the twin holdings of Blake and

20240393-CA 15 2026 UT App 33
State v. Devore

Debrok—namely, that when it comes to restitution, generally the
version of the Restitution Act in effect at the time of sentencing
controls—as bolstering our determination that Counsel did not
perform deficiently by not arguing for application of the 2023 Act.

¶36 Devore resists our determination regarding deficient
performance by asserting that because the district court made no
explicit finding of good cause for extending the default deadline
under the 2017 Act, UOVC’s request for additional restitution was
untimely even under the 2017 Act. See generally Utah Code § 77-
38a-302(5)(d)(i)–(ii) (2017) (allowing a court to extend the default
one-year restitution deadline through the end of the defendant’s
probation term upon a finding of good cause).

¶37 The first problem with Devore’s argument is that he raises
it for the first time in his reply brief. See Allen v. Friel, 2008 UT 56,
¶ 8, 194 P.3d 903 (“It is well settled that issues raised by an
appellant in the reply brief that were not presented in the opening
brief are considered waived . . . .” (cleaned up)). Moreover, an
appellate court may imply unstated findings “if it is reasonable to
assume that the trial court actually considered the controverted
evidence and necessarily made a finding to resolve the
controversy[] but simply failed to record the factual
determination made.” Rayner v. Rayner, 2013 UT App 269, ¶ 11,
316 P.3d 455 (cleaned up). In such an instance, we will “affirm the
[district court’s] decision if from the evidence it would be
reasonable to find facts to support it.” Dole v. Dole, 2018 UT App
195, ¶ 9, 437 P.3d 464 (cleaned up). Here, because the district court
ordered Devore to pay additional restitution despite the fact that
UOVC made its request more than three years after he was
sentenced, reasonable counsel could have assumed that the court
applied the 2017 Act and that it found good cause to extend the
default deadline under the 2017 Act through the end of Devore’s
probation term. Ample undisputed evidence supports such a
finding.

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State v. Devore

¶38 Specifically, according to UOVC’s proffer, Roger declared
that at the time of the burglary, he did not have insurance and did
not know about UOVC or its ability to help him. Roger further
declared that after he learned about UOVC and reached out for
help, his medical provider stopped prioritizing “non-emergent
surgeries” because of the COVID-19 pandemic. Only when that
situation changed, Roger averred, was he able to receive the
needed surgery. Because this evidence clearly supports the
district court’s implicit finding of good cause for extending the
deadline to submit a restitution request through the end of
Devore’s probation, Counsel could have reasonably determined
that good cause existed, that the court had made an implied
finding to that effect, and that raising the issue of good cause for
extending the deadline would have been futile.

¶39 Because Devore has not shown that Counsel performed
deficiently by not arguing for application of the 2023 Act (or by
not raising the issue of good cause for extending the deadline
under the 2017 Act), his ineffective assistance of counsel claim
fails.

II. Proximate Cause

¶40 Devore next asserts that even if the district court had
authority to order additional restitution, it erred “in concluding
that the State met its burden to show that [Devore’s] actions
proximately caused [Roger’s] injuries.” We disagree.

¶41 “In restitution cases, the burden is on the State to prove
proximate cause.” State v. Morrison, 2019 UT App 51, ¶ 13, 440
P.3d 942. Proximate cause “requires proof of two elements:
(1) but-for causation and (2) foreseeable harm.” State v. Watson,
2021 UT App 37, ¶ 15, 485 P.3d 946. The “fundamental test is
whether under the particular circumstances the defendant should
have foreseen that his [or her] conduct would have exposed others
to an unreasonable risk of harm.” State v. Becker, 2018 UT App 81,
¶ 13, 427 P.3d 306 (cleaned up). “Furthermore, a trial court’s

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State v. Devore

restitution award must rely on a sufficient evidentiary basis, and
it may award restitution only in cases where liability is clear as a
matter of law and where the commission of the crime clearly
establishes causality of the injury or damages.” Watson, 2021 UT
App 37, ¶ 15 (cleaned up). Applying the foregoing principles, we
conclude that Devore has not met his burden to “demonstrate that
the clear weight of the evidence contradicts the court’s ruling.”
State v. Murray, 2023 UT App 52, ¶ 21, 530 P.3d 982 (cleaned up).

¶42 First, UOVC proffered evidence from which the district
court could find that but-for causation was clearly established.
According to UOVC’s proffer, Roger declared that after Devore
punched him, his “right nasal passage was visibly collapsed and
[he] could no longer breath[e] out of his right nostril.” Roger also
declared that the “injury did not heal on its own” and he “was left
with a visibly damaged nose” and “obstructed breathing.”
UOVC’s proffer regarding Specialist’s review of the police report
from the incident indicated that officers reported that Roger “had
noticeable swelling around his mouth . . . [and] nose, and below
his eyes” following Devore’s punch. Specialist also described her
review of the invoices for Roger’s surgery, which stated that
Roger “was seen for nasal trauma that resulted in airway
obstruction” and that “the nasal obstruction and deformity
appeared to be a result of the facial trauma [Roger] experienced
several years prior to his visit.”

¶43 Roger acknowledged that his face was injured during a
2017 attack in Salt Lake City and during a bathroom fall in 2017.
But he stated that neither of those incidents left him with a broken
nose or other lasting nasal injuries. While Counsel argued that the
attack in Salt Lake City and the bathroom fall were the “more
likely” causes of Roger’s nasal injuries, the only evidence Devore
proffered in support of that argument was his declaration that he
heard Roger “wheezing when he breathed through his nose” on
the night Devore punched Roger. However, the court clearly
found Roger’s declarations regarding a lack of ongoing nasal

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State v. Devore

injury prior to Devore’s punch to be credible. And “on appeal, we
give deference to that credibility determination.” Id. ¶ 39.

¶44 In short, UOVC proffered ample evidence on which the
district court could base its finding that Devore’s punch was the
but-for cause of the nasal injuries Roger’s surgery was aimed at
addressing. Devore has not met his burden to demonstrate that
the clear weight of the evidence shows otherwise.

¶45 UOVC also proffered evidence from which the district
court could find that the foreseeability of Roger’s nasal injuries
was clearly established. We have said in the context of aggravated
assault that “not all punches are created equal . . . because the
force behind each blow differs” and that a factfinder “must infer
from something in addition to the fact that a punch was thrown
how much force a defendant actually used and whether that force
was likely to cause serious bodily injury under the particular facts
of the case.” State v. McDonald, 2025 UT App 172, ¶ 28, 581 P.3d
172 (cleaned up). We noted that “the extent and type of injuries
the victim suffered are among the types of evidence probative of
that question.” Id. (cleaned up). The same principle applies here:
the extent and long-term nature of Roger’s nasal injuries were
probative to show that Devore’s punch to Roger’s face was quite
forceful and its manner was otherwise such that Devore should
have foreseen that it posed an unreasonable risk of harm. Also
probative of the foreseeability of Roger’s injuries is the reasonable
inference—namely, that Devore delivered a violent punch, in
anger, and with disregard for its possible consequences—which
is suggested by the fact that he was in the midst of committing a
felony and had just discovered Roger engaging in sexual
intercourse with Devore’s “paramour” when he threw the punch.

¶46 Counsel proffered below that Devore hit Roger on the left
side of the face, and he asserted that “there’s no connection”
“between the attack to the left side of the face and the collapse of
the right nasal passage.” However, foreseeability generally

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State v. Devore

requires “a likelihood of an occurrence of the same general
nature,” not a likelihood “that the particular accident would
occur.” A.W. v. Marelli, 2024 UT App 8, ¶ 26, 543 P.3d 786 (cleaned
up). Thus, while Devore may not have anticipated that his punch
to Roger’s left cheek would cause Roger’s right nostril to collapse,
Devore needed to foresee only the likelihood of an injury of the
same general nature (i.e., facial damage) as a result of his punch.

¶47 Finally, citing the provision of the Restitution Act requiring
courts to examine “the cost of necessary medical and related
professional services,” Utah Code § 77-38a-302(5)(b)(ii) (2017)
(emphasis added), Devore argues that UOVC was also required
to prove that the expenses for which it sought restitution were
“medically necessary.” In his principal brief, he asserted that
UOVC could not prove medical necessity without a statement
from a medical provider about Roger’s need for surgery. In his
reply brief, however, Devore concedes that our supreme court’s
decision in Blake renders his argument regarding the need for a
statement from a medical provider to establish medical necessity
“no longer viable.” See State v. Blake, 2025 UT 21, ¶¶ 43–44, 582
P.3d 705 (holding that a UOVC representative’s testimony “about
the nature of care provided, the procedures, the amounts billed
for the victim’s medical care, discounts applied, and his work
confirming that the billing codes [in the applicable invoices]
aligned with treatment for” the victim’s injuries was sufficient to
support a finding that the expenses for the basis of the restitution
award were reasonable and necessary in the restitution context).
Yet Devore argues that the evidence UOVC put on was not
sufficient, even in light of Blake, to demonstrate medical necessity.
We are not persuaded. The parties here agreed to present
evidence at the restitution hearing by way of proffer. Part of
UOVC’s proffer included a summary of Roger’s declaration in
which he stated that Devore’s punch left him “with a visibly
damaged nose and an inability to breathe out of one of [his]
nostrils, which would require surgery to correct” and that a
doctor had “recommended that [he] receive reconstructive

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State v. Devore

surgery.” And Specialist’s declaration, the contents of which were
also proffered, stated that Specialist reviewed the invoices and
medical codes outlined therein. This was sufficient under Blake to
show that the medical expenses were necessary to treat Roger’s
injuries. See id.

¶48 For the foregoing reasons, we conclude that Devore has not
met his burden of demonstrating that the district court’s
proximate cause determination is contradicted by the clear weight
of the evidence.

CONCLUSION

¶49 Devore has not established that the district court
committed plain error or that Counsel rendered ineffective
assistance relative to the court’s application of the 2017 Act in this
case. Additionally, Devore has not met his burden of
demonstrating that the district court’s proximate cause
determination is contradicted by the clear weight of the evidence.
Accordingly, we affirm the court’s order of additional restitution.

20240393-CA 21 2026 UT App 33