Restitution in sex case disputed

MONTROSE — The court needs to "draw a line" between what Alan Files justifiably owes his victim and what costs could not be reasonably foreseen, his defense attorney said Friday.

Files, convicted by his Alford plea last year of unlawful sexual contact and attempted child abuse, disputes portions of the $33,372 in restitution the victim's mother is claiming on the child's behalf.

The former Nucla fire chief was arrested in 2006, after the girl disclosed the abuse. He was originally accused of several counts of sexual assault on a child.

The prosecution claimed he'd abused the girl, now in her teens, for years, propelling her into a serious illness that resulted in frequent hospitalization.

The mother testified Friday that all the expenses, including equine therapy, a new horse and a trip to Mexico, were justified and necessary for the girl's recovery.

"She was subjected to abuse as far back as she can remember. She had no way to get help," the woman testified, alleging Files threatened to kill the girl's pets and family members and additionally convinced her others would think something was wrong with her.

The abuse led to a severe psychosomatic illness that manifested in the form of starvation and dehydration.

"She finally decided she had to fight for her life," the mother said.

On the stand, the woman detailed medical and therapy expenses and Deputy District Attorney Sherry Price presented evidence showing the things and services purchased for the victim had been recommended by therapists.

Other expenses including medical bills not covered by insurance, food and lodging when the girl was hospitalized in Denver and more than $11,000 in mileage.

The victim will require continued monitoring and therapy for years to come, her mother said.

Defense attorney Dan Hotsenpiller objected to including certain letters as evidence in the restitution matter, because, he said, they were hearsay. He also asserted Files' Sixth Amendment rights of confrontation.

Hotsenpiller asked the victim's mother about a decree in an unrelated civil matter, in which she had released Files from all other claims.

"I'm not sure what this has to do with the restitution hearing," the woman shot back. "He was my daughter's assailant."

She said the claims for restitution were for her daughter, not herself, but was told to stick to the question at hand.

Hotsenpiller later told the court the issue was "proximate cause," not the ripple effect of Files' conduct. In Colorado, proximate cause includes the natural and probable consequences.

"It requires more than (just) the 'but for' test. The court has to consider this in awarding restitution," he said.

However, because his client disputes only some of the claims and not all, it gets tricky for the court, Hotsenpiller acknowledged.

Technically, every future expense incurred by and for the victim could be seen as necessary due to Files' conduct, he said.

"But the court has to draw some line. The evidence has not been sufficient in this case."

Price disagreed. She said plenty of evidence was submitted and the claims were based on expenses incurred as the result of what Files had done.

Hotsenpiller was asked to submit a specific list of disputed costs to the court within 20 days. Thereafter, Price will have 20 days to respond.