Opinion
Court of Appeals Case No. 21A-CR-2891
08-22-2022
Deborah Louise CLASPELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Mathias, Judge, concurring in part and dissenting in part.
[1] I concur in my colleagues’ analysis of the double-jeopardy question. However, I respectfully dissent on the issue of the sufficiency of the evidence underlying the restitution order.
[2] As we have explained:
"[T]he principal purpose of restitution is to vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused , and that restitution also serves to compensate the victim." Morgan v. State , 49 N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State , 981 N.E.2d 55, 56 (Ind. 2013) ). Pursuant to Ind. Code § 35-50-5-3(a)(1), in ordering restitution, a trial court shall consider "property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)." ...
Accordingly, a restitution order must reflect a loss sustained by the victim "as a direct and immediate result" of the defendant's criminal acts. Rich v. State , 890 N.E.2d 44, 51 (Ind. Ct. App. 2008), trans. denied. The amount of actual loss is a factual matter to be determined upon the presentation of evidence. Id. at 49. We review a trial court's order of restitution for an abuse of discretion. Bockler v. State , 908 N.E.2d 342, 348 (Ind. Ct. App. 2009) ....
Baker v. State , 70 N.E.3d 388, 390 (Ind. Ct. App. 2017) (emphasis added; alteration original to Baker ), trans. denied.
[3] A "restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime." Garcia v. State , 47 N.E.3d 1249, 1252 (Ind. Ct. App. 2015) (emphasis added), trans. denied. Evidence that leads only to "mere speculation or conjecture" about a victim's actual loss is insufficient to sustain a restitution order. Id. For example, we have held that "estimates" of repair costs "with no additional evidence" of an actual loss are "mere speculation or conjecture." Id.
[4] Here, the only evidence offered by the State of the victims’ losses were two documents. One document was an "estimate" that Porter had suffered about $2,600 in damages to his vehicle, of which Porter would have to pay his $500 insurance deductible. Appellant's App. Vol. 2, pp. 22-24. The other document was Glasper's car insurance declarations page, which showed that she also had a $500 deductible for collisions. Id. at 26.
Claspell did not object to the State's tendering of these documents or reliance on them in the trial court.
[5] The State's evidence is insufficient to support the restitution order for two reasons. First, neither of those documents demonstrates an actual loss, and neither of the victims testified to an actual loss. Porter never testified that he in fact spent $500 or any other sum to repair or replace his vehicle. See Tr. Vol. 2, p. 19. Similarly, Glasper testified that her car was "totaled," but she did not testify that she had in fact paid her $500 deductible or any other sum to repair or replace her vehicle. Id. at 8. Thus, the State's documents showed losses that Porter and Glasper only might have incurred.
[6] Second, the victims’ insurance policies are not relevant to a criminal restitution order in any event. Indeed, in Baker , the defendant collided with the victim's car and totaled it. The victim's totaled car had an actual cash value of $1,718.81, which the victim's insurance company paid to the victim. But the victim had to buy a replacement vehicle, which cost her $3,800. The trial court ordered the defendant to pay the victim the difference between the victim's replacement cost and the insurance payment, or about $2,000, in restitution.
It is not clear whether the actual cash value of the vehicle was determined based on its condition before or after the accident.
[7] We held that the trial court abused its discretion. As we explained:
the standard followed in Indiana is that restitution shall be based on the "actual cost of repair (or replacement if repair is inappropriate)." I.C. § 35-50-5-3(a)(1) .... [F]or restitution purposes, the replacement cost is the value of the destroyed item at the time of the loss. Here, that amount would be the value of the [totaled car] at the time of the accident. The State's only evidence in this regard is the $1,718.81 amount paid by insurance. The trial court, however, improperly based its restitution order on the $3,800 cost of [the replacement vehicle] minus the insurance payment. The $1,718.81 paid by the insurance company may or may not represent the actual replacement cost of the destroyed item, but even if it does, [the defendant] is not entitled to a credit for the victim's insurance payment....
As observed by our Supreme Court, restitution is "part and parcel to our system of criminal punishment" and it cannot be precluded by civil settlements, or as in this case, insurance payments. Haltom v. State , 832 N.E.2d 969, 971 (Ind. 2005). [The defendant] may not now shield himself from a restitution order by arguing that the victim was already compensated in the form of insurance payments. Indeed, it seems incongruous with the purposes of restitution that the defendant should reap the benefits of the victim's insurance policy.
70 N.E.3d at 391 ; see also S.G. v. State , 956 N.E.2d 668, 684 (Ind. Ct. App. 2011) ("[r]estitution is not a means by which a victim may obtain better or more state of the art equipment" but, rather, is a measure of "the actual replacement cost of" the damaged property), trans. denied. Thus, in Baker , we remanded with instructions for the trial court "to enter a restitution order for the value of the [totaled car] prior to the accident." 70 N.E.3d at 392.
We added that criminal restitution orders need not provide a victim with a duplicate recovery, as restitution can be paid "directly to [the] insurance company." Baker , 70 N.E.3d at 391 (citing Little v. State , 839 N.E.2d 807, 810 (Ind. Ct. App. 2005) ).
[8] So too here. The "magnitude of the loss" incurred by Claspell's actions is the loss in fair market value of the two vehicles as a result of her collision with them. Id. at 390. As the State's evidence was insufficient to support the trial court's restitution order, I would remand with instructions for the court to hold a new restitution hearing to determine the victims’ actual losses in accordance with this opinion. See Garcia , 47 N.E.3d at 1253.