Opinion
13-P-1795
11-25-2014
COMMONWEALTH v. ASHLEE M. POLLARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ashlee M. Pollard, appeals from an order of restitution by the District Court requiring her to pay $925. The restitution order followed the defendant's admission to sufficient facts on a complaint charging her with causing property damage with the intent to intimidate in violation of G. L. c. 265 § 39(a). The sole question on appeal is whether there is a basis in the evidence presented at the restitution hearing for the judge's finding that the victim had out-of-pocket expenses of $925. We affirm.
Background. A restitution hearing was conducted on July 19, 2012. The judge heard testimony from the victim, Meredith Aguiar, and received two exhibits, the police report and an estimate of the cost of the repairs from E.F. Ramos & Sons. The judge heard evidence that at approximately 7:00 A.M. on September 10, 2011, the defendant and her boy friend were engaged in an argument in his apartment, located at 20 Dorothy Street in New Bedford. The defendant's boy friend lived underneath his landlord, Meredith Aguiar. In the course of the argument, the defendant kicked-in Aguiar's back door, which led to her own kitchen. Officers responded to the scene and observed damage to the door hinge which they estimated to be $100. Aguiar testified that it was an aluminum door and that the damage included dents in the door as well as a cracked door casing. Immediately after the incident, Aguiar's husband made some temporary repairs to the door.
On June 29, 2012, Aguiar received an estimate of the cost of repairs from E.F. Ramos & Sons. The estimate covered the replacement of the damaged door, and repairs to the sheetrock around the cracked frame. The estimated cost was $925. Aguiar had the work performed at that price. At the close of the hearing the judge found that Aguiar incurred $925 in out-of-pocket expenses for the repair to the door.
Discussion. "Restitution is limited to economic losses caused by the defendant's conduct and documented by the victim." Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002), citing Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). See Commonwealth v. Denehy, 466 Mass. 723, 740-741 (2014). The procedure for establishing an order of restitution must be fair and reasonable, and such an order must be supported by evidence. Commonwealth v. Nawn, 394 Mass. 1, 6-7 (1985). It is the Commonwealth that bears the burden of proving both a causal connection between the crime and the victim's economic loss, and the amount of the loss by a preponderance of the evidence. See id. at 7-8; Rotonda, supra at 221-222. See also Mass. G. Evid. § 1101 (2014) (comprehensive statement of the law applicable to restitution). The defendant must have an opportunity to be heard and to cross-examine witnesses, and is entitled to rebut the victim's estimate of the injury. Nawn, supra. See Commonwealth v. Rescia, 44 Mass. App. Ct. 909, 910 (1998).
The defendant does not dispute that she was the cause of the damage. The defense only disputes the amount of the restitution because (1) Aguiar did not have the door replaced until July of 2012, and (2) the responding officer wrote in his report that he estimated the damage to the door to be $100. A reasonable delay in commencing or completing repairs does not render the claim invalid, but instead may be considered by the judge in assessing the credibility of the witnesses. Additionally, an estimate of the damage caused by the defendant made by a police officer or other witness may be relevant to the judge's determination, but may vary greatly from the actual cost of the repair, and is not conclusive. Here the judge's finding that the victim incurred out-of-pocket expenses of $925 is supported by the evidence, and implies the resolution of any other factual issues in favor of the Commonwealth. See Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984).
Order of restitution affirmed.
By the Court (Green, Rubin & Agnes, JJ.),
Clerk Entered: November 25, 2014.