Opinion
Court of Appeals No. A-11663 No. 6137
01-28-2015
DAVID L. CONOVER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David L. Conover, pro se, Wasilla, for the Appellant. Brittany L. Dunlop, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-12-1217 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, David L. Zwink, Judge. Appearances: David L. Conover, pro se, Wasilla, for the Appellant. Brittany L. Dunlop, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. PER CURIAM.
David L. Conover damaged a vehicle by running a backhoe into it. Pursuant to a plea agreement, Conover was convicted of fourth-degree criminal mischief for his conduct, with restitution for the damage to be determined by the court. After a restitution hearing, District Court Judge David L. Zwink ordered Conover to pay restitution in the amount of $3,950.70.
AS 11.46.484.
Conover appeals this restitution order, contesting the district court's findings concerning the extent of the damage he caused to the vehicle and the amount of restitution ordered. He also claims the district court erred when it found that the person Conover was ordered to pay was the owner of the damaged vehicle. We affirm the restitution judgment of the district court.
According to the testimony at the restitution hearing, Conover damaged the vehicle — a 1999 Chevrolet Camaro Coupe — when he intentionally pushed it with a backhoe. According to the vehicle's owner, Harold Rudolph, Conover first bumped the Camaro with the backhoe, but when Rudolph shouted at him, Conover then used the backhoe to push the Camaro "eight to ten feet into a bunch of big tires and some metal tracks from a dozer."
Conover contends that Judge Zwink erred when he found that Rudolph owned the Camaro. But when Conover's attorney was pressing this issue at the hearing, Rudolph said that he had ownership documents in his nearby truck and offered to retrieve them. After Conover's attorney indicated that he did not think that was necessary, Judge Zwink asked, "So you're willing to concede that [Rudolph] owned the vehicle?" Conover's attorney replied, "Yeah." Consequently, this issue was not preserved for appeal.
See Miller v. Miller, 105 P.3d 1136, 1142 n.21 (Alaska App. 2005) (citing Hoffman Constr. Co. v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001) ("As a general rule, we will not consider arguments for the first time on appeal.")).
Conover also contends that the restitution award was excessive. At the hearing, the State submitted photographs of the car and two repair estimates. One estimate was for $3,950.70, and the other was for $5,250.73. The State also submitted evidence that the Camaro was worth approximately $4,455.00. Judge Zwink ordered Conover to pay the amount of the lower estimate, $3,950.70.
Conover argues that Judge Zwink erred by holding him financially liable for the full repair costs because the car had pre-existing damage. In particular, Conover claims that photographs admitted as exhibits during the hearing show that the car's hood, front quarter panel, driver's side door, and driver's side mirror had been previously damaged.
Conover waived this claim of error by not litigating it during the restitution hearing. To prove the amount of restitution Conover owed, the State submitted photographs of the car, exhibits that generally set out the damage to be repaired, and estimates of the costs to repair the damage. Conover did not challenge the estimates on the ground that they included the cost of repairing damage he did not cause. Because this issue was not raised at the hearing, it was not preserved for appeal.
Id.
With respect to Conover's claim that the restitution award was excessive because there was pre-existing damage, Judge Zwink, based on the evidence submitted at the hearing and Rudolph's testimony, found that the car was in only "fair condition." According to the evidence — that is, the Kelley Blue Book — "fair condition" meant that the car had some defects and required servicing, and that the paint and body might need professional servicing. In other words, Judge Zwink's findings included that the car was not without defects. These findings are not clearly erroneous, and they support the restitution amount the court ordered.
See Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993).
In his reply brief, Conover contends for the first time that the restitution award should be limited to $800, the amount Rudolph paid for the vehicle. But an appellant is not allowed to raise new claims in a reply brief. If a litigant raises a claim for the first time in the reply brief, that claim is deemed waived or forfeited (even if the claim was litigated in the lower court). We note, however, that this issue was discussed at the hearing, and Judge Zwink found that the car's current value was higher than the $800 Rudolph paid for it.
Berezyuk v. State, 282 P.3d 386, 399 (Alaska App. 2012).
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We AFFIRM the judgment of the district court.