Summary
reversing restitution award for installation of new security system because defendant's actions were not a proximate cause of this expense
Summary of this case from Seeley v. StateOpinion
Court of Appeals No. A-12331 No. 6668
08-08-2018
Appearances: Kevin Higgins, Law Office of Kevin Higgins, Juneau, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 1KE-14-021 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Kevin Higgins, Law Office of Kevin Higgins, Juneau, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Under the terms of a plea agreement, Kiezer Henderson pleaded guilty to second-degree theft for embezzling money from his employer, a movie theater business.
(Henderson worked in a small theater where he was both the ticket seller and the ticket taker. From time to time, when Henderson sold a ticket, the customer would simply walk into the theater without insisting on receiving a printed ticket. In these instances, Henderson would occasionally put the ticket aside, sell it to a later customer, and pocket the money for himself. Henderson's employer would be none the wiser, because the money in the theater's till would still match the number of tickets issued.)
Henderson's plea agreement did not resolve the question of restitution. Instead, this matter was left to be decided by the sentencing court.
At the restitution hearing, Henderson's employer estimated that Henderson's thefts totaled more than $25,000. Henderson, on the other hand, claimed that he had stolen no more than $3000.
The sentencing judge ultimately rejected both of these figures and ordered Henderson to pay restitution in the amount of $10,000. The judge also ordered Henderson to pay an additional $5000 to reimburse the theater business for the cost of purchasing and installing a new security/surveillance system.
On appeal, Henderson and the State agree that the sentencing judge was wrong to order Henderson to reimburse his former employer for the new security/surveillance system. While Henderson's actions may have prompted his employer to make this purchase, the parties agree that Henderson's actions were not the proximate cause of this expense, and thus the purchase of the security/surveillance system was not a compensable injury for purposes of the restitution statute. The superior court must delete the $5000 restitution award for the security/surveillance system.
This brings us to the $10,000 restitution award for the stolen admission revenue.
Henderson argues that the superior court's restitution figure is not supported by the record. We cannot resolve this argument because the sentencing judge did not sufficiently explain how he reached the figure of $10,000 — i.e., what evidence, and what inferences from the evidence, he relied on when he calculated the business's losses at $10,000.
In this type of case, the amount of the theater business's losses need not be proved to an exact certainty. Our supreme court has acknowledged that there are many instances where the amount of damage "cannot be fixed with mathematical precision". Burton v. Fountainhead Development, Inc., 393 P.3d 387, 393 (Alaska 2017). In such cases, "the trial judge is necessarily forced to estimate", and the judge "necessarily has some latitude in determining the amount of damages to award." Id.
Thus, the sentencingjudge in Henderson's case was entitled to estimate the total amount of the business's losses, so long as the judge's calculation was "based on evidence that afford[ed] sufficient data from which the court ... [could] properly estimate the amount of damages" to "a reasonable certainty". Recreational Data Services, Inc. v. Trimble Navigation Limited, 404 P.3d 120, 136-37 (Alaska 2017); Sisters of Providence in Washington v. A.A. Pain Clinic, Inc., 81 P.3d 989, 1006-07 (Alaska 2003).
In Henderson's case, however, we are unable to tell whether $10,000 is a reasonable estimate of the theater business's losses, because the sentencing judge did not sufficiently explain the method he employed to reach this figure.
We therefore remand this case to the superior court, and we direct the sentencing judge to more fully explain how he calculated the restitution award. If the judge concludes that he needs to receive additional evidence to resolve the issue of restitution, he is authorized to re-open the restitution proceedings and to re-calculate the amount of the award.
The judge shall issue a supplemental restitution order within 30 days, either further explaining the current $10,000 restitution award or awarding a different amount. The parties shall then have 30 days to file simultaneous memoranda in response to the judge's supplemental order (if they wish).
After this Court has received the sentencing judge's supplemental restitution order and the parties' responsive memoranda (if any), we will resume our consideration of Henderson's appeal.