Opinion
1 CA-JV 22-0153 1 CA-JV 22-0158
12-08-2022
IN RE DELINQUENCY OF A.J. and E.J.
Maricopa County Attorney's Office, Phoenix By Philip Casey Grove Counsel for Appellee The Law Office of Kevin Breger, PLLC, Scottsdale By Kevin Breger Counsel for Appellant E.J. David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant A.J.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. JV207312, JV207325 The Honorable Nicole P. Hartley, Judge Pro Tempore
Maricopa County Attorney's Office, Phoenix By Philip Casey Grove Counsel for Appellee
The Law Office of Kevin Breger, PLLC, Scottsdale By Kevin Breger Counsel for Appellant E.J.
David W. Bell Attorney at Law, Higley By David W. Bell Counsel for Appellant A.J.
Vice Chief Judge David B. Gass delivered the decision of the court, in which Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.
MEMORANDUM DECISION
GASS, VICE CHIEF JUDGE
¶1 Juveniles A.J. and E.J. appeal the superior court's order imposing restitution. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Several juveniles, including A.J. and E.J., were involved in an assault and robbery of two juvenile victims. A.J. and E.J. stole several personal items, including a cell phone and a car. One victim told police the cell phone was a $900 iPhone 12, and the car was a $6,000 Lexus IS 250. That victim's representative requested $6,841.88 in restitution.
¶3 A.J. and E.J. pled delinquent to crimes involving theft and property damage and agreed to pay restitution for various losses but disputed the requested restitution for a stolen cell phone and totaled car. At the restitution hearing, the victim's representative testified she bought the cell phone a few weeks before the robbery and did not remember the cost. She claimed she bought the "exact" make and model when she replaced it and provided a receipt for $1,221.52.
¶4 The victim's representative testified the totaled car was a 2006 Lexus IS 250 with around 80,000 miles and cost about $10,000. The insurance company deemed the car a "total loss" and paid out $8,578.06. After searching for several weeks, the family purchased a 2007 Mazda Miata with about 80,000 miles for $12,385.14. The victim's representative claimed the damage caused the car to depreciate and the pandemic decreased the availability of used cars - prolonging the family's search. The victim's representative provided a receipt for the replacement car and requested $3,807.08 (the difference between the insurance payout and the cost of the replacement car).
¶5 After the restitution hearing, the superior court heard oral argument. A.J. and E.J. argued the victim's representative testimony was not sufficiently specific to support the requested restitution. The superior court rejected their arguments, finding sufficient credible evidence supported a restitution award. In ruling, the superior court noted the stolen cell phone was "essentially brand new[,]" the damage decreased the car's value considerably, and the replacement car was "comparable." The superior court found A.J. and E.J. jointly and severally liable for $1,221.52 for the cell phone and $3,807.08 for the car.
¶6 A.J. and E.J. timely appealed the restitution order. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, A.R.S. §§ 8-235.A, 12-120.21.A.1, and Arizona Rule of Procedure for the Juvenile Court 601(a).
ANALYSIS
¶7 A.J. and E.J. argue the superior court incorrectly calculated the restitution amount for the cell phone and car. This court will not disturb a superior court's restitution order absent an abuse of discretion. In re Erika V., 194 Ariz. 399, 400, ¶¶ 2-3 (App. 1999). Though the superior court has broad powers to dispose of the matter, it may not "misapply the law or a legal principle." In re Timothy M., 197 Ariz. 394, 396, ¶ 9 (App. 2000) (citation omitted).
¶8 The purpose of restitution is "to make the victim whole." In re Ryan A., 202 Ariz. 19, 25, ¶ 27 (App. 2002). The superior court, based on the facts of the case, has broad discretion to determine restitution sufficient to make victims whole. In re William L., 211 Ariz. 236, 239, ¶ 12 (App. 2005). In its discretion, the superior court may consider the fair market value, the original purchase price, or the replacement cost. State v. Ellis, 172 Ariz. 549, 551 (App. 1992).
¶9 The State bears the burden of proving a restitution claim by a preponderance of the evidence. See In re Stephanie B., 204 Ariz. 466, 470, ¶ 15 (App. 2003). Proof by a preponderance of the evidence means a "contested fact is more probable than [not]." Maricopa Cnty. Juv. Action No. J-84984, 138 Ariz. 282, 283 (1983).
¶10 Sufficient evidence supported the award for the cell phone. A.J. and E.J. argue insufficient evidence supported the restitution award for the cell phone because the superior court relied only on "the victim ['s] representative's word." But the victim's representative did not simply testify about the replacement cost, she also provided a receipt. The superior court is in the best position to evaluate the evidence and determine its sufficiency. See State v. Stutler, 243 Ariz. 128, 131, ¶ 8 (App. 2017). We find no abuse of discretion.
¶11 The superior court did not abuse its discretion in setting the replacement cost for the car. A.J. and E.J. argue the superior court abused its discretion by awarding restitution for the additional costs incurred in replacing the car. Specifically, they argue the insurance payout made the victim whole, and the additional restitution amounted to a windfall. The superior court found the victim suffered an economic loss beyond the insurance payout because the victim had to spend more to replace the totaled car. The superior court concluded "failing to award the entire replacement cost of the vehicle would prevent the victim from being made whole." As such, the superior court acted within its broad discretion to compensate the victim for the replacement cost. See In re William L., 211 Ariz, at 240, ¶ 15.
¶12 A.J. separately argues the pandemic, not her actions, caused the increased replacement cost. See State v. Barrett, 177 Ariz. 46 (App. 1993); State v. Wilkinson, 202 Ariz. 27 (2002). She relies on that precedent to argue the superior court erred when it did not require more evidence for the restitution claim. In Barrett, this court found a car's depreciation based solely on a reduced value published in Kelly Blue Book was speculative and held "[t]here must be a causal connection between the criminal conduct and the claimed loss." Barret, 177 Ariz, at 47-49. If "some causal event other than the defendant's criminal conduct" caused the loss, then "the loss is indirect and consequential and cannot qualify for restitution." Wilkinson, 202 Ariz, at 29, ¶7.
¶13 In contrast, the superior court here did not base its restitution award solely on the pandemic's effect on the used car market. The victim's representative requested restitution based on the actual cost she incurred replacing the car and provided a receipt for the car's replacement. The superior court, thus, based its award on the victim's ability to obtain a replacement car because of the damage A.J. and E.J. caused to the totaled car. Because the superior court has wide discretion when fashioning a restitution award, the superior court did not abuse its broad discretion when it considered the above. See In re William L., 211 Ariz, at 239, ¶ 12.
CONCLUSION
¶14 We affirm.