Opinion
No. 1 CA-JV 12-0207
03-26-2013
IN RE ALEXUS I.
Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman Matthew J. Smith, Mohave County Attorney By Deborah L. Herbert, Deputy County Attorney Attorneys for Appellee Kingman
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24 I
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz. R. P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Mohave County
Cause No. S8015JV201200063
The Honorable Derek C. Carlisle, Judge Pro Tem
AFFIRMED
Jill L. Evans, Mohave County Appellate Defender
By Diane S. McCoy, Deputy Appellate Defender
Attorneys for Appellant
Kingman Matthew J. Smith, Mohave County Attorney
By Deborah L. Herbert, Deputy County Attorney
Attorneys for Appellee
Kingman DOWNIE, Judge ¶1 Alexus I. ("Juvenile") appeals the juvenile court's restitution order. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Juvenile pled delinquent to two counts of shoplifting and agreed to pay restitution for "all economic loss." One of the victim stores -- K-Mart -- reported that although Juvenile had shoplifted $127.89 in apparel, it was only seeking $81.96 in restitution for items that could not be returned to its sales inventory. ¶3 After a contested restitution hearing, the court ordered Juvenile to pay $81.96 in restitution to K-Mart. Juvenile timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 8-235(A).
DISCUSSION
¶4 Juvenile claims the restitution amount was speculative. We disagree. ¶5 We review a restitution order for an abuse of discretion. In re Andrew C., 215 Ariz. 366, 367, ¶ 6, 160 P.3d 687, 688 (App. 2007) (citations omitted). We will uphold a restitution order "if it bears a reasonable relationship to the victim's loss." In re William L., 211 Ariz. 236, 239, ¶ 10, 119 P.3d 1039, 1042 (App. 2005). The State must prove a restitution claim by a preponderance of the evidence. In re Stephanie B., 204 Ariz. 466, 470, ¶ 15, 65 P.3d 114, 118 (App. 2003) (citations omitted). "[A] victim must present evidence to establish that the victim's loss relates directly to the juvenile's offense, and to provide a basis for setting an amount that is not speculative." In re Alton D., 196 Ariz. 195, 197, ¶ 9, 994 P.2d 402, 404 (2000) (internal citation omitted). "To ensure that the victim is made whole, the court has broad discretion in setting the restitution amount based on the facts of the case," but it cannot "order restitution that would make the victim more than whole." William L., 211 Ariz. at 239, ¶ 12, 119 P.3d at 1042. ¶6 K-Mart's loss prevention manager testified that shoplifted apparel totaling $45.93 was returned to the sales inventory, leaving $81.96 in "nonsalable merchandise." Juvenile did not dispute the dollar value placed on those items or the allegation she had damaged them by removing tags and/or packaging. The manager testified it was company policy to return damaged items to the manufacturer at the store's expense and that "[n]inety percent of the time they just send us a new one." However, she never stated that the manufacturer would provide the replacement items to K-Mart free of charge and instead testified, "[i]t still costs the store for that new item." ¶7 We disagree with Juvenile's assertion that the restitution order is inconsistent with State v. Freeman, 174 Ariz. 303, 848 P.2d 882 (App. 1993), and State v. Ferguson, 165 Ariz. 275, 798 P.2d 413 (App. 1990). In both cases, we held that the trial court must reduce the restitution awards by the value of items recovered and returned to the victims. Freeman, 174 Ariz. at 306-07, 848 P.2d at 885-86 (credit for value of merchandise that was available to victim but unclaimed); Ferguson, 165 Ariz. at 277-78, 798 P.2d at 415-16 (credit for stolen property police returned to victims). Here, although Juvenile stole $127.89 in apparel, the value of the items returned to the sales inventory was deducted, and the restitution award included only those items that Juvenile had damaged. The restitution order was designed to make the victim whole and was not an abuse of the juvenile court's discretion.
CONCLUSION
¶8 We affirm the juvenile court's restitution order.
____________________
MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: ____________________
MAURICE PORTLEY, Judge
____________________
PHILIP HALL, Judge