Opinion
No. 2 CA-JV 2014-0005
06-05-2014
IN RE K.A.
M. Lando Voyles, Pinal County Attorney By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence Counsel for State April Elliott, Pinal County Public Defender By Mary Dreyer, Deputy Public Defender, Florence Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Civ. App. P. 28(c); Ariz. R. P. Juv. Ct. 103(G).
Appeal from the Superior Court in Pinal County
No. S1100JV201200252
The Honorable Kevin D. White, Judge
AFFIRMED
COUNSEL
M. Lando Voyles, Pinal County Attorney
By Rosemary Gordon Pánuco, Appellate Bureau Chief, Florence
Counsel for State
April Elliott, Pinal County Public Defender
By Mary Dreyer, Deputy Public Defender, Florence
Counsel for Minor
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. KELLY, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Appellant K.A. was adjudicated delinquent after she admitted pursuant to a plea agreement that she had committed criminal trespass. Following a restitution hearing, the juvenile court ordered K.A. to pay $5,000 in restitution, the maximum amount of restitution provided under the plea agreement. She appeals from that order. "We review a juvenile court's restitution order for an abuse of discretion." In re Andrew C., 215 Ariz. 366, ¶ 6, 160 P.3d 687, 688 (App. 2007).
¶2 A juvenile court is obligated to order a juvenile to make full or partial restitution to the victim of offenses for which the juvenile has been adjudicated delinquent. A.R.S. § 8-344(A); see also Ariz. Const. art. II, § 2.1(A)(8). The court "has discretion to set the restitution amount according to the facts of the case in order to make the victim whole." In re Ryan A., 202 Ariz. 19, ¶ 20, 39 P.3d 543, 548 (App. 2002). However, a victim may recover only economic losses incurred as a direct result of the juvenile's delinquent conduct. See Andrew C., 215 Ariz. 366, ¶ 9, 160 P.3d at 689 (applying test for determining restitution in criminal cases announced in State v. Wilkinson, 202 Ariz. 27, ¶ 7, 39 P.3d 1131, 1133 (2002)). "The burden of proof applicable to restitution is proof by a preponderance of the evidence." In re Stephanie B., 204 Ariz. 466, ¶ 15, 65 P.3d 114, 118 (App. 2003). We view the evidence in the light most favorable to upholding the restitution order. See Andrew C., 215 Ariz. 366, ¶ 6, 160 P.3d at 688.
¶3 K.A. was arrested after being found in a residence owned by the victim. She admitted having stayed in the house overnight, and the arresting officers observed damage to the home, although K.A. denied having caused it. K.A. was arrested for criminal damage and second-degree burglary, but the state ultimately filed a delinquency petition alleging only criminal trespass. As noted above, K.A. entered into a plea agreement, admitting to having committed criminal trespass. As a term of that agreement, K.A. agreed "to pay restitution for all economic loss arising out of" the police department report and the incident in the report that resulted in her arrest.
¶4 At the disposition hearing, the victim objected to the plea agreement and that K.A. would be found responsible on a lesser charge as a result, pointing out the damage to the house and the losses he had sustained. The prosecutor noted that K.A. had "agreed to pay the restitution amount," "regardless of the charge." K.A. did not object. At the restitution hearing, the victim submitted evidence supporting his claims for damage to the house, totaling $3,981.21, and requested $1,300 for "one month [of] lost rental income," based on his having to delay renting the house for "some one to two months." The victim also noted the professional time he had lost in dealing with the repairs to the house, stating he was an attorney whose hourly rate was "over $300" and he had been required to take "time away from [his] law practice to deal with this."
¶5 During closing arguments at the hearing, K.A. argued she simply had been found in the house and there was no evidence she had caused the damage. She also maintained the rental income loss was "too speculative" and was "consequential damages" that should not be awarded. The juvenile court ordered restitution totaling $5,000.
¶6 K.A. first argues the juvenile court erred in awarding restitution for damage to the house because "there was no evidence that K.A.'s conduct in simply being inside the home without permission directly caused any damage in the house." Relying on this court's decision in In re Maricopa County Juvenile Action No. JV- 128676, 177 Ariz. 352, 868 P.2d 365 (App. 1994), she maintains the court could not impose restitution for the damage in the absence of evidence she had caused it. We disagree.
¶7 "Under Arizona law, a . . . court does not abuse its discretion in ordering a defendant to pay restitution as a condition of probation if the defendant agrees to pay restitution pursuant to a plea agreement or otherwise." State v. Phillips, 152 Ariz. 533, 534, 733 P.2d 1116, 1117 (1987), limited by State v. Crowder, 155 Ariz. 477, 480, 747 P.2d 1176, 1179 (1987). In this case K.A. specifically agreed to pay restitution, up to the amount of $5,000 for the damages noted in the police report relating to her arrest. "Thus it is immaterial" that direct evidence of K.A.'s fault for the damage was not presented. Id.; cf. State v. Lukens, 151 Ariz. 502, 505, 729 P.2d 306, 309 (1986) (defendant may agree to pay more restitution than "statutorily-prescribed monetary parameters" of crime if he voluntarily and intelligently agrees), limited by Crowder, 155 Ariz. at 480, 747 P.2d at 1179; State v. Ferguson, 165 Ariz. 275, 277, 798 P.2d 413, 415 (App. 1990) ("A defendant may be ordered to pay restitution only for an offense that he has admitted, upon which he has been found guilty or on which he has agreed to pay restitution."). The situation here therefore is distinguishable from that presented in Maricopa County Juvenile Action No. JV-128676, because in that case the juvenile agreed to pay only restitution for which he was determined to be "legally responsible." 177 Ariz. at 353, 868 P.2d at 366.
¶8 K.A. also maintains the juvenile court should not have ordered her to pay restitution based on lost rental income "when there was no tenant available to rent the house." She maintains the amount claimed by the victim was speculative and did not directly relate to her offense. To the extent K.A. again suggests by this argument that there was insufficient evidence she caused the damage to the house, we reject the argument for the reasons stated above.
¶9 We likewise reject K.A.'s claim that an award of lost rent was speculative, both as to amount and as to whether the house in fact would have been rented. She argues that because the victim "did not have a real, concrete person" to rent the house on the date of the offense, the victim was "getting a windfall." A juvenile court "has substantial discretion" to determine the amount of economic loss sustained by a victim "according to the facts of the case." State v. Madrid, 207 Ariz. 296, ¶ 5, 85 P.3d 1054, 1056 (App. 2004). "We will uphold a restitution award if it bears a reasonable relationship to the victim's loss." Id.
¶10 The state presented a police report indicating the victim's property manager had told the officer who created the report that "the house is going to be rented out in a few weeks." The victim testified the damage to the house delayed by a month or two his ability to rent the property. He also stated that after the repairs were made he rented the property in the middle of August, five to six weeks after the crime. And, the rental value the victim provided in his restitution request was the amount he currently was receiving on the property, which he testified was consistent with the recommendation of his rental agent as to fair rental value of the property. Because the property was rented promptly upon repair at the rate requested by the victim, there was reasonable evidence to support the amount the juvenile court awarded. See id.
¶11 Finally, K.A. suggests that the victim's lost rental income was consequential damage, which cannot be included in the amount of restitution that may be awarded. See In re William L., 211 Ariz. 236, ¶¶ 11, 13, 119 P.3d 1039, 1042 (App. 2005); see also A.R.S. §§ 13-105(16), 13-603(C). She compares the lost rent to "lost profits or future lost wages." But, "lost profits" are not necessarily prohibited consequential damages for purposes of restitution. State v. Young, 173 Ariz. 287, 289, 842 P.2d 1300, 1302 (App. 1992). Likewise, loss of future wages may be awarded as restitution if properly supported by evidence. State v. Howard, 168 Ariz. 458, 460, 815 P.2d 5, 7 (App. 1991). Arizona courts have ruled that determining whether a damage is consequential requires a fact-intensive, case-by-case analysis. See State v. Guilliams, 208 Ariz. 48, ¶ 18, 90 P.3d 785, 790-91 (App. 2004); see also State v. Lindsley, 191 Ariz. 195, 198, 953 P.2d 1248, 1251 (App. 1997) (distinguishing feature of consequential damage is "how directly the loss flows from the crime"). In view of the legal complexity involved in such a determination, K.A. has not adequately developed an argument that the lost rental income awarded here was a consequential damage, nor has she cited legal authority in support of such an argument. We therefore deem any such argument waived.
¶12 For these reasons, we affirm the adjudication, disposition, and order of restitution.