Opinion
Court of Appeals No. A-9952.
April 16, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-05-2016 CR.
John C. Pharr, Anchorage, for the Appellant. Michael J. Walsh, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
John P. Rogers was convicted of vehicle theft in the first degree, a class C felony. Superior Court Judge Beverly Cutler sentenced Rogers to 3 years of imprisonment and imposed restitution in the amount of $3,952.65 ($1,382.64 for vehicle damage, $2,081.10 for depreciated value, and $488.91 for towing and incidental charges). Rogers appeals the vehicle damage and depreciated value portions of the restitution order. We affirm in part and remand.
AS 11.46.360(a)(1).
AS 11.46.360(c).
Rogers was convicted of vehicle theft for knowingly driving a 2005 Pontiac Grand Prix, when he had no right to do so and no reasonable ground to believe that he had such a right. The car was the property of Alaska Sales and Service. It was apparently stolen from the Alaska Sales and Service lot.
AS 11.46.360(a)(1).
Rogers contends that Judge Cutler erred when she imposed $1,382.64 in restitution for damages to the Pontiac. Rogers does not directly challenge the evidence about the amount of damage to the car. Instead, he argues that there was no evidence that he did anything other than what he said he did — drive the car for a few miles. He recognizes that Judge Cutler "made it abundantly clear that she did not believe Mr. Rogers's account." But he argues that the judge's rejection of his testimony was insufficient to hold him accountable for the damage to the car. We conclude that Judge Cutler did not abuse her discretion in concluding that the State had met its burden of showing that Rogers was responsible for the damage to the car.
Judge Cutler could find that Rogers's account of how he obtained the car was not credible. Rodgers initially testified that, if the vehicle was damaged, the person from whom he obtained the car was the person who damaged it. He later testified that the car was in pristine condition when the troopers impounded it. He gave a very involved explanation of how he obtained the Pontiac. Judge Cutler could conclude that this explanation was not credible and that Rogers was responsible for the damage. We uphold her finding that Rogers was the person who damaged the Pontiac. Cheri Herrington, an administrative assistant at Alaska Sales and Service, testified about the damage to the car and the cost of the repairs. We conclude that Judge Cutler did not err in awarding $1,382.64 for the cost of the damage to the car.
Rogers also contends that Judge Cutler erred in ordering him to pay restitution based on the claim by Alaska Sales and Service that they had to sell the car for $2,081.10 less because it had been stolen. Herrington provided testimony in support of this claim. The evidence in support of this claim is confusing. According to Herrington, the Pontiac was worth roughly $25,000.00 when it was stolen but that, following the theft, Alaska Sales and Service decided to reduce the price of the car to $21,532.10 — apparently the dealer's cost. Herrington testified that it was necessary to reduce the price of the car even further because a buyer would insist on a lower price because the car had been stolen, had been damaged, and the buyer would be concerned about how the car was treated.
But we are unable to determine from the record the exact amount that Alaska Sales and Service was able to sell the car for. Herrington initially testified that Alaska Sales and Service sold the car for $19,700.00. She later testified that they sold the Pontiac for $19,851.00, and that Alaska Sales and Service was asking for the difference between their reduced price of $21,532.10 and $19,851.00. The State points out that the difference between these two figures is $1,681.10, not the $2,081.10 that Judge Cutler awarded. The State argues that this was a simple arithmetic error. But Herrington may have been wrong when she testified that the car sold for $19,851.00. According to an invoice that was apparently submitted by Alaska Sales and Service through Herrington's testimony, the actual selling price of the car appears to have been $400.00 lower. It is difficult to tell from the handwriting on this document whether the hundreds' place digit is a "4" or "8."
Judge Cutler could find that Alaska Sales and Service was damaged by the fact that it was more difficult to sell the Pontiac after it had been stolen. And, from the testimony, she could find that Rogers was responsible for that damage. The amount of damage to Alaska Sales and Service is supported by the record except for the fact that we cannot determine the amount for which the Pontiac was sold. We accordingly must remand this case back to the superior court to determine this amount. In all other respects, the restitution order is AFFIRMED. We do not retain jurisdiction.