Opinion
Court of Appeals No. A-12111 No. 6451
04-05-2017
AUSTIN HARLEY SHIELD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, The Law Office of Nancy Driscoll Stroup, Palmer, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Javier G. Diaz, Assistant District Attorney, 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. 3AN-11-12832 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Nancy Driscoll Stroup, The Law Office of Nancy Driscoll Stroup, Palmer, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Javier G. Diaz, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
On November 12, 2011, the Anchorage Police Department received a tip that Austin Harley Shield, who had a number of outstanding warrants for his arrest, was driving a red Ford truck in the Spenard area. When the police located Shield and attempted to box him in, Shield fled, causing damage to a police vehicle as well as the truck he was driving. The truck was owned by a man named Brian Petross. Shield later pleaded guilty, pursuant to a plea agreement, to one count of felony failure to stop at the direction of a peace officer. As part of the plea agreement, Shield agreed to pay restitution to the Municipality of Anchorage, Petross, and Progressive Insurance Co. (the insurer of the truck) in an amount to be determined.
AS 28.35.182(a)(1).
At the evidentiary hearing regarding restitution, the Progressive insurance estimator testified that the insurance company had ultimately paid $10,390.09 to fix the damage to Petross's truck as well as car rental and towing expenses. After hearing additional testimony from the body shop employee who did the repairs, the superior court ordered Shield to pay restitution to the insurance company in that amount. The superior court also ordered Shield to pay the $500 insurance deductible to Petross. On appeal, Shield challenges these restitution amounts.
The superior court also ordered Shield to pay $44.98 to the Municipality of Anchorage. Shield did not contest this restitution award in the trial court proceedings, and he acknowledges on appeal that any challenge to this restitution award is therefore waived. See Moore v. State, 298 P.3d 209 (Alaska App. 2013).
"An award of restitution must be supported by substantial evidence." If uncertainty exists [regarding the amount of restitution], the appropriate amount ... must be proved by a preponderance of the evidence." When reviewing a restitution award for sufficiency of the evidence, "we construe the record in the light most favorable to the [restitution award] and determine whether a reasonable fact-finder could conclude that the disputed amount of restitution was established by a preponderance of the evidence."
Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993).
Id.
Id. --------
Here, the award to Progressive was supported by testimony of the insurance estimator who had verified the damage to the vehicle as well as the car rental and towing costs. The superior court found the estimator's testimony credible and his conclusions well-supported. Viewing the record in the light most favorable to upholding the award, we conclude that the evidence supporting the award to Progressive Insurance is supported by substantial evidence.
We come to a similar conclusion with regard to the $500 awarded to Petross. On appeal, Shield argues that there was no evidence that Petross ever paid the insurance company the deductible that he owed them. However, there was evidence that Petross's insurance deductible was $500, that the deductible was owed, and that it had not been excused.
Shield also argues that the $500 deductible should be offset by money that he allegedly gave Petross as a down payment for the truck prior to the incident. But Shield never directly argued that his purported truck payments to Petross should offset the deductible that Petross owed to the insurance company after the accident. Moreover, it appears that the superior court did not credit the testimony provided by Shield's friend regarding this purported down payment.
In sum, because the evidence at the evidentiary hearing supports the restitution awards in this case, we AFFIRM the superior court's judgment.