Opinion
No. 1-561 / 00-1862
Filed September 26, 2001
Appeal from the Iowa District Court for Polk County, Thomas A. Renda, District Associate Judge.
Leland Dunham appeals from the restitution order entered in his case. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and John Heinicke, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Hecht, JJ.
I. Background Facts and Proceedings .
Leland Dunham pled guilty to theft in the fourth degree based on allegations of theft of merchandise from an Ankeny Menards store on June 25, 1999. The minutes of testimony attached to the trial information included a notation that Dunham was suspected in a similar incident in a Des Moines Menards store on July 30, 1999.
The district court accepted Dunham's plea, entered deferred judgment, and placed Dunham on probation. Dunham was ordered to make restitution to Menards for losses associated with both the June 25 and July 30 incidents. Dunham subsequently requested a hearing to contest the amount of restitution ordered. The district court declined to modify its original restitution order, stating:
Well, the court feels that this is a pattern by the defendant, and if I order restitution of $478.81 — under your theory they could charge him again for another forgery — but I think that under the circumstances that this will lay it all to rest, and I don't think they will file additional charges on him.
So the court is going to order restitution in the amount of $478.81 [covering Menards' loss from both thefts].
If you feel the other one wasn't part of this plot to defraud Menards, they could file another forgery charge on him. So I think it's all one transaction. So the court will order restitution.
Dunham has directly appealed, challenging the district court`s restitution order. He claims the district court erred in ordering him to pay restitution for losses not causally related to the offense for which he pled. Under Iowa Rule of Appellate Procedure 304, Dunham's notice of appeal was treated as a petition for discretionary review, which our supreme court has granted.
II. Standard of Review .
Our review of a restitution order is for correction of errors at law. State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998).
III. The Merits .
Restitution is governed by chapter 910 of the Iowa Code. In criminal cases where there is a verdict of guilty "the sentencing court shall order that restitution be made by each offender to the victims of the offender's criminal activities . . . ." Iowa Code § 910.2 (1999). Restitution is defined, in pertinent part, as "payment of pecuniary damages to a victim in an amount and in the manner provided by the offender's plan of restitution." Iowa Code § 910.1(4). A victim is defined as "a person who has suffered pecuniary damages as a result of the offender's criminal activities." Iowa Code § 910.1(5). Pecuniary damages are defined as "all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium." Iowa Code § 910.1(3).
Restitution orders, therefore, are not limited by the parameters of the offense committed, but may be extended to any damages sustained by the victim of a crime which, with some exceptions, would be recoverable against the offender in a civil action. State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). The State must, however, prove a causal connection between the criminal act and the victim's restitution damages . State v. Starkey, 437 N.W.2d 573, 574 (Iowa 1989). A trial court abuses its discretion and exceeds its statutory authority when it orders restitution for losses not causally related to the offense. State v. Tutor, 538 N.W.2d 894, 896 (Iowa Ct.App. 1995).
The State asserts that causal connection was established by a preponderance of the evidence. Specifically, it points to testimony of a Menards representative at the restitution hearing regarding losses from a similar theft in the Des Moines store and Dunham's failure to specifically deny having committed the second theft. The State contends that it was proper for the court to aggregate the losses from the two thefts under Iowa Code section 714.3 because they were part of a common pattern to defraud the Menards stores.
Iowa Code Section 714.3 states as follows:
If money or property is stolen from the same person or location by two or more acts . . . so that the thefts are attributable to a single scheme, plan or conspiracy, these acts may be considered a single theft and the value may be the total value of all the property stolen.
Under this section the disputed thefts could have been combined and charged as one offense. However, in that circumstance, the State should charge the defendant accordingly and is required to prove the defendant's involvement in each theft and the requisites under section 714.3 for aggregating those thefts. See State v. Amsden, 300 N.W.2d 882, 886 (Iowa 1981). Although the minutes of testimony reflect that Dunham was suspected of committing the second theft, this crime was not charged, and the State's evidence demonstrating Dunham's involvement was nominal. Under these circumstances we find the district court erred in ordering restitution for damages resulting from a crime not "established" as having been committed by Dunham.
The judgment of the district court must be reversed and the case remanded for entry of a restitution order limited to damages from the crime as charged and proven.
REVERSED AND REMANDED.