MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2018, 6:21 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle Laux Curtis T. Hill, Jr. St. Joseph County Public Defender’s Attorney General of Indiana Office South Bend, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.B., November 29, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-1469 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable James N. Fox, Appellee-Petitioner. Judge The Honorable James C. Stewart- Brown, Magistrate Trial Court Cause No. 71J01-1801-JD-9
Shepard, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 1 of 6 [1] Upon C.B.’s admission to vandalizing a local business, the juvenile court
ordered him to pay restitution in the amount of $250. Concluding that the
evidence as to the amount of loss is sufficient and that the court properly
ordered him to pay restitution, we affirm.
Facts and Procedural History [2] A petition of delinquency was filed alleging that C.B. had committed the 1 offense of criminal mischief, a Class B misdemeanor if committed by an adult.
Specifically, the petition alleged that in May 2017, C.B. had damaged the
property of a business known as HGR Group. At his initial hearing, C.B.
admitted to the allegation, and the court found him delinquent.
[3] At the dispositional hearing, the court reserved the issue of restitution for a
subsequent hearing. In May 2018, a restitution hearing was held, at the
conclusion of which the court ordered C.B. responsible for restitution in the
amount of $250. C.B. now appeals.
Issues [4] C.B. presents two issues for our review, which we restate as:
I. Whether there was sufficient evidence of the amount of HGR Group’s loss; and
1 Ind. Code § 35-43-1-2 (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 2 of 6 II. Whether the juvenile court erred by ordering him to pay restitution.
Discussion and Decision I. Sufficiency of the Evidence [5] The juvenile court may order a child to pay restitution if the victim provides
reasonable evidence of its loss. See Ind. Code § 31-37-19-5 (b)(4) (2012). As we
have previously noted, Indiana Code section 35-50-5-3 (2014), the adult
restitution statute, requires that a restitution order for property damage be based
on actual loss incurred. A.H. v. State, 10 N.E.3d 37 (Ind. Ct. App. 2014) (citing
Ind. Code § 35-50-5-3 and stating that adult statute is instructive when juvenile
statute is silent), trans. denied. Evidence supporting an order of restitution is
sufficient if it provides a reasonable basis for estimating the loss and does not
compel the trier of fact to speculate or guess. Id.
[6] When C.B. admitted to the allegations, he testified that on May 23, 2017, he
put lotion on some tires and equipment and that he removed a box of screws or
nails from the property of HGR Group. At the restitution hearing, C.B. argued
that his restitution amount should be capped at $750 for any damages that
occurred only on May 23 because the State specified in his delinquency petition
that the damage was less than $750 and May 23 is the only date on which he
was alleged to have caused any damage. In addition, that is the maximum
amount and the date to which he admitted.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 3 of 6 [7] HGR Group claimed total losses of $17,203.84. The State reduced this figure to
$13,903.86 because HGR had included a claim for lost wages for the time its
employees spent cleaning up after the vandalism, which the State said it could
not order the juveniles to pay. The $13,903.86 was then divided between the
six boys involved, arriving at an amount of $2,317.31 per boy. When asked
about insurance coverage, the HGR Group representative testified that there
were numerous incidents and that the insurance company considered each
incident individually with a separate deductible of $1,000.
[8] In ordering restitution for each of the six juveniles, the court limited the amount
to HGR Group’s $1,000 insurance deductible as a maximum and then assigned
an amount to each boy according to what they were charged with and to what
they admitted. For C.B., the court ordered restitution in the amount of $250,
well below the $750 with which he was charged. We find the evidence here
provided a reasonable basis for the court to estimate the loss due to C.B.’s
involvement. Thus, the court’s order of restitution was supported by sufficient
evidence.
II. Juvenile’s Ability to Pay [9] C.B. contends the juvenile court erred by ordering him to pay restitution
because he did not have the ability to pay. The purpose behind a restitution
order is twofold: (1) to impress upon the juvenile the magnitude of the loss he
has caused, and (2) to defray costs to the victim caused by the delinquent act.
M.M. v. State, 31 N.E.3d 516 (Ind. Ct. App. 2015). An order of restitution is a
matter within the juvenile court’s discretion, and we reverse only upon a Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 4 of 6 showing of abuse of that discretion. A.H., 10 N.E.3d 37. An abuse of
discretion occurs when the court’s determination is clearly against the logic and
effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom. Id.
[10] Equal protection and fundamental fairness concerns require that our juvenile
courts inquire into the juvenile’s ability to pay before ordering restitution as a
condition of probation. J.H. v. State, 950 N.E.2d 731 (Ind. Ct. App. 2011). This
inquiry is intended to prevent indigent juveniles from being imprisoned because
of their inability to pay. Id.
[11] It is clear from the record that the court inquired into C.B.’s ability to pay. At
the disposition hearing, the court told C.B. that it did not “have to order the full
amount of restitution” and that it would “need to see what [C.B. was] able to
do.” Tr. Vol. 2, p. 22. At the time of the restitution hearing in May 2018, C.B.
was only fourteen and was unable to obtain a work permit. In response to the
court’s question of what C.B. does to earn money, C.B. responded that the
previous summer he had worked with his uncle and had cut grass, earning
somewhere between $100-$200. The court concluded: “It sounds like you are
able to do some work.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 29 2018, 6:21 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle Laux Curtis T. Hill, Jr. St. Joseph County Public Defender’s Attorney General of Indiana Office South Bend, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
C.B., November 29, 2018 Appellant-Respondent, Court of Appeals Case No. 18A-JV-1469 v. Appeal from the St. Joseph Probate Court State of Indiana, The Honorable James N. Fox, Appellee-Petitioner. Judge The Honorable James C. Stewart- Brown, Magistrate Trial Court Cause No. 71J01-1801-JD-9
Shepard, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 1 of 6 [1] Upon C.B.’s admission to vandalizing a local business, the juvenile court
ordered him to pay restitution in the amount of $250. Concluding that the
evidence as to the amount of loss is sufficient and that the court properly
ordered him to pay restitution, we affirm.
Facts and Procedural History [2] A petition of delinquency was filed alleging that C.B. had committed the 1 offense of criminal mischief, a Class B misdemeanor if committed by an adult.
Specifically, the petition alleged that in May 2017, C.B. had damaged the
property of a business known as HGR Group. At his initial hearing, C.B.
admitted to the allegation, and the court found him delinquent.
[3] At the dispositional hearing, the court reserved the issue of restitution for a
subsequent hearing. In May 2018, a restitution hearing was held, at the
conclusion of which the court ordered C.B. responsible for restitution in the
amount of $250. C.B. now appeals.
Issues [4] C.B. presents two issues for our review, which we restate as:
I. Whether there was sufficient evidence of the amount of HGR Group’s loss; and
1 Ind. Code § 35-43-1-2 (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 2 of 6 II. Whether the juvenile court erred by ordering him to pay restitution.
Discussion and Decision I. Sufficiency of the Evidence [5] The juvenile court may order a child to pay restitution if the victim provides
reasonable evidence of its loss. See Ind. Code § 31-37-19-5 (b)(4) (2012). As we
have previously noted, Indiana Code section 35-50-5-3 (2014), the adult
restitution statute, requires that a restitution order for property damage be based
on actual loss incurred. A.H. v. State, 10 N.E.3d 37 (Ind. Ct. App. 2014) (citing
Ind. Code § 35-50-5-3 and stating that adult statute is instructive when juvenile
statute is silent), trans. denied. Evidence supporting an order of restitution is
sufficient if it provides a reasonable basis for estimating the loss and does not
compel the trier of fact to speculate or guess. Id.
[6] When C.B. admitted to the allegations, he testified that on May 23, 2017, he
put lotion on some tires and equipment and that he removed a box of screws or
nails from the property of HGR Group. At the restitution hearing, C.B. argued
that his restitution amount should be capped at $750 for any damages that
occurred only on May 23 because the State specified in his delinquency petition
that the damage was less than $750 and May 23 is the only date on which he
was alleged to have caused any damage. In addition, that is the maximum
amount and the date to which he admitted.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 3 of 6 [7] HGR Group claimed total losses of $17,203.84. The State reduced this figure to
$13,903.86 because HGR had included a claim for lost wages for the time its
employees spent cleaning up after the vandalism, which the State said it could
not order the juveniles to pay. The $13,903.86 was then divided between the
six boys involved, arriving at an amount of $2,317.31 per boy. When asked
about insurance coverage, the HGR Group representative testified that there
were numerous incidents and that the insurance company considered each
incident individually with a separate deductible of $1,000.
[8] In ordering restitution for each of the six juveniles, the court limited the amount
to HGR Group’s $1,000 insurance deductible as a maximum and then assigned
an amount to each boy according to what they were charged with and to what
they admitted. For C.B., the court ordered restitution in the amount of $250,
well below the $750 with which he was charged. We find the evidence here
provided a reasonable basis for the court to estimate the loss due to C.B.’s
involvement. Thus, the court’s order of restitution was supported by sufficient
evidence.
II. Juvenile’s Ability to Pay [9] C.B. contends the juvenile court erred by ordering him to pay restitution
because he did not have the ability to pay. The purpose behind a restitution
order is twofold: (1) to impress upon the juvenile the magnitude of the loss he
has caused, and (2) to defray costs to the victim caused by the delinquent act.
M.M. v. State, 31 N.E.3d 516 (Ind. Ct. App. 2015). An order of restitution is a
matter within the juvenile court’s discretion, and we reverse only upon a Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 4 of 6 showing of abuse of that discretion. A.H., 10 N.E.3d 37. An abuse of
discretion occurs when the court’s determination is clearly against the logic and
effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom. Id.
[10] Equal protection and fundamental fairness concerns require that our juvenile
courts inquire into the juvenile’s ability to pay before ordering restitution as a
condition of probation. J.H. v. State, 950 N.E.2d 731 (Ind. Ct. App. 2011). This
inquiry is intended to prevent indigent juveniles from being imprisoned because
of their inability to pay. Id.
[11] It is clear from the record that the court inquired into C.B.’s ability to pay. At
the disposition hearing, the court told C.B. that it did not “have to order the full
amount of restitution” and that it would “need to see what [C.B. was] able to
do.” Tr. Vol. 2, p. 22. At the time of the restitution hearing in May 2018, C.B.
was only fourteen and was unable to obtain a work permit. In response to the
court’s question of what C.B. does to earn money, C.B. responded that the
previous summer he had worked with his uncle and had cut grass, earning
somewhere between $100-$200. The court concluded: “It sounds like you are
able to do some work. I’m going to order that you pay restitution in the
amount of $250.00 by the end of December, [sic] 2018, okay?” Id. at 48. The
court also informed C.B. that if he is “working diligently and just can’t get it, I
will extend that deadline for you, okay?” Id. This flexible deadline was
reflected in the court’s restitution order as well. See Appellant’s App. Vol. 2, p.
16 (“If the Juvenile is unsuccessful in paying the restitution in full by the
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 5 of 6 deadline but is making an attempt to pay, the Court reserves the right to extend
the deadline.”). Given the amount of restitution ordered, the income C.B. has
proven capable of earning during the summer, the possibility of higher earnings
once he turns fifteen and is able to obtain a work permit, and the flexible
timeline for payment, the juvenile court did not abuse its discretion in ordering
C.B. to pay $250 in restitution.
Conclusion [12] We conclude that there was sufficient evidence to support the court’s order of
restitution and that the court properly exercised its discretion in ordering C.B.
to pay $250 in restitution.
[13] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JV-1469 | November 29, 2018 Page 6 of 6