Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 18 2014, 9:34 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenburg, Indiana Attorney General of Indiana
JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
HENRY WOODS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1308-CR-701 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Deborah J. Shook, Commissioner Cause No. 49F07-1210-CM-75006
March 18, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
On October 24, 2012, Appellant-Defendant Henry Woods was involved in a traffic
accident with Bianca Cunningham. As a result of the traffic accident, Cunningham suffered
injuries to her person and her vehicle was totaled. Upon testing, it was determined that at the
time of the accident, Woods was operating his vehicle while under the influence of alcohol.
On or about November 5, 2012, the Appellee-Plaintiff the State of Indiana charged
Woods with three misdemeanor offenses for operating a vehicle while intoxicated (“OWI”).
Woods subsequently pled guilty to one count of Class A misdemeanor OWI. Pursuant to the
terms of the plea agreement, Woods agreed to pay restitution to Cunningham. In exchange
for Woods’s plea, the State agreed to dismiss all of the remaining charges.
On appeal, Woods challenges the trial court’s order that he pay $1600 in restitution to
Cunningham for the damage to her vehicle. In raising this challenge, Woods argues that the
evidence is insufficient to sustain the restitution award, and that the trial court failed to
inquire into his ability to pay the amount of restitution ordered. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
The factual basis entered during the March 14, 2013 guilty plea hearing provides as
follows:
[O]n or about October 24, 2012, in Marion County, State of Indiana, at 6500 East 21st Street, the following named defendant, Henry Woods, did operate a vehicle in a manner that endangered a person while intoxicated. More specifically on that date, [O]fficer Earnest Goss with the Indianapolis Metropolitan Police Department … came into contact, contact with the defendant … he … found Henry Woods still sitting in the driver [sic] seat of a vehicle that had been involved in an accident.… [A]t that time the defendant was seen to have glassy eyes … the defendant admitted to having a couple of 2 drinks previous … and confirmed that he had, had a 12 ounce beer.… [F]urther he had an odor of alcoholic beverage on his breath … he did submit to a blood test, which did result a test of, of .26 grams of alcohol per 210 liters of his breath.
Tr. pp. 6-7.
On or about November 5, 2012, the State charged Woods with one count of Class A
misdemeanor OWI, one count of Class A misdemeanor operating a vehicle with an alcohol
concentration above 0.15, and one count of Class C misdemeanor operating a vehicle with an
alcohol concentration between 0.08 and 0.15. On March 14, 2013, Woods entered into a plea
agreement with the State. Pursuant to the terms of the plea agreement, Woods pled guilty to
one count of Class A misdemeanor OWI. Woods additionally agreed to pay restitution to
Cunningham. In exchange for Woods’s plea, the State agreed to dismiss all of the remaining
charges.
During the guilty plea hearing, the trial court questioned Woods about his ability to
pay restitution as provided by the plea agreement. The trial court asked Woods whether he
had any income. Woods answered in the affirmative, stating that he received regular Social
Security disability payments. In agreeing to pay restitution, Woods acknowledged that he
would “have to start budgeting [his] money a little differently.” Tr. p. 16. Taking Woods’s
financial state into account, the trial court ordered that restitution be paid on a “sliding fee
scale so that it doesn’t break the bank.” Tr. p. 15.
On July 17, 2013, the trial court conducted a hearing to determine the amount of
restitution owed to Cunningham. The parties stipulated to a restitution award of $2851 with
3 regard to medical bills for treatment for the injuries suffered by Cunningham. With respect
to Cunningham’s vehicle, Cunningham acknowledged that she did not have any
documentation relating to the pre-accident value of her vehicle. However, she testified that
she had purchased the vehicle three months prior to the accident for $3200. Cunningham
testified that prior to the accident, the condition of the vehicle had not changed substantially
since the purchase date. Cunningham further testified that as a result of the accident, her
vehicle was totaled and she did not recover any insurance funds relating to the remaining or
scrap value of the vehicle. Upon considering Cunningham’s testimony, the trial court
ordered that Woods pay $1600 in restitution for the damage to Cunningham’s vehicle. This
appeal follows.
DISCUSSION AND DECISION
Woods contends that the trial court abused its discretion in ordering that he pay $1600
in restitution to Cunningham for the damage to her vehicle. Specifically, Woods argues that
the evidence is insufficient to sustain the restitution award, and that the trial court failed to
inquire into his ability to pay the amount of restitution ordered. The State counters, arguing
that Cunningham’s testimony regarding the value of and damage to her vehicle is sufficient
to sustain the restitution order, and that the trial court properly inquired into Woods’s ability
to pay restitution.
“A trial court has the authority to order a defendant convicted of a crime to make
restitution to the victims of the crime.” Wolff v. State, 914 N.E.2d 299, 303 (Ind. Ct. App.
2009) (citing Henderson v. State, 848 N.E.2d 341, 345-46 (Ind. Ct. App. 2006)); see also Ind.
4 Code § 35-50-5-3. “The purpose of a restitution order is to impress upon the criminal
defendant the magnitude of the loss he has caused and to defray costs to the victims caused
by the offense.” Id. (citing Henderson, 848 N.E.2d at 346).
It is well established that “restitution must reflect actual loss incurred by a victim,” and that any “loss proven to be attributable to the defendant’s charged crimes” is recoverable as restitution. Batarseh v. State, 622 N.E.2d 192, 196 (Ind. Ct. App. 1993) (discussing Hipskind v. State, 519 N.E.2d 572, 574 (Ind. Ct. App. 1988)), trans. denied. The amount of a victim’s loss is a factual matter that can be determined only on presentation of evidence. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008). An order of restitution is a matter within the trial court’s discretion, and we reverse only on a showing of abuse of that discretion. Wolff, 914 N.E.2d at 303. An abuse of discretion occurs when the order 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.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 18 2014, 9:34 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenburg, Indiana Attorney General of Indiana
JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
HENRY WOODS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1308-CR-701 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Deborah J. Shook, Commissioner Cause No. 49F07-1210-CM-75006
March 18, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
On October 24, 2012, Appellant-Defendant Henry Woods was involved in a traffic
accident with Bianca Cunningham. As a result of the traffic accident, Cunningham suffered
injuries to her person and her vehicle was totaled. Upon testing, it was determined that at the
time of the accident, Woods was operating his vehicle while under the influence of alcohol.
On or about November 5, 2012, the Appellee-Plaintiff the State of Indiana charged
Woods with three misdemeanor offenses for operating a vehicle while intoxicated (“OWI”).
Woods subsequently pled guilty to one count of Class A misdemeanor OWI. Pursuant to the
terms of the plea agreement, Woods agreed to pay restitution to Cunningham. In exchange
for Woods’s plea, the State agreed to dismiss all of the remaining charges.
On appeal, Woods challenges the trial court’s order that he pay $1600 in restitution to
Cunningham for the damage to her vehicle. In raising this challenge, Woods argues that the
evidence is insufficient to sustain the restitution award, and that the trial court failed to
inquire into his ability to pay the amount of restitution ordered. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
The factual basis entered during the March 14, 2013 guilty plea hearing provides as
follows:
[O]n or about October 24, 2012, in Marion County, State of Indiana, at 6500 East 21st Street, the following named defendant, Henry Woods, did operate a vehicle in a manner that endangered a person while intoxicated. More specifically on that date, [O]fficer Earnest Goss with the Indianapolis Metropolitan Police Department … came into contact, contact with the defendant … he … found Henry Woods still sitting in the driver [sic] seat of a vehicle that had been involved in an accident.… [A]t that time the defendant was seen to have glassy eyes … the defendant admitted to having a couple of 2 drinks previous … and confirmed that he had, had a 12 ounce beer.… [F]urther he had an odor of alcoholic beverage on his breath … he did submit to a blood test, which did result a test of, of .26 grams of alcohol per 210 liters of his breath.
Tr. pp. 6-7.
On or about November 5, 2012, the State charged Woods with one count of Class A
misdemeanor OWI, one count of Class A misdemeanor operating a vehicle with an alcohol
concentration above 0.15, and one count of Class C misdemeanor operating a vehicle with an
alcohol concentration between 0.08 and 0.15. On March 14, 2013, Woods entered into a plea
agreement with the State. Pursuant to the terms of the plea agreement, Woods pled guilty to
one count of Class A misdemeanor OWI. Woods additionally agreed to pay restitution to
Cunningham. In exchange for Woods’s plea, the State agreed to dismiss all of the remaining
charges.
During the guilty plea hearing, the trial court questioned Woods about his ability to
pay restitution as provided by the plea agreement. The trial court asked Woods whether he
had any income. Woods answered in the affirmative, stating that he received regular Social
Security disability payments. In agreeing to pay restitution, Woods acknowledged that he
would “have to start budgeting [his] money a little differently.” Tr. p. 16. Taking Woods’s
financial state into account, the trial court ordered that restitution be paid on a “sliding fee
scale so that it doesn’t break the bank.” Tr. p. 15.
On July 17, 2013, the trial court conducted a hearing to determine the amount of
restitution owed to Cunningham. The parties stipulated to a restitution award of $2851 with
3 regard to medical bills for treatment for the injuries suffered by Cunningham. With respect
to Cunningham’s vehicle, Cunningham acknowledged that she did not have any
documentation relating to the pre-accident value of her vehicle. However, she testified that
she had purchased the vehicle three months prior to the accident for $3200. Cunningham
testified that prior to the accident, the condition of the vehicle had not changed substantially
since the purchase date. Cunningham further testified that as a result of the accident, her
vehicle was totaled and she did not recover any insurance funds relating to the remaining or
scrap value of the vehicle. Upon considering Cunningham’s testimony, the trial court
ordered that Woods pay $1600 in restitution for the damage to Cunningham’s vehicle. This
appeal follows.
DISCUSSION AND DECISION
Woods contends that the trial court abused its discretion in ordering that he pay $1600
in restitution to Cunningham for the damage to her vehicle. Specifically, Woods argues that
the evidence is insufficient to sustain the restitution award, and that the trial court failed to
inquire into his ability to pay the amount of restitution ordered. The State counters, arguing
that Cunningham’s testimony regarding the value of and damage to her vehicle is sufficient
to sustain the restitution order, and that the trial court properly inquired into Woods’s ability
to pay restitution.
“A trial court has the authority to order a defendant convicted of a crime to make
restitution to the victims of the crime.” Wolff v. State, 914 N.E.2d 299, 303 (Ind. Ct. App.
2009) (citing Henderson v. State, 848 N.E.2d 341, 345-46 (Ind. Ct. App. 2006)); see also Ind.
4 Code § 35-50-5-3. “The purpose of a restitution order is to impress upon the criminal
defendant the magnitude of the loss he has caused and to defray costs to the victims caused
by the offense.” Id. (citing Henderson, 848 N.E.2d at 346).
It is well established that “restitution must reflect actual loss incurred by a victim,” and that any “loss proven to be attributable to the defendant’s charged crimes” is recoverable as restitution. Batarseh v. State, 622 N.E.2d 192, 196 (Ind. Ct. App. 1993) (discussing Hipskind v. State, 519 N.E.2d 572, 574 (Ind. Ct. App. 1988)), trans. denied. The amount of a victim’s loss is a factual matter that can be determined only on presentation of evidence. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008). An order of restitution is a matter within the trial court’s discretion, and we reverse only on a showing of abuse of that discretion. Wolff, 914 N.E.2d at 303. An abuse of discretion occurs when the order 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. Under our abuse of discretion standard, we will affirm the trial court’s decision if there is any evidence supporting the decision. Creager v. State, 737 N.E.2d 771, 779 (Ind. Ct. App. 2000), trans. denied.
Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013) trans. denied.
I. Sufficiency of the Evidence to Sustain Restitution Award
Initially, we note that Woods stipulated to the $2851 restitution award relating to
Cunningham’s medical bills and does not challenge that portion of the trial court’s order on
appeal. Woods only challenges the sufficiency of the evidence to sustain the $1600
restitution award relating to Cunningham’s vehicle on appeal. As such, our review is limited
to whether the evidence is sufficient to sustain the $1600 restitution award relating to
Cunningham’s vehicle.
The record demonstrates that Cunningham testified about the value of and damage to
her vehicle during the restitution hearing. Cunningham acknowledged that she did not have
5 any documentation relating to the pre-accident value of her vehicle, but testified that she had
purchased the vehicle three months prior to the accident for $3200. Cunningham also
testified that prior to the accident, the condition of the vehicle had not changed substantially
since the purchase date. Cunningham detailed the damage to her vehicle and testified that, as
a result of the damage caused by the accident, her vehicle was totaled. Cunningham further
testified that she did not recover any insurance funds relating to the remaining or scrap value
of the vehicle. In considering Cunningham’s testimony regarding the value of her vehicle,
the trial court acknowledged that the value of a vehicle usually depreciates after the purchase
of the vehicle and determined that based on Cunningham’s testimony, a $1600 restitution
award was appropriate.
Woods argues that the evidence is insufficient to sustain the restitution award because
the State failed to present documentation supporting Cunningham’s testimony about the
damage to and value of her vehicle. However, in Smith, this court concluded that the
victim’s testimony regarding the claimed loss was sufficient to demonstrate the degree of loss
attributable to the defendant’s crime, and that the victim could recover that loss as restitution.
990 N.E.2d at 520. Similarly, in the instant matter, Cunningham’s testimony regarding the
damage to and value of her vehicle is sufficient to demonstrate the degree of loss attributable
to Woods’s criminal actions. As such, we conclude that the evidence, i.e., Cunningham’s
testimony, is sufficient to sustain the trial court’s restitution order. Insofar as Woods
challenges Cunningham’s testimony on appeal, Woods’s argument is merely a request for
this court to reweigh the evidence, which we will not do. Id.
6 II. Woods’s Ability to Pay
Woods also asserts that the trial court failed to inquire into his ability to pay
restitution.
When restitution is ordered as a condition of probation, “the court shall fix the amount, which may not exceed an amount the person can or will be able to pay.” I.C. § 35-38-2-2.3(a)(5). Although the trial court must determine the defendant’s ability to pay the amount of restitution ordered, the statute does not specify the extent to which the court must inquire to determine the defendant’s financial status. Smith v. State, 655 N.E.2d 133, 134 (Ind. Ct. App. 1995), trans. denied; see also Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012) (“The statute sets forth no particular procedure the trial court must follow in determining the defendant’s ability to pay, but we have consistently recognized that some form of inquiry is required.”). Thus, we review this issue for an abuse of discretion. See Smith, 655 N.E.2d at 134.
Id. at 522.
Here, the record reflects that the trial court inquired into Woods’s ability to pay
restitution. Again, during the guilty plea hearing, the trial court asked Woods whether he had
any income. Woods answered in the affirmative, stating that he received regular Social
Security disability payments. The Indiana Supreme Court has held that a trial court may take
Social Security payments into consideration when considering an individual’s ability to pay
restitution. See Kays, 963 N.E.2d at 510. Further, in agreeing to pay restitution, Woods
acknowledged that he would “have to start budgeting [his] money a little differently.” Tr. p.
16. Taking Woods’s financial state into account, the trial court ordered that restitution be
paid on a “sliding fee scale so that it doesn’t break the bank.” Tr. p. 15.
The record clearly demonstrates that the trial court clearly considered Woods’s ability
to pay when imposing the restitution order. As such, we conclude that the trial court did not
7 abuse its discretion in this regard.
The judgment of the trial court is affirmed.
MATHIAS, J., and PYLE, J., concur.