Kristopher Mark Hardy v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 26 2020, 9:14 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Alexander W. Robbins Curtis T. Hill, Jr. The Law Office of Alex Robbins Attorney General of Indiana Bedford, Indiana Steven Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kristopher Mark Hardy, June 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2892 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie Lemay- Appellee-Plaintiff. Luken, Judge Trial Court Cause No. 32D05-1901-F5-8

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 1 of 5 Statement of the Case [1] Kristopher Hardy (“Hardy”) appeals the trial court’s restitution order entered

after Hardy pled guilty to Level 5 felony burglary. Hardy argues that the trial

court abused its discretion when it ordered him to pay $4,558.65 in restitution.

Finding no abuse of the trial court’s discretion, we affirm the trial court’s

restitution order.

[2] We affirm and remand with instructions.

Issue Whether the trial court abused its discretion when it ordered Hardy to pay $4,558.65 in restitution.

Facts [3] Hardy pled guilty to Level 5 felony burglary in October 2019. The following

month, the trial court held a restitution hearing regarding the burglary victim’s

losses. At the hearing, the victim testified that he had sent a three-page

itemized list of his losses to his insurer, Pekin Insurance (“Pekin”). The

victim’s total estimated replacement cost for the losses was $4,141.

[4] Also at the hearing, Pekin claims adjustor Jeffrey Engel (“Engel”) testified that

Pekin had contracted with National Vendor (“National Vendor”) to determine

the value of the victim’s losses. Engel explained that Pekin “customarily

send[s] . . . all the inventorying and that type of stuff out to . . . a vendor of that

sort[.] They assist with coming up with values . . . on items that were stolen.”

(Tr. Vol. 2 at 12). According to Engel, National Vendor had determined that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 2 of 5 the value of the victim’s losses was $4,558.65. Engel further testified that, after

subtracting the victim’s $500 deductible from the total value of his losses, Pekin

had sent a $4,058.65 check to the victim.

[5] Following the hearing, the trial court issued an order requiring Hardy “to pay

restitution in the amount of $4,558.65.” (App. Vol. 2 at 28). Later that same

day, the trial court issued an amended restitution order requiring Hardy to pay

the victim $500 and Pekin $4,550.65.

[6] Hardy now appeals.

Decision [1] As a preliminary matter, we note that, although mentioned by neither party, the

$4,550.65 that Hardy was ordered to pay Pekin in the amended restitution order

appears to be a typographical error. The parties and the trial court agreed that

the total of the victim’s losses was $4,558.65. On remand, we instruct the trial

court to issue an amended restitution order requiring Hardy to pay the victim

$500 and Pekin $4,058.65. We now turn to the merits of Hardy’s appeal.

[2] Hardy’s sole argument is that the trial court abused its discretion when it

ordered him to pay $4,558.65 in restitution. Hardy specifically argues that “the

correct value of the total replacement cost for the items the victim lost in this

case is . . . the $4,141.00[.]” (Hardy’s Br. at 5).

[3] The trial court has the authority to order a defendant who is convicted of a

crime to make restitution to the victim of the crime. INDIANA CODE § 35-50-5-

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 3 of 5 3. The principal purpose of restitution is to vindicate the rights of society and to

impress upon the defendant the magnitude of the loss the crime has caused.

Morgan v. State, 49 N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016). Restitution also

serves to compensate the victim. Id. at 1094.

[4] A restitution order is within the trial court’s discretion, and we will reverse only

upon a showing of an abuse of that discretion. Long v. State, 867 N.E.2d 606,

618 (Ind. Ct. App. 2007). An abuse of discretion occurs where the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it. Id. In determining whether the trial court abused its discretion, we

will not reweigh the evidence. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct.

App. 2009). We will affirm the trial court’s decision if there is any evidence

supporting it. Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013), trans.

denied.

[5] A restitution order must reflect a loss sustained by the victim “as a direct and

immediate result” of the defendant’s criminal acts. Rich v. State, 890 N.E.2d 44,

51 (Ind. Ct. App. 2008), trans. denied. The amount of actual loss is a factual

matter to be determined upon the presentation of evidence. Id. at 49.

“Evidence supporting a restitution order is sufficient ‘if it affords a reasonable

basis for estimating loss and does not subject the trier of fact to mere

speculation or conjecture.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App.

2011), trans. denied, (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App.

2005)).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 4 of 5 [6] Here, Engel testified that Pekin had contracted with National Vendor to

determine the value of the victim’s losses. Engel explained that National

Vendor customarily assists Pekin with determining the value of losses in

burglary cases. According to Engel, National Vendor had determined that the

value of the victim’s losses in this case was $4,558.65. This evidence “affords a

reasonable basis for estimating loss and does not subject the trier of fact to mere

speculation or conjecture.” See id. Hardy’s argument is a request that we

reweigh the evidence, which we will not do. See Mogg, 918 N.E.2d at 755. The

trial court did not abuse its discretion when it ordered Hardy to pay $4,558.65

in restitution.

[7] Affirmed and remanded with instructions.

Bradford, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 5 of 5