Kyra Jacobs v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 18, 2018
• Docket: 18A-CR-554
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 18 2018, 6:26 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court 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 Matthew M. Kubacki Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kyra Jacobs, September 18, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-554 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G08-1708-CM-30979

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018 Page 1 of 5 Case Summary [1] Kyra Jacobs appeals the trial court’s restitution order following her conviction

for class A misdemeanor criminal mischief. Jacobs asserts that insufficient

evidence supports the restitution order and that the trial court abused its

discretion in failing to inquire about her ability to pay. Finding the evidence

sufficient and no abuse of discretion, we affirm.

Facts and Procedural History [2] Pro Logistics is a staffing agency that provides temporary staffing for

warehouses. On August 9, 2017, Jacobs appeared at the Pro Logistics office

and was upset “because she was turned away from a job assignment due to it

being overfilled.” Tr. Vol. 2 at 7. She was “irritated that she had wasted her

time and was asking for reimbursement via gift card or some other kind of

compensation for her time.” Id. After operations manager Christina Powell

apologized to Jacobs and explained to her that the company did not reimburse

for that kind of thing, Jacobs demanded to speak to a supervisor. Jacobs

became more agitated, and Powell advised Jacobs that she needed to leave or

the police would be called. Jacobs then stood up and pushed a computer

“screen forward” onto the floor. Id. at 20. She also smashed a picture frame

and went behind the reception desk and threw a laser printer “to the ground.”

Id. at 21. Both the computer and the printer were “[ef]fectively destroyed.” Id.

at 10.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018 Page 2 of 5 [3] The State charged Jacobs with class A misdemeanor criminal mischief.

Following a bench trial, the court found her guilty as charged and sentenced her

to one year of nonreporting probation. The trial court found Jacobs indigent as

to court costs and instructed her that she could request to be found indigent as

to the nominal fees associated with nonreporting probation in the event she was

unable to pay those fees. The court ordered restitution in the amount of $1694

in favor of Pro Logistics, but specifically advised the parties that the restitution

was “not a condition of Probation.” Id. at 41. Jacobs now appeals the

restitution order.

Discussion and Decision

Section 1 – The State presented sufficient evidence to support the restitution order. [4] Jacobs first contends that the restitution order is not supported by sufficient

evidence. In sentencing a criminal defendant, a trial court may order the

defendant to “[m]ake restitution ... to the victim of the crime for damage ... that

was sustained by the victim.” Ind. Code § 35-38-2-2.3(a)(6). “An order of

restitution is as much a part of a criminal sentence as a fine or other penalty.”

Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016) (quotation marks and brackets

omitted). The imposition of restitution falls “within the trial court’s discretion,

and we will reverse only on a showing of abuse of discretion.” Garcia v. State, 47

N.E.3d 1249, 1252 (Ind. Ct. App. 2015), trans. denied (2016). An abuse of

discretion occurs when the court’s decision is against the logic and effect of the

facts and circumstances before it. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018 Page 3 of 5 [5] “A restitution order must be supported by sufficient evidence of actual loss

sustained by the victim of a crime.” Id. “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.” Id. We will affirm

the trial court’s decision regarding the amount of restitution to be paid if there is

any evidence supporting the decision. Smith v. State, 990 N.E.2d 517, 520 (Ind.

Ct. App. 2013), trans. denied.

[6] The trial court ordered Jacobs to pay Pro Logistics $1694 in restitution. Jacobs

argues that the State presented insufficient evidence to support this estimation

of the actual loss sustained. On the issue of restitution, Powell testified that

Jacobs destroyed a computer and a printer. She stated that the estimated

damage was $995 for the computer and $699 for the printer. She testified that

the damage estimates were based on information she received from the

company’s lead IT employee who was familiar with the cost of replacement,

setup, and installation of those pieces of equipment. This evidence is sufficient,

as it afforded the trier of fact a reasonable basis for estimating the actual loss

suffered by Pro Logistics. Accordingly, we affirm the trial court’s decision

regarding the amount of restitution to be paid.

Section 2 – The trial court was not required to inquire into Jacobs’s ability to pay. [7] Jacobs next asserts that the trial court abused its discretion in entering a

restitution order without first inquiring into her ability to pay. It is well settled

that when restitution is ordered as a condition of probation or suspended

Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018 Page 4 of 5 sentence, the court is required to inquire into the defendant’s ability to pay.

Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). This rule is intended to

prevent an indigent defendant from being imprisoned because of a probation

violation based on her failure to pay restitution. Bell v. State, 59 N.E.3d 959,

963 (Ind. 2016). However, when restitution is ordered as part of an executed

sentence, no inquiry into the ability to pay is required because restitution is

merely a money judgment, and a defendant cannot be imprisoned for

nonpayment. Id.

[8] The trial court here simply entered a money judgment against Jacobs. Indeed,

the court declined to make the restitution order a condition of probation and

specifically acknowledged, “We’ve not inquired [in]to her ability to pay. So I

can’t make it a condition of Probation.” Tr. Vol. 2 at 40. Jacobs concedes this

point but nevertheless argues that the trial court abused its discretion in failing

to inquire into her ability to pay. Jacobs directs us to no legal authority, and we

are unaware of any, which imposes such a requirement under the

circumstances. The trial court did not abuse its discretion.

[9] Affirmed.

Najam, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018 Page 5 of 5