Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before 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:
SUZY ST. JOHN GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
May 29 2014, 10:20 am
IN THE COURT OF APPEALS OF INDIANA
LATROYA RUCKER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1311-CR-918 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable H. Patrick Murphy, Commissioner Cause No. 49F07-1211-CM-77045
May 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
Latroya Rucker smashed a car windshield with bricks and a crowbar and was
convicted of class B misdemeanor criminal mischief. As part of her sentence, she was
ordered to pay $240 in restitution to the owner of the vehicle. She appeals, claiming that the
evidence is insufficient to support the restitution order. We affirm.
Facts and Procedural History
Rucker’s friend Teshawna Crisler worked at a fast food restaurant, and Rucker
periodically drove her to and from work. One night at work, Crisler’s shift manager William
Scott had a confrontation with another employee, who was tardy. After Crisler’s shift, at
about 1:00 a.m., Rucker and another woman went to Scott’s home and knocked on the door.
Scott’s fiancée opened the door and refused Rucker’s provocation to fight her. When Scott
and his fiancée went back inside, they heard a loud noise outside. They looked out the
window and saw Rucker and the other woman repeatedly strike his car windshield with
bricks and crowbars.
The State charged Rucker with two counts of class B misdemeanor criminal mischief.
The trial court convicted her on one count. During Rucker’s bench trial, Scott testified that
the cost to repair his windshield was “right around like $240.00.” Tr. at 10. State’s Exhibit 1
contained a photograph of the smashed windshield. When the trial court pronounced
sentence and ordered restitution, Scott confirmed the cost of repair as “$240.00 for the car.”
Id. at 39. Rucker did not object to Scott’s assertions or the court’s order that she pay $240 in
restitution as part of her sentence. She now appeals the restitution order.
2 Discussion and Decision
Rucker challenges the sufficiency of evidence to support the trial court’s order that
she pay $240 in restitution. Restitution vindicates the rights of society and impresses upon
the offender the magnitude of loss caused by her criminal conduct. Iltzsch v. State, 981
N.E.2d 55, 56 (Ind. 2013). It also compensates the offender’s victim. Id.
At the outset, we address the State’s assertion that Rucker waived her challenge to the
restitution order by failing to object below. “Generally, failure to object to an award of
restitution constitutes waiver of a challenge to the award on appeal, unless a defendant argues
that the award was fundamentally erroneous and in excess of statutory authority.” Morris v.
State, 2 N.E.3d 7, 9 (Ind. Ct. App. 2013), op. on reh’g. “A defendant’s failure to make a
specific and timely objection to the trial court’s receipt of evidence concerning the amount of
restitution constitutes waiver of the issue on appeal.” Id. Nevertheless, a number of cases
have emphasized this Court’s preference for reviewing a trial court’s restitution order even
absent an objection by the defendant. See, e.g., Edsall v. State, 983 N.E.2d 200, 208-09 (Ind.
Ct. App. 2013) (hearing merits of defendant’s claim that trial court lacked statutory authority
to impose restitution where plea agreement never mentioned it) and Rich v. State, 890 N.E.2d
44, 48-49 (Ind. Ct. App. 2008) (“the vast weight of the recent caselaw … indicates that
appellate courts will review a trial court’s restitution order even where the defendant did not
3 object based on the rationale that a restitution order is part of the sentence, and it is [our] duty
… to bring illegal sentences into compliance.”), trans. denied.1
Here, Rucker does not challenge the legality of the restitution order in the sense that it
allegedly violates any plea agreement or maximum sentence. Instead, she simply submits
that the $240 figure is not supported by the record. Because she failed to object to Scott’s
testimony concerning the cost of his repair or to the admission of State’s Exhibit 1 depicting
the damaged windshield, she cannot now complain about their use in determining the amount
of restitution ordered. Thus, although she waived the right to challenge the trial court’s
receipt of this evidence, we will address her insufficiency argument on its merits.
We review a trial court’s order of restitution for an abuse of 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 neither reweigh evidence
nor judge witness credibility. 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.
1 (Citing Cherry v. State, 772 N.E.2d 433, 440 (Ind. Ct. App. 2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223–24 (Ind. Ct. App. 1990), trans. denied ), trans. denied; see also Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct. App. 2008); Kline v. State, 875 N.E.2d 435, 438 (Ind. Ct. App. 2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind. Ct. App. 2007); Bennett v. State, 862 N.E.2d 1281, 1287 (Ind. Ct. App. 2007); Johnson v. State, 845 N.E.2d 147, 153 (Ind. Ct. App. 2006), trans. denied; Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004); Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004)).
4 Indiana Code Section 35-50-5-3(a)(1) requires the trial court to base its restitution
order on a consideration of “property damages of the victim incurred as a result of the crime,
based on the actual cost of repair (or replacement if repair is inappropriate).” Thus, the
restitution order must be supported by sufficient evidence of actual loss suffered by the
victim. Gil v.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before 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:
SUZY ST. JOHN GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
May 29 2014, 10:20 am
IN THE COURT OF APPEALS OF INDIANA
LATROYA RUCKER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1311-CR-918 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable H. Patrick Murphy, Commissioner Cause No. 49F07-1211-CM-77045
May 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge Case Summary
Latroya Rucker smashed a car windshield with bricks and a crowbar and was
convicted of class B misdemeanor criminal mischief. As part of her sentence, she was
ordered to pay $240 in restitution to the owner of the vehicle. She appeals, claiming that the
evidence is insufficient to support the restitution order. We affirm.
Facts and Procedural History
Rucker’s friend Teshawna Crisler worked at a fast food restaurant, and Rucker
periodically drove her to and from work. One night at work, Crisler’s shift manager William
Scott had a confrontation with another employee, who was tardy. After Crisler’s shift, at
about 1:00 a.m., Rucker and another woman went to Scott’s home and knocked on the door.
Scott’s fiancée opened the door and refused Rucker’s provocation to fight her. When Scott
and his fiancée went back inside, they heard a loud noise outside. They looked out the
window and saw Rucker and the other woman repeatedly strike his car windshield with
bricks and crowbars.
The State charged Rucker with two counts of class B misdemeanor criminal mischief.
The trial court convicted her on one count. During Rucker’s bench trial, Scott testified that
the cost to repair his windshield was “right around like $240.00.” Tr. at 10. State’s Exhibit 1
contained a photograph of the smashed windshield. When the trial court pronounced
sentence and ordered restitution, Scott confirmed the cost of repair as “$240.00 for the car.”
Id. at 39. Rucker did not object to Scott’s assertions or the court’s order that she pay $240 in
restitution as part of her sentence. She now appeals the restitution order.
2 Discussion and Decision
Rucker challenges the sufficiency of evidence to support the trial court’s order that
she pay $240 in restitution. Restitution vindicates the rights of society and impresses upon
the offender the magnitude of loss caused by her criminal conduct. Iltzsch v. State, 981
N.E.2d 55, 56 (Ind. 2013). It also compensates the offender’s victim. Id.
At the outset, we address the State’s assertion that Rucker waived her challenge to the
restitution order by failing to object below. “Generally, failure to object to an award of
restitution constitutes waiver of a challenge to the award on appeal, unless a defendant argues
that the award was fundamentally erroneous and in excess of statutory authority.” Morris v.
State, 2 N.E.3d 7, 9 (Ind. Ct. App. 2013), op. on reh’g. “A defendant’s failure to make a
specific and timely objection to the trial court’s receipt of evidence concerning the amount of
restitution constitutes waiver of the issue on appeal.” Id. Nevertheless, a number of cases
have emphasized this Court’s preference for reviewing a trial court’s restitution order even
absent an objection by the defendant. See, e.g., Edsall v. State, 983 N.E.2d 200, 208-09 (Ind.
Ct. App. 2013) (hearing merits of defendant’s claim that trial court lacked statutory authority
to impose restitution where plea agreement never mentioned it) and Rich v. State, 890 N.E.2d
44, 48-49 (Ind. Ct. App. 2008) (“the vast weight of the recent caselaw … indicates that
appellate courts will review a trial court’s restitution order even where the defendant did not
3 object based on the rationale that a restitution order is part of the sentence, and it is [our] duty
… to bring illegal sentences into compliance.”), trans. denied.1
Here, Rucker does not challenge the legality of the restitution order in the sense that it
allegedly violates any plea agreement or maximum sentence. Instead, she simply submits
that the $240 figure is not supported by the record. Because she failed to object to Scott’s
testimony concerning the cost of his repair or to the admission of State’s Exhibit 1 depicting
the damaged windshield, she cannot now complain about their use in determining the amount
of restitution ordered. Thus, although she waived the right to challenge the trial court’s
receipt of this evidence, we will address her insufficiency argument on its merits.
We review a trial court’s order of restitution for an abuse of 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 neither reweigh evidence
nor judge witness credibility. 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.
1 (Citing Cherry v. State, 772 N.E.2d 433, 440 (Ind. Ct. App. 2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223–24 (Ind. Ct. App. 1990), trans. denied ), trans. denied; see also Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct. App. 2008); Kline v. State, 875 N.E.2d 435, 438 (Ind. Ct. App. 2007); Laker v. State, 869 N.E.2d 1216, 1220 (Ind. Ct. App. 2007); Bennett v. State, 862 N.E.2d 1281, 1287 (Ind. Ct. App. 2007); Johnson v. State, 845 N.E.2d 147, 153 (Ind. Ct. App. 2006), trans. denied; Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004); Green v. State, 811 N.E.2d 874, 877 (Ind. Ct. App. 2004)).
4 Indiana Code Section 35-50-5-3(a)(1) requires the trial court to base its restitution
order on a consideration of “property damages of the victim incurred as a result of the crime,
based on the actual cost of repair (or replacement if repair is inappropriate).” Thus, the
restitution order must be supported by sufficient evidence of actual loss suffered by the
victim. Gil v. State, 988 N.E.2d 1231, 1235 (Ind. Ct. App. 2013). The amount of a victim’s
loss is a factual matter that can be determined only on presentation of evidence. Smith, 990
N.E.2d at 520. “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) (citation and internal
quotation marks omitted), trans. denied.
The parties agree that the victim’s in-court testimony may be sufficient to support a
restitution order. See, e.g., Blixt v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007)
(holding evidence sufficient to support restitution order based solely on victim’s mother’s
testimony that she had paid $5935.47 to cover her teenage daughter’s psychiatric services
stemming from defendant’s sexual misconduct with daughter).
However, Rucker maintains that Scott’s testimony was imprecise and thus speculative.
In this vein, she takes umbrage with the trial court’s reliance on his testimony that the cost of
repairing his windshield was “right around like $240.00,” characterizing this statement as
merely “rounded up” or “somewhere in the neighborhood of actual cost.” Tr. at 10;
Appellant’s Br. at 4.
5 Rucker relies on Iltzsch v. State, 972 N.E.2d 409 (Ind. Ct. App. 2012), rev’d on other
grounds, 981 N.E.2d 55 (Ind. 2013). In Iltzsch, another panel of this Court reversed a
$711.95 restitution order on insufficiency grounds where the only evidence concerning the
amount of the victim’s loss was the “Victim’s Impact Statement” portion of the presentence
investigation report, as transcribed secondhand from the victim’s unsworn assertions. Id. at
413-14. We find her reliance on Iltzsch misplaced. There, the testimony concerning the
victim’s loss was held insufficient not because it lacked precision (down to the penny) but
because it was secondhand and unsworn. Id.
Here, Scott was under oath when he testified concerning the cost to repair his
windshield. The record also contains photographic evidence of the smashed windshield. To
the extent that Rucker emphasizes Scott’s use of terms such as “around” and “like” in his
testimony, we note that during sentencing, when the trial court was determining the amount
of restitution, Scott explicitly confirmed that his loss “was $240.00 for the car.” Id. at 39.
The trial court acted within its discretion in ordering restitution in that amount, and Rucker’s
arguments amount to invitations to reweigh evidence and judge witness credibility, which we
may not do. Accordingly, we affirm the trial court’s restitution order.
Affirmed.
BAKER, J., and BARNES, J., concur.