Majra Russell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 12, 2015
• Docket: 49A02-1407-CR-448
• Status: Published

Opinion

MEMORANDUM DECISION Feb 12 2015, 7:08 am 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 Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana

Kenneth E. Biggins Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Majra Russell, February 12, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1407-CR-448 v. Appeal from the Marion Superior Court; The Honorable Amy Jones, Judge; The Honorable David State of Indiana, Hooper, Magistrate; Appellee-Plaintiff. 49F08-1312-CM-77688

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-448 | February 12, 2015 Page 1 of 5 [1] Majra Russell challenges the sufficiency of evidence supporting her conviction

of Class B misdemeanor criminal mischief.1 Russell also argues the trial court

abused its discretion by ordering restitution.

[2] We affirm.

Facts and Procedural History [3] On November 17, 2013, Jacquelyn Williams heard her son, Jimmy Brently,

arguing with Russell on Williams’ front porch. When Brentley closed the door,

Russell kicked it, damaging the door and lock. Police observed damage to the

door but did not photograph it that day. On November 25, 2013, a detective

was called to Williams’ home and photographed the damage. Williams

obtained a written estimate of the cost to repair the damage. The contractor

incorrectly listed the date of the estimate as November 3, 2013 rather than

December 3, 2013, and Williams testified regarding this discrepancy.

[4] The trial court found Russell guilty of criminal mischief, imposed a sentence of

180 days, with credit for four days and 176 days suspended, and ordered

Russell to pay $575.00 in restitution.

1 Ind. Code § 35-43-1-2 (2013).

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-448 | February 12, 2015 Page 2 of 5 Discussion and Decision 1. Sufficiency of Evidence

[5] Russell asserts there is insufficient evidence to support her conviction.

When reviewing the sufficiency of the evidence this Court will not weigh the evidence or determine the credibility of witnesses. Rather, we will consider only that evidence which is favorable to the State, together with all logical and reasonable inferences to be drawn therefrom. The verdict will be upheld so long as there is sufficient evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [6] Anderson v. State, 469 N.E.2d 1166, 1169 (Ind. 1984). The testimony of a single

eye witness is sufficient to sustain a conviction. Brasher v. State, 746 N.E.2d 71,

72 (Ind. 2001).

[7] Williams testified Russell kicked her door. Officer Anthony Priami testified:

“There was damage to the outer-door which is a screen door with glass and a

wood door leading into the residence.” (Tr. at 27.) A detective photographed

the damage. Russell argues Williams’ testimony is false because her son was

involved in the argument and she is biased. However, it is the province of the

fact-finder to judge the credibility of witnesses and we will not reassess it. See

Santana v. State, 10 N.E.3d 76, 77 (Ind. Ct. App. 2014) (reweighing evidence not

permissible when evidence only shows “a real possibility” of other action).

[8] As there was sufficient evidence Russell caused the damage to the door, we

affirm her conviction.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-448 | February 12, 2015 Page 3 of 5 2. Restitution

[9] Russell asserts the trial court abused its discretion by ordering her to pay

restitution because the evidence was insufficient to prove actual loss.2

[10] A restitution order must be supported by sufficient evidence of actual loss sustained by the victim or victims of a crime. The amount of actual loss is a factual matter that can be determined only upon the presentation of evidence. We review a trial court’s order of restitution for an abuse of discretion. We will affirm the trial court’s order if sufficient evidence exists to support its decision. [11] Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008) (internal citations and

quotations omitted), trans. denied.

[12] This restitution order is well within the discretion of the trial court. The State

produced photographs of the damage and the estimate stating repairs would

cost $575.00. Although the estimate is incorrectly dated, Williams explained

the discrepancy and was cross-examined about it. Her testimony, the

photographs, and the estimate establish the amount of loss Williams incurred,

making the evidence sufficient to support the restitution order. See Guzman v.

State, 985 N.E.2d 1125, 1130 (Ind. Ct. App. 2013) (letter of medical expenses

sufficient to prove loss).

2 The State argues this argument is waived because Russell did not object to the order during the sentencing. However, we have reversed restitution orders when the defendant did not object at the earliest opportunity to such an order. See, e.g., Johnson v. State, 845 N.E.2d 147, 153-54 (Ind. Ct. App. 2006) (unchallenged order still resulted in finding of fundamental error), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-448 | February 12, 2015 Page 4 of 5 Conclusion [13] There was sufficient evidence to support Russell’s conviction and the restitution

order. Accordingly, we affirm.

[14] Affirmed.

Barnes, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-448 | February 12, 2015 Page 5 of 5