MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 12 2019, 9:56 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. Blackford County Public Defender Attorney General of Indiana Marion, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Holiday, March 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2014 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable John N. Barry, Appellee-Plaintiff. Judge Trial Court Cause No. 05D01-1712-CM-339
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 1 of 9 Case Summary and Issue [1] Following a bench trial, Thomas Holiday was found guilty of battery resulting
in bodily injury, a Class A misdemeanor. The trial court sentenced Holiday to
one year of probation and ordered him to pay restitution in the amount of
$1,295.44. This case presents the sole issue of whether the trial court abused its
discretion in ordering Holiday to pay $1,295.44 in restitution. Concluding the
trial court abused its discretion, we reverse the restitution order and remand for
a new restitution hearing.
Facts and Procedural History [2] Nicole Lugar and Holiday were in an on and off romantic relationship and
shared a son together. The two had been living together at Lugar’s apartment,
but were experiencing relationship problems. Lugar asked Holiday to move out
on November 8, 2017. Holiday packed his belongings and left. On the
morning of November 9, Lugar and Bruce Hall1 awoke to find Holiday
standing at the end of their bed “[d]istraught, upset, [and] mad[.]” Transcript,
Volume I at 8. As Hall tried to get out of bed, Holiday “clenched his fists” and
walked toward Hall. Id. Holiday grabbed Hall and as Hall attempted to push
Holiday, he fell onto the bedside table and hit his head, causing him to lose
1 Holiday testified that, one month prior to the incident, Lugar and Hall had been in a relationship “for a week.” Transcript, Volume I at 37. Lugar and Hall were dating at the time of the incident and were engaged by the trial date.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 2 of 9 consciousness. When Hall regained consciousness, Holiday was on top of him,
punching him. At some point, Holiday stuck his finger in Hall’s eye. See id. at
9. As a result, the side of Hall’s face was bruised and he suffered a “softball
size[d]” area of internal bleeding on his leg, which prompted him to go to the
hospital. Id. at 10.
[3] On December 7, the State charged Holiday with a single count of battery
resulting in bodily injury, a Class A misdemeanor. A bench trial was held on
July 20, 2018, and the trial court found Holiday guilty as charged. Hall
requested restitution in the amount of $1,295.44, which included medical
expenses and lost wages. At the bench trial, Hall testified that he was
uninsured at the time of the incident and received a cash discount from the
hospital. He also testified that due to his injuries, he took a few days off work,
where he earned $14 or $15 per hour. The trial court sentenced Holiday to one
year, with all time being suspended to formal supervised probation and ordered
him to pay $1,295.44 in restitution to Hall as a condition of probation. Holiday
objected to the restitution amount at trial and now appeals the trial court’s
restitution order.
Discussion and Decision I. Standard of Review [4] A restitution order must be supported by sufficient evidence of actual loss
sustained by the victim of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.
App. 2008), trans. denied. “The harm or loss must come as a direct and Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 3 of 9 immediate result of the criminal acts of a defendant.” Id. at 51 (internal
quotation omitted). The amount of actual loss is a factual matter determined
only by the presentation of evidence and we will reverse a restitution order only
for an abuse of discretion. Id. at 49. An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effects of the facts and
circumstances before it. Long v. State, 867 N.E.2d 606, 618 (Ind. Ct. App.
2007).
[5] “A trial court abuses its discretion in ordering restitution only if no evidence or
reasonable inferences therefrom support the trial court’s decision.” Postiglione v.
State, 84 N.E.3d 659, 664 (Ind. Ct. App. 2017) (internal quotations omitted),
trans. denied. We will affirm the trial court’s order if there is sufficient evidence
to support its decision. Rich, 890 N.E.2d 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.” J.H. v.
State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal quotation omitted).
II. Restitution Order [6] A trial court “enjoys wide latitude in fashioning the terms of a defendant’s
probation” and we will only set aside the terms of probation where a trial court
has abused its discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A
restitution order lies within this discretion. Id. “[T]he principal purpose of
restitution is to vindicate the rights of society and to impress upon the defendant
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 4 of 9 the magnitude of the loss the crime has caused[;] restitution also serves to
compensate the victim.” Iltzsch v. State, 981 N.E.2d 55, 56 (Ind. 2013).
[7] Indiana Code section 35-50-5-3(a) provides, in pertinent part:
[I]n addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime[.] The court shall base its restitution order upon a consideration of:
***
(2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;
(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime[.]
[8] “Restitution must reflect the actual medical costs incurred by the victim and
may not include recovery for duplicated medical charges, such as those covered
by insurance.” Akins v. State, 39 N.E.3d 410, 413 (Ind. Ct. App. 2015). A
victim’s in court testimony may be sufficient to support a restitution order. Blixt
v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 12 2019, 9:56 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. Blackford County Public Defender Attorney General of Indiana Marion, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Holiday, March 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2014 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable John N. Barry, Appellee-Plaintiff. Judge Trial Court Cause No. 05D01-1712-CM-339
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 1 of 9 Case Summary and Issue [1] Following a bench trial, Thomas Holiday was found guilty of battery resulting
in bodily injury, a Class A misdemeanor. The trial court sentenced Holiday to
one year of probation and ordered him to pay restitution in the amount of
$1,295.44. This case presents the sole issue of whether the trial court abused its
discretion in ordering Holiday to pay $1,295.44 in restitution. Concluding the
trial court abused its discretion, we reverse the restitution order and remand for
a new restitution hearing.
Facts and Procedural History [2] Nicole Lugar and Holiday were in an on and off romantic relationship and
shared a son together. The two had been living together at Lugar’s apartment,
but were experiencing relationship problems. Lugar asked Holiday to move out
on November 8, 2017. Holiday packed his belongings and left. On the
morning of November 9, Lugar and Bruce Hall1 awoke to find Holiday
standing at the end of their bed “[d]istraught, upset, [and] mad[.]” Transcript,
Volume I at 8. As Hall tried to get out of bed, Holiday “clenched his fists” and
walked toward Hall. Id. Holiday grabbed Hall and as Hall attempted to push
Holiday, he fell onto the bedside table and hit his head, causing him to lose
1 Holiday testified that, one month prior to the incident, Lugar and Hall had been in a relationship “for a week.” Transcript, Volume I at 37. Lugar and Hall were dating at the time of the incident and were engaged by the trial date.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 2 of 9 consciousness. When Hall regained consciousness, Holiday was on top of him,
punching him. At some point, Holiday stuck his finger in Hall’s eye. See id. at
9. As a result, the side of Hall’s face was bruised and he suffered a “softball
size[d]” area of internal bleeding on his leg, which prompted him to go to the
hospital. Id. at 10.
[3] On December 7, the State charged Holiday with a single count of battery
resulting in bodily injury, a Class A misdemeanor. A bench trial was held on
July 20, 2018, and the trial court found Holiday guilty as charged. Hall
requested restitution in the amount of $1,295.44, which included medical
expenses and lost wages. At the bench trial, Hall testified that he was
uninsured at the time of the incident and received a cash discount from the
hospital. He also testified that due to his injuries, he took a few days off work,
where he earned $14 or $15 per hour. The trial court sentenced Holiday to one
year, with all time being suspended to formal supervised probation and ordered
him to pay $1,295.44 in restitution to Hall as a condition of probation. Holiday
objected to the restitution amount at trial and now appeals the trial court’s
restitution order.
Discussion and Decision I. Standard of Review [4] A restitution order must be supported by sufficient evidence of actual loss
sustained by the victim of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.
App. 2008), trans. denied. “The harm or loss must come as a direct and Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 3 of 9 immediate result of the criminal acts of a defendant.” Id. at 51 (internal
quotation omitted). The amount of actual loss is a factual matter determined
only by the presentation of evidence and we will reverse a restitution order only
for an abuse of discretion. Id. at 49. An abuse of discretion occurs if the trial
court’s decision is clearly against the logic and effects of the facts and
circumstances before it. Long v. State, 867 N.E.2d 606, 618 (Ind. Ct. App.
2007).
[5] “A trial court abuses its discretion in ordering restitution only if no evidence or
reasonable inferences therefrom support the trial court’s decision.” Postiglione v.
State, 84 N.E.3d 659, 664 (Ind. Ct. App. 2017) (internal quotations omitted),
trans. denied. We will affirm the trial court’s order if there is sufficient evidence
to support its decision. Rich, 890 N.E.2d 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.” J.H. v.
State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal quotation omitted).
II. Restitution Order [6] A trial court “enjoys wide latitude in fashioning the terms of a defendant’s
probation” and we will only set aside the terms of probation where a trial court
has abused its discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A
restitution order lies within this discretion. Id. “[T]he principal purpose of
restitution is to vindicate the rights of society and to impress upon the defendant
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 4 of 9 the magnitude of the loss the crime has caused[;] restitution also serves to
compensate the victim.” Iltzsch v. State, 981 N.E.2d 55, 56 (Ind. 2013).
[7] Indiana Code section 35-50-5-3(a) provides, in pertinent part:
[I]n addition to any sentence imposed under this article for a felony or misdemeanor, the court may, as a condition of probation or without placing the person on probation, order the person to make restitution to the victim of the crime[.] The court shall base its restitution order upon a consideration of:
***
(2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;
(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime[.]
[8] “Restitution must reflect the actual medical costs incurred by the victim and
may not include recovery for duplicated medical charges, such as those covered
by insurance.” Akins v. State, 39 N.E.3d 410, 413 (Ind. Ct. App. 2015). A
victim’s in court testimony may be sufficient to support a restitution order. Blixt
v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007) (holding that testimony by
a victim’s mother as to the amount of out of pocket medical expenses paid was
sufficient to support the trial court’s restitution order).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 5 of 9 [9] Holiday argues “[t]here was no clear evidence presented at the sentencing
hearing” from which the trial court “could have made a fair restitution
determination” and suggests this could lead to overcompensating Hall in
violation of the restitution statute. Brief of Appellant at 7. Holiday, therefore,
requests that we remand this case to the trial court to determine an appropriate
restitution amount.
[10] At sentencing, the State called Hall to testify regarding restitution and after
establishing that he had to go to the hospital as a result of the incident and had
medical expenses, Hall testified:
[State]: Okay. Does insurance cover most or all of that?
[Hall]: I think, I didn’t have insurance, but when I went to the hospital, I think they gave me, since I was going to be a cash paying person, they gave me some type of discount, so the amount that I wrote on there was the final amount after they deducted like, cash discount.
[State]: Okay. So I’m showing that you submitted a claim of $1,295.44?
[Hall]: Correct.
[State]: Alright. And all of those expenses were a result of the events of November 9th?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 6 of 9 [Hall]: Correct.
[State]: Have you had any other out of pocket expenses because of that?
[Hall]: No.
[State]: Okay. So $1,295.44 is the amount?
[Hall]: I ended up having to take a, I think a few days off from work, which I put that in there as well because of incident, so between the medical expenses and missing the time I had to take off from work, that was the total amount.
[Court]: Is that reflective in the $1,295.[44 ?]
[Hall]: Yes, sir.
[Court]: Your missed time from work?
[Defense]: You indicated that you were working at the time?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 7 of 9 [Hal]: Correct.
[Defense]: Who was your boss?
[Hall]: It’s called, A Better Power Washing Services. He’s [sic] name is Gerald Mason.
[Defense]: How much were you making an hour, Sir?
[Hall]: It was roughly like fourteen or fifteen dollars an hour. Actually I put a copy of a form that he filled out or typed out . . . .
Tr., Vol. 1 at 46-48.
[11] Here, the only evidence supporting the trial court’s restitution order was Hall’s
testimony at trial. Hall testified that he has incurred $1,295.44 in medical
expenses and lost wages as a result of Holiday’s crime. He testified that he was
uninsured when he went to the hospital, received a cash discount, and took a
few days off from work where he earned $14 or $15 per hour. Although this
court has held that a victim’s testimony may be sufficient to support a
restitution order, Blixt, 872 N.E.2d at 153-54, we cannot say Hall’s testimony is
sufficient because it is unclear exactly how many days he took off from work,
the total amount of his hospital bill, the discount he received from the hospital,
and how much he owed the hospital after the discount. Thus, Hall’s testimony
failed to provide the trial court a “reasonable basis” for estimating his actual
loss and subjected it to “mere speculation or conjecture[,]” particularly with
respect to his lost wages. J.H., 950 N.E.2d at 734. With respect to restitution, Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 8 of 9 our supreme court has explained that “precedent supports remanding for
additional evidence when appropriate.” Iltzsch, 981 N.E.2d at 57. In light of
our supreme court’s decision in Iltzsch, we reverse the trial court’s restitution
order and remand for a new restitution hearing to allow the presentation of
additional evidence supporting Hall’s request for restitution in the amount of
$1,295.44.2
Conclusion [12] Because the evidence in the record is insufficient to support the trial court’s
restitution order, we conclude the trial court abused its discretion in ordering
Holiday to pay Hall $1,295.44 and remand for a new restitution hearing
permitting the presentation of additional evidence of Hall’s actual loss.
[13] Reversed and remanded.
Riley, J., and Kirsch, J., concur.
2 In his brief, Holiday states that “at the date of sentencing [Hall] had paid no out of pocket expense[,]” subtly hinting that the outstanding nature of the medical expenses is problematic. Br. of Appellant at 7. Any potential argument with respect to the outstanding nature of Hall’s medical expenses stops there and is waived. See Ind. Appellate Rule 46(A)(8)(a). On remand, the trial court should determine whether Hall’s medical expenses were incurred before the date of sentencing as a result of Holiday’s crime pursuant to Indiana Code section 35-50-5-3(a)(2).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019 Page 9 of 9