State v. Tetrault, 2012 VT 51 (mem.).
This is a straightforward little ditty in which the SCOV refuses to second guess the trial court or penalize a victim in a restitution case for his modest shopping habits.
Defendant in this case broke into victim’s camp and set up home. Using the available supplies, Defendant wrecked the place. When the state police caught up with him, several of the victim’s appliances were down for the count, and the camp was quite a bit worse for the wear as Defendant, his dogs, and others had trashed the place.
The State initially charged Defendant with a slew of felonies, but Defendant eventually pled down to a single charge of unlawful trespass with a suspended sentence and a restitution hearing.
At the hearing, victim testified about the damage done and the replacement value of each item that Defendant had paid. Victim had replaced just about all of the appliances, sheets, pots, and rugs in the camp along with a mattress. Victim, though had done all his shopping at Wal-Mart, and the final bill was fairly low. The trial court ordered restitution for all items. Defendant appealed from this decision.
Defendant makes three arguments on appeal. The SCOV sets them up and knocks them down in quick order.
First, Defendant took the items that he actually destroyed and argued that he should not have to pay their full replacement value. Defendant’s arguments will be familiar to anyone who has negotiated with an insurance adjuster. He argued that Defendant’s items (mainly a microwave and a toaster) were old and used and that Defendant replaced them with new items. Defendant argues that he should only be responsible for their actual value as used items—presumably based on what they would have fetched at a garage sale.
Pettifoggery! Exclaims the SCOV who had been waiting all term to use that word. Restitution is about restoring items that were lost to the victim. Items such as microwaves or toasters do not have a “bluebook” actual value. Their value is what they cost to replace. Arguing that the victim should have gone to garage-sales and priced out a “used” microwave is a petty and disreputable position. Victim went to Wal-Mart bought a cheap replacement, and that is all he had to do.
For his second argument, Defendant argued that victim was not entitled to claim restitution for the various rugs, sheets, pots, pans, and dishes that Defendant and company soiled while squatting in the camp. Defendant is essentially saying: What’s wrong with a little Tide and a few rinse cycles? Let that pan soak. It will come off.
The SCOV, which has clearly had to deal with a baked on mess or two in its time, closes this line of argument down. Defendant and company used these items, and while they are not destroyed, they are damaged and despoiled. Just as shinning a black-light in a motel room can lead to a loss of faith, here the mere idea that Defendants used and abused these items is enough to justify the trial court’s award of damages. Again, victim replaced the items on the cheap, and the SCOV is not going to deny the man the right to purchase new sheets and not have to lie awake in the old ones pondering just exactly what Defendant did to them.
Defendant’s final argument is deemed waived by the SCOV because it was not raised at the initial hearing. Nevertheless, the SCOV addresses it briefly and rejects it on its merits as well.
Basically, Defendant argues that the “unlawful trespass” charge that he pled is not directly related to the damage that he did, and that the restitution was improperly ordered.
Vermont law allows the State to seek restitution on behalf of victims from criminal defendants for losses suffered as a direct result of the conduct for which the defendants are convicted. Here Defendant argued that because unlawful trespass was simply the illegal entry into the camp and not the ensuing mischief, the damages were not a direct result.
The SCOV denies this argument and rests its conclusion on two points. First is the standard of review. The trial court had broad discretion to make a restitution award. Therefore, the SCOV is only going to look at the issue for an abuse of discretion. To succeed under this standard, Defendant would have had to go all the way and prove that there was no reasonable connection between the crime of unlawful trespass and the damages that victim suffered.
Second, it is not difficult to connect the victim’s damages with Defendant’s actions. It is not as if the trespass was unrelated or removed in time or space from the mischief that destroyed the property. The trespass was the first act of the play and the destruction followed before intermission.
While the SCOV does not make a categorical determination about what damages can follow from unlawful trespass. It has no problem affirming the award here as just, reasonable, and connected.
Defendant strikes out, and proves that even when you squat in an apartment, you never get the damage retainer back.