Sunday, August 23, 2015

Restitution Blues

State v. Vezina, 2015 VT 56

By Timothy Fair

The old adage goes, “Crime doesn't pay.” Well, as the petitioner learned here, not only doesn't it pay, it can actually get pretty expensive. As opposed to most appeals, petitioner does not dispute his guilt, or argue that the trial court failed to suppress some critical piece of evidence, nor does he challenge the competency of his attorney, the judge, the jury, or the sweet woman selling coffee on the first floor. Instead, the issue which brings us to the SCOV is cold, hard cash.

On Sept. 20, 2013, Mr. Vezina pled guilty to one count of petit larceny. The charge stemmed from the theft of seven pieces of musical equipment—from an avid collector of rare percussion instruments—the previous year. The plea agreement required, in part, that the defendant pay restitution to the owner of the stolen property. The agreement did not, however, specify the exact amount of restitution to be paid. A few things you need to understand before we go any farther: (a) In Vermont, statutes mandate that restitution be considered whenever a victim of a crime suffers a material loss—material loss is defined as any uninsured out-of-pocket monetary loss (often an insurance deductible), uninsured property loss, uninsured lost wages and uninsured medial expenses; and (b) SCOV case law has established that only easily ascertained and measured amounts are recoverable under the restitution statute. Damages that are not readily ascertainable, such as pain, trauma and emotional trauma are not recoverable as restitution. 

So, what happens when the State and a defendant disagree on the amount of restitution to be paid? A contested hearing!

In the present case, defendant admitted to the theft of six cymbals and one cymbal mount/stand, but claimed that since several of the items were returned to the owner, the amount of restitution owed should be adjusted accordingly. Needless to say, the State (and most likely the owner of the property) disagreed with defendant's analysis. As required by statute, the trial court held a restitution hearing following defendant’s change of plea to determine what precisely was owed.

During the hearing, the State argued that the stolen cymbals were rare collector's items, several of them no longer being manufactured. The State then attempted to introduce evidence of the victim's passion for collecting rare musical equipment and how much the theft of these items had impacted him, but was thwarted by a sustained objection. The defendant, as mentioned above, argued that since he had returned several of the pieces, the court should not award the full purchase value of these items as if they had not been. The defendant also introduced evidence of the current retail cost of one of the stolen cymbals. The defendant’s main argument was that the court should take the diminution in fair market value of the cymbals into account. After hearing the arguments on both sides, the Court calculated the victim's material loss based on the original purchase price of each piece of equipment, with the exception of the one cymbal about which the defendant introduced evidence. The court was persuaded by the defendant's evidence and assigned a slightly lower value than was originally paid for that particular piece. The trial court then issued a restitution order in the amount of $1,251.00, and this appeal followed.

As the basis of his appeal, petitioner argues that the trial court improperly calculated the amount of restitution owed by assigning the original sale price to each item, despite the fact that several pieces were returned and in working order. The petitioner also claims that the trial court erred by basing its restitution order in part on the subjective value of the items to their owner as opposed to the actual material loss suffered. Finally, the petitioner claims that the trial court failed to make a finding that he had the ability to pay restitution prior to issuing the order.

As to the first argument, the SCOV begins by reiterating the premise that the trial court has discretion in determining the amount of restitution orders, and that the standard of proof required is one of reasonable certainty. 

 The SCOV then goes on to examine the particular facts of the case. The Court finds that while some of the pieces were returned, others were not, and in the case of the cymbal stand, several pieces were missing when it was returned. As far as the items which were returned, the Court noted that they were dirty, nicked and dented. In one case, the manufacturer’s logo, which identified the cymbal as a collector's item, had been wiped off. The SCOV upheld the trial court's findings that the cymbals, which were kept in impeccable conditions as part of a large collection prior to the theft, were more likely than not, actually worth more than their original-purchase price at the time they were stolen, and that their primary value lay in the fact that they were part of a collector's set as opposed to their percussive qualities. The Court concludes that this determination, and the resulting decision not to offset the value of the stolen equipment was well within the trial court's discretion.

Petitioner's next argument—that the trial court improperly increased the restitution amount based on the subjective value of the stolen items to the owner—is also shut down by SCOV. In its analysis, the Court points out the fact that the trial court did reduce the value of one piece of equipment based on the defendant's presentation of contemporaneous market-based evidence of current price. The Court also highlights the fact that the trial court sustained the defendant's objection when the State attempted to elicit testimony concerning the owner's passion for his musical instruments. Finally, the SCOV reiterates its earlier point that the primary value of the pieces were not in their functionality, but in their status as collector's items. The trial court's focus was not on the subjective value of the items to their owner, but rather the objective value of the items as collectibles on the open market. This determination was clearly within the trial court's discretion, and the SCOV finds no error in the trial court's calculation of the restitution award.

Petitioner's final argument is that the trial court improperly issued a restitution order without first making a finding on his ability to pay. Interestingly enough, the State actually agrees with the petitioner on this point and requests that the SCOV remand the case in order to make a finding as to ability-to-pay. In a brief analysis, the Court looks at the wording of the restitution statue, which requires that the trial court make a finding as to a defendant's ability to pay prior to issuing an order, but then cuts its analysis short, given the fact that both parties agree on the error. The SCOV remands the case back to the trial court for further proceedings to determine the petitioner's ability to pay, while upholding the amount of restitution to be paid. A small victory, but most likely not the one that petitioner was hoping for.

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