Restitution Reversal

State v. Charbonneau, 2016 VT 83

By Elizabeth Kruska

Sometimes criminal cases involve a loss to another person. That person—the victim of the crime—is entitled to be made whole. If the defendant is convicted of a crime where there was a loss, the defendant has to make restitution to the victim. This could take a couple forms. Suppose someone breaks into my house and steals my favorite painting. If the painting is recovered and returned to me, I’ve been made whole. If the painting cannot be found or returned for whatever reason, the defendant has to pay me the value of the painting.

That’s sort of what happened here. Toby Charbonneau was charged with possession of stolen property. There was also a co-defendant, who is mentioned in a footnote, but who is not a part of this appeal. She’s important in the long run, though, because of what happened at her restitution hearing.

The victims in this case are homeowners in Franklin County. They discovered that their home had been burgled and that they had considerable losses. The opinion doesn’t give a lot of details about this, but I suspect they were away over a weekend and came home to this situation. They figured out their loss was in the neighborhood of $52,000, and made insurance claims. Their insurance paid out a portion of the loss, leaving a balance of about $31,000. That means whoever is responsible for the loss is on the hook for restitution of $31,000.

The homeowners discovered some of their stolen belongings on a local “Buy, Sell, or Trade” Facebook site. They contacted the police, who investigated, got a warrant for Mr. Charbonneau’s house, and recovered a bunch of the victims’ belongings. Apparently it wasn’t everything stolen in the burglary, as the total value of the recovered items was around $6700. Those things were returned to the victims.

The police also recovered a pair of sneakers from Mr. Charbonneau’s house, because they figured out there was a tread pattern from those shoes that matched a shoe print near the victims’ house. But, Mr. Charbonneau and the co-defendant were never charged with burglary, only with possession of stolen property.

Mr. Charbonneau pled guilty to the charge. The State sought a restitution hearing on behalf of the victims. The State claimed the victims were entitled to payment for the full value of their uninsured losses relative to the burglary. The co-defendant also had a restitution hearing, and after the court took evidence, was determined not to have to pay any restitution because the recovered items were returned to the victims. However, the trial court went a step further in Mr. Charbonneau’s hearing and ordered that he pay the full amount of the uninsured losses relative to the burglary. The court ordered that Mr. Charbonneau pay around $35,000.

Mr. Charbonneau appealed on several grounds, but SCOV only tackles one, and reverses on that ground. Because the trial court ordered restitution relative to a crime for which Mr. Charbonneau had not been convicted, the case has to be remanded.

In Vermont, restitution in criminal cases is pretty narrow. It’s not meant to provide a victim a windfall, and it’s not meant to compensate someone for losses that aren’t concrete and provable. And a restitution order must be causally linked to the crime for which someone has been convicted. So, in my example above about someone stealing my painting, if I get my painting back, I’m considered whole in the eyes of the law. But because I’m a human being with feelings, I am likely to be upset by the situation. I might get my locks changed so this doesn’t happen again. I might feel like I should get more reimbursement for my upset and for my new locks. SCOV has been pretty clear on this over the years—nope, that sort of thing isn’t reimbursable under the criminal-restitution statute.

The other thing SCOV is clear about is that the restitution has to be tied to the actual crime for which someone was convicted. Of course, a defendant may agree to pay restitution on a charge that gets dismissed or amended as a part of an agreement; this happens all the time. But if there is no agreement, the State has to prove causation between the crime and the loss.

Here, Mr. Charbonneau was convicted only of possession of stolen property, not of the underlying burglary. There was some testimony at the restitution hearing by the victim that she had seen Mr. Charbonneau near her home in the week prior to the burglary, and there was also evidence about the seized shoe and matching print near the house. The trial court ordered that Mr. Charbonneau had to pay restitution of $35,000 to cover the whole loss from the burglary.

SCOV says nope. First of all, Mr. Charbonneau was convicted only of possession of stolen property, not of burglary. He did agree in his plea colloquy that he was in possession of the victims’ items, even though those items weren’t specifically listed. However, based on the evidence, it could really only be shown that he had certain things, and not all of them. Just because he had some of the things doesn’t mean he burgled the house and ever had all of the things.

The State has to prove a victim’s material uninsured loss in a restitution hearing. Here, the victims’ overall loss was about $52,000. They got some reimbursement from their insurance companies, which left a balance of around $31,000. There’s a mathematical error in the opinion—SCOV overlooks that because it isn’t entirely relevant in the long run anyway. In any case, even if Mr. Charbonneau had been convicted of the burglary, some of the items were returned, which would have brought down the amount Mr. Charbonneau would have to pay. But since the only thing he was found guilty of was the possession of stolen property, and the property tied to Mr. Charbonneau got returned, he shouldn’t have to pay anything.

SCOV reverses and vacates the restitution order.