2014 VT 84


State v. Morse (2013-045)
 
2014 VT 84
 
[Filed 25-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 84

 

No. 2013-045

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington
  Unit,


 


Criminal Division


 


 


Phillip Morse


March Term, 2014


 


 


 


 


Cortland
  Corsones, J.


 

Alexander Burke, Bennington County Deputy State’s Attorney,
Bennington, for 
  Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Joshua S. O’Hara,
Appellate Defender, Montpelier,
  for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.
 
 
¶ 1.            
REIBER, C.J.   Defendant appeals a restitution order
requiring him to pay $2,427.36 for damage to a car.  On appeal, defendant
argues that (1) the State failed to meet its burden of demonstrating that the
victim’s loss was uninsured; (2) the court failed to make a specific finding
that the damage was uninsured; (3) the court erred in admitting and using a
repair estimate because it was hearsay; and (4) the court erred in calculating
the amount of restitution by using the cost of repair rather than the
difference in fair market value before and after the accident.  We affirm.
¶ 2.            
The charges in this case stem from an incident in October 2012 between
defendant and his ex-girlfriend.  The ex-girlfriend was driving her
mother’s car when defendant followed her, passed her, and then stopped in the
middle of the roadway.  When the ex-girlfriend tried to pass, defendant
swerved his truck, damaging the car’s right side.  Defendant was charged
with aggravated domestic assault, aggravated stalking, negligent operation of a
vehicle and reckless endangerment.  In November 2012, defendant pleaded
guilty to grossly negligent operation and reckless endangerment, and the State
dismissed the other charges.  Defendant was sentenced to two-to-five
years.  
¶ 3.            
The State requested restitution.  The ex-girlfriend testified at
the restitution hearing.  She explained that she was driving her mother’s
green car when defendant crashed his red truck into the car, causing damage to
the front and back passenger doors.  She described that there were
scratches up and down the side of the door, the back door was dented in and
there was red paint on the side of the car.  She also testified that none of
the damage was present before defendant’s truck hit the car.  She
testified that she had no automobile insurance.  
¶ 4.            
The car owner, the ex-girlfriend’s mother, also testified.  She
explained that she obtained an estimate for the repairs.  Defense counsel
questioned the car owner about the estimate during voir dire, and she admitted
that she knew little about vehicles and could not elaborate on the meaning of
particular items in the estimate.  Defendant moved to exclude the estimate
as hearsay.  Upon further questioning by the State, the witness clarified
that there was no other damage to her vehicle prior to October 2012, and the
estimate was to repair damage caused by the October 2012 collision.  The
court admitted the estimate in conjunction with the owner’s testimony. 
The car owner also testified that she did not have collision insurance. 
She explained that she had tried to get information from the State’s Attorney
about defendant’s insurance, but did not receive a response to her request. 

¶ 5.            
Defendant’s cousin, who is a friend of the ex-girlfriend, testified for
defendant.  She stated that there were dents in the car prior to the
October 2012 accident.  She also testified that she did not notice
additional damage after the accident.  
¶ 6.            
The court made findings on the record.  The court found that the
State had met its burden of showing that defendant crashed his truck into the
vehicle driven by his ex-girlfriend and caused substantial damage to the car’s
right side.  The court found credible the car owner’s testimony that there
was not any significant damage prior to the accident.  The court also
found that the estimate represented a fair and reasonable amount to repair the
damage caused by the accident.  The court issued a written form order,
finding: “The victim incurred an uninsured material loss in the total amount of
$2427.36.”  Defendant timely appealed.
¶ 7.            
The purpose of the restitution statute is to compensate the victim for
his or her “material loss,” 13 V.S.A. § 7043(a), which is defined as an
“uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost
wages, and uninsured medical expenses.”  Id.
§ 7043(a)(2).  The State has the burden of proving “that a loss
attributable to a crime victim is uninsured.”  State v. Hughes,
2010 VT 72, ¶ 11, 188 Vt. 595, 5 A.3d 926 (mem.).  The standard of
proof is a preponderance of the evidence.  State v. VanDusen, 166
Vt. 240, 245, 691 A.2d 1053, 1055 (1997).
¶ 8.            
On appeal, defendant first argues that the State failed to meet its
burden of proving that the damage was not insured.  Although the State
introduced testimony from the car owner that her insurance did not cover the
damage and that she did not receive any information in response to her
inquiries regarding defendant’s insurance, defendant contends that the State
failed to meet its burden of proving that defendant lacked insurance to cover
the damage.  
¶ 9.            
We conclude that the State’s failure to affirmatively demonstrate that
defendant lacked insurance does not require reversal because
defendant has not demonstrated or even alleged that the victim’s loss was
covered by his insurance, and therefore that, if such an inquiry had been made
at the restitution hearing, the result would have been different.  See United
States v. Zangari, 677 F.3d 86, 96 (2d Cir. 2012) (holding that there was
no unfair prejudicial impact where defendant did not show that restitution
would have been less if error had not occurred).  If, in fact, defendant
has insurance coverage, he will not suffer any prejudice because any payment
from his insurer will operate as a credit against his restitution obligation.[1]  Therefore, any error was
harmless.  See V.R.Cr.P. 52(a) (“Any error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.”).
¶ 10.        
Relatedly, defendant argues that the court failed to make a specific
finding that the damage was uninsured.  Defendant focuses on the court’s
on-the-record findings made at the conclusion of the restitution hearing, which
did not mention insurance.  However, in addition to those findings, the
court issued a written form restitution order.  On that order, the court
checked the box, finding specifically that “[t]he victim incurred an uninsured
material loss.”  Defendant claims that this finding in the written order
is not sufficient because it conflicts with the court’s earlier oral
findings.  That the court did not mention insurance in its oral findings
does not conflict with its subsequent written finding that the victim suffered
an uninsured loss.  The finding on the written order was sufficient to
demonstrate that the court found the loss was uninsured.  See Hanson-Metayer
v. Hanson-Metayer, 2013 VT 29, ¶¶ 45-46, 193 Vt. 490, 70 A.3d 1036
(holding that written findings control).
¶ 11.        
Next, defendant contends that the court erred in admitting and using a
repair estimate because it was hearsay.  At trial, the car owner testified
concerning the cost of repairs to her vehicle, and the State sought to admit an
estimate of the repair cost.  Defendant objected that there was an
insufficient basis to admit the document and, following a voir dire, the court
admitted the repair estimate in conjunction with the victim’s testimony. 
On appeal, defendant contends that the estimate was hearsay and admission was
error.  
¶ 12.        
Hearsay is a statement made by someone not testifying at trial “offered
in evidence to prove the truth of the matter asserted.”  V.R.E. 801(c).  Hearsay is not admissible unless it fits within an
exception.  V.R.E. 802.  The court’s evidentiary rulings are reviewed
for an abuse of discretion.  See State v. Burke, 2012 VT 50, ¶ 23,
192 Vt. 99, 54 A.3d 500.   
¶ 13.        
We agree that the estimate was hearsay since the author of the estimate
did not testify at trial, and it was introduced to prove the truth of the car
owner’s claim for damages.[2] 
See Towle v. St. Albans Publ’g Co., 122 Vt. 134, 139, 165 A.2d 363, 366
(1960) (holding that it was error to admit letter where author did not testify
and contents were used to support damage award).  Nonetheless, we conclude
there was no error in admitting the estimate because the Rules of Evidence do
not apply in restitution proceedings.  
¶ 14.        
Under Vermont Rule of Evidence 1101(b)(3), the rules of evidence are not
applicable in sentencing proceedings.  Restitution is part of sentencing,
and thus employs rules that “are less formal than in the criminal trial.”
 VanDusen, 166 Vt. at 245, 691 A.2d at 1055.  Further, there
is no constitutional bar to admission of hearsay at restitution.  “A
sentencing hearing is not a guilt-determining proceeding.  Therefore, the
Confrontation Clause does not prohibit the introduction of hearsay
testimony.”  State v. Gallagher, 150 Vt. 341, 350, 554 A.2d 221,
226-27 (1988).  
¶ 15.        
This conclusion is supported by both federal and state cases. 
Vermont Rule 1101 employs similar language to the parallel federal rule, which
also states that the rules of evidence do not apply to “sentencing.”
 F.R.E. 1101(d)(3).  Federal courts interpreting this language have
concluded that because restitution is part of sentencing it is not governed by
the rules of evidence.  See United States v. Gushlak, 728 F.3d 184,
197 n.10 (2d Cir. 2013) (explaining that because rules of evidence do not apply
at sentencing proceedings, admission of expert testimony in restitution cases
is not governed by F.R.E. 702); United States v. Yeung, 672 F.3d 594,
606 (9th Cir. 2012) (holding that federal rules of evidence not applicable to
restitution hearing and no error to admit hearsay) abrogated on other grounds
by Roberts v. United States, 134 S. Ct. 1854, ___ U.S. ___ (2014); United
States v. Sunrhodes, 831 F.2d 1537, 1543 (10th Cir. 1987) (holding that
restitution is part of sentencing and that defendant has no right to
confrontation).
¶ 16.        
Several other state courts have also concluded that the rules of
evidence are not applicable in restitution proceedings and that hearsay may be
admitted to prove a victim’s loss.  See State v. Miller, Nos.
12-1448, 12-1449, 2014 WL 1714970, at *1 (Iowa Ct. App. Apr. 30, 2014) (holding
that rules of evidence not applicable in restitution hearing and estimate may
be admitted to prove damages); Commonwealth v. Casanova, 843 N.E.2d 699,
755-56 (Mass. App. Ct. 2006) (holding that “strict evidentiary rules” do not
apply at restitution hearing and hearsay is admissible if reliable); People
v. Matzke, 842 N.W.2d 557, 559-60 (Mich. Ct. App. 2013) (holding that
restitution is part of sentencing, rules of evidence do not apply and hearsay
may be admitted); State v. Aragon, 2014 MT 89, ¶¶ 12-13, 321 P.3d 841
(holding rules of evidence not applicable at restitution hearing); State v.
Riley, 2009-Ohio-3227, ¶ 28, 920 N.E.2d 388 (Ct. App.) (holding that rules
of evidence are not applicable in restitution hearing and do not bar admission
of hearsay); Sigler v. Commonwealth, 739 S.E.2d 272, 275 (Va. Ct. App.
2013) (reciting rule that court may consider reliable hearsay in determining
amount of restitution); State v. Kisor, 844 P.2d 1038, 1044 (Wash. Ct.
App. 1993) (explaining that rules of evidence do not apply at restitution and
hearsay may be admitted).  But see Conway v. State, 115 So. 3d
1058, 1059 (Fla. Ct. App. 2013) (explaining that hearsay may not be used to
determine amount of restitution when defendant properly objects).  
¶ 17.        
In addition, admission of hearsay documents to prove the amount of a
victim’s loss is supported by the restitution statute.  The statute does
not reference the use of expert witnesses, but instead states that a
restitution hearing may be delayed until there is “sufficient documentation” of
the victim’s material loss.  13 V.S.A. § 7043(d)(1).  Thus, the
statute presumes the use of documents to demonstrate the amount of a victim’s
material loss.
¶ 18.        
Therefore, we hold that in restitution proceedings the rules of evidence
do not apply and hearsay may be admitted.  Any offered hearsay must,
however, meet certain requirements to ensure its reliability.  See Gallagher,
150 Vt. at 350, 554 A.2d at 227 (explaining that in sentencing proceeding hearsay
may be admitted if its use is disclosed sufficiently in advance, defendant has
chance to rebut it, and sentencing court finds it reliable).  While there
are no procedural rules particularly governing the admission of evidence at
restitution hearings, Vermont Rule of Criminal Procedure 32(c)(4)(A) governs
the admission of factual information at sentencing and provides: “Either party
may offer evidence, including hearsay, specifically on any disputed factual
issues in open court with full rights of cross-examination, confrontation, and
representation.”  The rule further explains that if a defendant objects to
factual information, the court may not consider it unless it finds that “the
fact has been shown to be reliable by a preponderance of the evidence,
including reliable hearsay.”  Id.   
¶ 19.        
While the Rule 32 procedure was not followed in this case, the record
provides sufficient information to conclude that the estimate was
admissible.  The court did not make an explicit finding on reliability,
but following voir dire concluded the estimate was admissible in conjunction
with the vehicle owner’s testimony regarding the scope of the estimate.
 The record supports that estimate had sufficient indicia of reliability
and was admissible.  The estimate was detailed, came from a disinterested
party, and, as the trial court explained, was admitted in conjunction with the
car owner’s testimony that it represented the costs of repairing damage that
was caused by the May 2012 collision.  See Bouchard v. Dep’t of Emp’t
& Training, 174 Vt. 588, 590, 816 A.2d 508, 511 (2002) (explaining that
factors to consider in assessing reliability of hearsay are specificity,
detail, consistency of statement, and whether it was made by a disinterested
person).  Further, defendant had the opportunity to cross-examine the car
owner on the values in the estimate, and made no claim that he was not provided
sufficient notice of the estimate in advance of the hearing.  
¶ 20.        
Defendant’s final argument is that the court erred in calculating the
amount of loss by using the cost of repair rather than the difference in the
vehicle’s fair market value before and after the accident.  See State
v. Curtis, 140 Vt. 621, 622, 443 A.2d 454, 455 (1982) (per curiam) (noting
that method for measuring damage to vehicle is difference in fair market value
before and after accident).  Defendant failed to raise this argument at
trial, and, ordinarily, issues not raised are waived on appeal.[3]  See State v. Tetrault, 2012
VT 51, ¶ 9, 192 Vt. 616, 54 A.3d 146 (mem.) (holding that arguments not
presented at restitution hearing are waived).  Defendant acknowledges his
failure to raise the issue, but asserts it is nonetheless reviewable for plain
error.  V.R.Cr.P. 52(b) (“Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the
court.”).
¶ 21.        
Assuming plain-error review applies,[4] defendant has failed to demonstrate that
it entitles him to relief.  Plain error is a high bar; it requires an
error that is obvious, affects substantial rights, results in prejudice to
defendant, and affects the fairness of the judicial proceedings.  See State
v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.  There was no
plain error in measuring damages by using the repair cost insofar as there was
neither a clearly obvious error nor did any error affect defendant’s
substantial rights and cause unfair prejudice.  The statute does not
prescribe a certain method for calculating damages.  While the difference
in fair market value is a reasonable means to assess damages, other measures
are also reasonable.  See Tetrault, 2012 VT 51, ¶¶ 12-13
(holding that using replacement cost of damaged appliances instead of
difference in fair market value was reasonable method for calculating
homeowner’s loss).  
¶ 22.        
Further, even if the difference in fair market value is the correct measure
of damages, defendant fails to meet the plain-error standard because he has not
demonstrated that using the repair cost resulted in unfair prejudice.  Defendant fails to show that a damage
calculation based on the change in value would vary substantially from the
repair cost.  The estimated loss must be calculated to a degree of
reasonable certainty, and the evidence admitted at trial allowed the court to
make such a calculation.  See May, 166 Vt. at 45, 689 A.2d at
1078.  The court’s award was supported by the evidence and did not exceed
the scope of its authority under the restitution statute.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 
 
¶ 23.        
DOOLEY, J., concurring.   Chapter II, § 37 of the
Vermont Constitution provides that “[t]he Supreme Court shall make and
promulgate rules . . . governing practice and procedure in
civil and criminal cases in all courts.”  To implement this responsibility
for criminal cases, the Supreme Court adopted the Vermont Rules of Criminal
Procedure effective October 1, 1973.  V.R.Cr.P. 59(a).  These rules
govern “the procedure in the Criminal Division of the Superior Court in all
criminal proceedings.”  V.R.Cr.P. 1.  As the majority holds,
restitution is part of sentencing, a subject covered by Rule of Criminal
Procedure 32 and not excluded by Rule 54(a)(2).  
¶ 24.        
When the rules were promulgated, the current restitution statute had not
been enacted.  As a result, the sentencing rule did not mention
restitution.  Although the current statute requires that restitution “be
considered in every case” in which a victim has suffered material loss, 13
V.S.A. § 7043(a)(1), Rule 32 does not explicitly provide a procedure
for restitution requests.  The only specific procedure is in the
statute:  “Unless the amount of restitution is agreed to by the parties at
the time of sentencing, the Court shall set the matter for a sentencing
hearing,”[5]
and “[p]rior to the date of the hearing, the prosecuting attorney shall provide
the defendant with a statement of the amount of restitution claimed together
with copies of bills that support the claim for restitution.”[6]  Id. § 7043(c)(1),
(2).  A sentencing hearing was held in this case; there is no record that
the prosecutor provided the statement or copies required by the statute.[7]  Nor did the prosecutor disclose the
witnesses the State would call in the restitution hearing or that hearsay would
be used.[8] 
The defendant did disclose the witness he called.
¶ 25.        
This case is a vivid demonstration of why rules establishing the
procedure for restitution claims are necessary.  The issues in this appeal
should be clearly covered by rule provisions.
¶ 26.        
Both the main issues make the point in different ways.  Defendant’s
first argument here is that the prosecution failed to show that the victim’s
material loss was uninsured, as required for any restitution order, id.
§ 7043(a)(2), because it did not consider what liability insurance
defendant carried.[9] 
Of course, if defendant had effective liability insurance, all he had to do was
disclose it to the victim and the victim could claim compensation, and the
defendant could avoid paying restitution.  If defendant showed he had no
liability insurance, the victim could have pursued uninsured motorist coverage
and again defendant could avoid paying restitution.  It is amazing how, in
circumstances where defendant could very likely avoid any restitution
obligation because some insurance is available, he is here arguing that the
State is responsible for his having to pay restitution.
¶ 27.        
The point is that a disclosure regime where both defendant and the
victim disclose insurance coverage and existing claims is far preferable to
attempting to determine insurance coverage in a contested restitution hearing
with no discovery and no pleadings.
¶ 28.        
There is more to this point.  The arguments assume that determining
the availability of coverage is a relatively simple matter of looking at
policies or the law.  Imagine, however, that defendant’s insurance carrier
denies coverage under a policy exclusion for intentional torts.  While I
use this as a hypothetical, even an occasional sampling of our decisions shows
that insurance coverage disputes are common, and it is not uncommon for
insurers to exclude criminal conduct from their liability coverage.  The
criminal division judge could not determine the coverage question in a
restitution hearing in which the insurance carrier is not a party.  It is
not clear what procedure to employ in a circumstance like this.[10]  Neither the statute nor the
current rules give any guidance.
¶ 29.        
The second main issue also shows the need for procedural
regulation.  I agree with the majority that hearsay evidence is admissible
in a restitution hearing if found reliable.  In fact, Rule 32(c)(4)(A)
specifically provides for use of hearsay in sentencing hearings but regulates
its use.  
  Either party
may offer evidence, including hearsay, specifically on any disputed factual
issues in open court with full rights of cross-examination, confrontation, and
representation.  When a defendant objects to factual information submitted
to the court or otherwise taken into account by the court in connection with
sentencing, the court shall not consider such information unless, after
hearing, the court makes a specific finding as to each fact objected to that
the fact has been shown to be reliable by a preponderance of the evidence,
including reliable hearsay.  If the court does not find the alleged fact
to be reliable, the court shall either make a finding that the allegation is
unreliable or make a determination that no such finding is necessary because
the matter controverted will not be taken into account in sentencing.  A
written record of such findings and determinations shall be appended to and
accompany any copy of the presentence investigation report or other
controverted document thereafter made available by the court to the Department
of Corrections.
 
V.R.Cr.P. 32(c)(4)(A).
 
¶ 30.        
Because evidence used in a restitution proceeding is “Sentencing
Information” governed by Rule 32(c), I conclude that Rule 32(c)(4)(A) applies
to restitution.  It was not followed by the court, but defendant has not
raised this error on appeal to this Court.
¶ 31.        
In any event, Rule 32 should explicitly state that the provisions in
Rule 32(c)(4)(A) apply to restitution hearings.  That will ensure that the
court determines the reliability of the evidence presented.
¶ 32.        
Again, there is a broader point.  A restitution order is
essentially the equivalent of a civil judgment with stronger and broader
enforcement powers.  I do not recommend that we apply the rules of civil
procedure to restitution proceedings.  I do believe, however, that the
essential elements of the civil rules should apply to ensure notice of the
restitution claim, discovery of the evidence being used by defendant and the
victim, and a fair and complete adjudication of the dispute.
¶ 33.        
In summary, I concur fully in the opinion of the majority but hope that
we will recognize from this decision that we are in need of complete and
effective procedural rules for restitution proceedings.  I urge the
Advisory Committee on the Rules of Criminal Procedure to develop a draft of such
rules and present them to us.

 


 


 


 


 


 


 


 


Associate Justice

 
 
¶ 34.        
CRAWFORD, J., dissenting.   I agree fully with the
majority’s holding that the Vermont Rules of Evidence do not apply to
restitution hearings.  I dissent only on the issue of evidence of an
uninsured loss.  
¶ 35.        
In the course of the restitution hearing, the victim testified that her
own car—the subject of the property damage claim—was insured.  Because
uninsured motorist coverage is mandatory in Vermont, subject to a $150
deductible, the evidence was unmistakable that the victim had insurance
coverage available to her that would respond to this loss.  23 V.S.A.
§ 941(a).  Any reluctance she may have had to make use of her own insurance
coverage is irrelevant.  The restitution statute limits the use of funds
held by the Vermont Center for Crime Victim Services to losses for which there
is no coverage.  See 13 V.S.A. § 7043(a)(1)-(2) (stating that
restitution may be awarded to victim that has suffered “a material loss,”
defined as “uninsured property loss, uninsured out-of-pocket
monetary loss, uninsured lost wages, and uninsured medical
expenses” (emphases added)).  Although defendant failed to pursue this
issue either at trial or on appeal, the trial court’s error in ordering
restitution in the face of insurance required by statute meets criteria for
“plain error” and requires a remand on that issue.  See State v.
Simmons, 2011 VT 69, ¶ 12, 190 Vt. 141, 27 A.3d 1065 (explaining that
plain error lies where error is both obvious and results in a miscarriage of
justice if this Court does not recognize it).
¶ 36.        
I am authorized to state that Justice Skoglund joins this dissent.

 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
Per statute, in Vermont, all insurance policies must include coverage for
insurance against uninsured motorists up to $10,000 in property damage, subject
to a $150 deductible.  23 V.S.A. § 941(a).  Therefore, if the car
owner had a Vermont insurance policy and defendant was uninsured, presumably
her policy would cover the loss, and her only out-of-pocket expense would be
the $150 deductible.  Neither side elicited information about uninsured
motorist coverage at the restitution hearing.  In addition, on appeal,
defendant does not argue this as a basis for reversal, and consequently there
is no briefing on the issue.  Therefore, we do not reach the question.


[2] 
Apart from the estimate, the evidence of the amount of damage to the vehicle
consisted of the car owner’s testimony that there was no damage to the car
prior to the accident, and that, in her opinion, the estimate accurately
depicted the cost of repairing the vehicle.  A property owner is competent
to testify about the value of her property.  12 V.S.A. § 1604. 
Here, however, the car owner admitted that she did not know much about vehicles
and she did not know how much the car was worth.  Her valuation of the
damage was based solely on the estimate.  Therefore, her testimony alone
was not sufficient to demonstrate the victim’s estimated loss to a reasonable
degree of certainty.  See State v. May, 166 Vt. 41, 43-44, 689 A.2d
1075, 1077 (1996) (noting that in ascertaining damages, “mathematical certainty
is not required, but there must be a reasonable basis for estimating the
loss”).


[3] 
Before the criminal court, defendant did not challenge the amount of
restitution.  At defendant’s change-of-plea hearing, the State indicated
that it was seeking restitution.  Defendant’s attorney indicated that the
only issue regarding restitution was whether there was contact between the two
vehicles.  Therefore, defendant limited the restitution issues to whether
there was any damage to the car, not the amount of the damage resulting.
 


[4] 
The criminal rules, which include the plain-error standard, V.R.Cr.P. 52(b),
are applicable in all criminal proceedings except as specifically stated. 
V.R.Cr.P. 1, 54 (making rules applicable in all criminal proceedings, and
listing exceptions, which do not include sentencing or restitution).  We
have recognized, however, that restitution “is more akin to a civil judgment
for damages,” Hughes, 2010 VT 72, ¶ 10, and, in civil proceedings,
issues not raised below are waived.  Pope v. Town of Windsor, 140
Vt. 283, 286, 438 A.2d 388, 390 (1981).  We need not, and do not, decide
whether plain-error review may be used to challenge unpreserved errors in a
restitution hearing because, even if such review is available, it does not
entitle defendant to relief in this case.  


[5] 
While § 7043(c)(1) provides as quoted in the text, § 7043(d)(1)
provides for a separate restitution hearing “[i]f sufficient documentation of
the material loss is not available at the time of sentencing.”  The former
provision appears to make the latter superfluous.  
 


[6] 
In addition, the statute provides a procedure for when the defendant attempts
to discover medical and mental health records submitted to the “Victims
Compensation Board.”  13 V.S.A. § 7043(c)(3).
 


[7] 
I am not arguing that the prosecutor violated the statute since the statute
does not require that the prosecutor to file the statement and copies with the
court.  I do believe that the rule should require filing of the statement
and copies.
 


[8] 
I do argue below that the failure to disclose the use of hearsay in advance of
the hearing was a violation of Rule 32.


[9] 
Like the majority and dissenting opinions, I assume a loss is not uninsured
under the statute if defendant has liability insurance that may cover the loss
or if, because the loss arises from a collision of two vehicles, the victim has
uninsured motorist coverage.  I am not sure, however, that the Legislature
understood the complications that could arise from such a definition of
uninsured.


[10] 
The statute, 13 V.S.A. § 7043(h), states that restitution “shall not
preclude a person from pursuing an independent civil action for all claims not
covered by the restitution order.”  It does not require such an action.



