                                                                          Jul 31 2015, 9:18 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                         Gregory F. Zoeller
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kent Akins,                                                July 31, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1412-CR-869
              v.                                                 Appeal from the Marion Superior
                                                                 Court.
                                                                 The Honorable Annie Christ-Garcia,
      State of Indiana,                                          Judge.
      Appellee-Plaintiff.                                        Cause No. 49F24-1312-FD-79414




      Darden, Senior Judge


                                       Statement of the Case
[1]   Kent Akins appeals the trial court’s order requiring him to pay restitution to the

      City of Indianapolis. We reverse and remand for an evidentiary hearing.




      Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015                    Page 1 of 7
                                                       Issue
[2]   Akins raises one issue, which we restate as: whether the trial court abused its

      discretion in ordering Akins to pay restitution.


                                Facts and Procedural History
[3]   On December 15, 2013, Akins struggled with police officers outside of a bar in

      Indianapolis and was arrested. The State charged Akins with battery on a law

      enforcement officer resulting in injury, a Class D felony. Ind. Code § 35-42-2-1

      (2012). The charging information states:

                On or about Dec [sic] 15, 2013, in Marion County, State of
                Indiana, the following named defendant Kent Akins, did
                knowingly touch, Tyler Watson, a law enforcement officer with
                the Indianapolis Metropolitan Police Department, in a rude,
                insolent, or angry manner, to wit: punched Officer Watson while
                said officer was engaged in the execution of his official duty, and
                further that said touching resulted in an injury, to wit: pain
                and/or swelling and/or bruising to said officer.
      Appellant’s App. p. 15.


[4]   The State also charged Akins with resisting law enforcement, a Class A

      misdemeanor. Ind. Code § 35-44.1-3-1 (2013). The charging information

      states:


                On or about Dec [sic] 15, 2013, in Marion County, State of
                Indiana, the following named defendant Kent Akins, did
                knowingly and forcibly resist, obstruct, or interfere with Antwon
                Keyes, a law enforcement officer with the Indianapolis
                Metropolitan Police Department, while said officer was lawfully


      Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015       Page 2 of 7
              engaged in the execution of his duties as a law enforcement
              officer.
      Appellant’s App. p. 16.


[5]   Akins and the State entered into a plea agreement. Akins agreed to plead guilty

      as charged. The parties agreed that his aggregate sentence would be limited to

      545 days, with credit for two days served and the rest of the term suspended to

      probation. Akins also agreed as a condition of probation to pay restitution to

      the “City of Indianapolis” in an amount to be set by the court. Id. at 24.


[6]   At the sentencing hearing, the trial court accepted the plea agreement and

      imposed the agreed-upon sentence. During the hearing, Akins requested a

      separate hearing on restitution. He advised the court:

              Well judge, the issue is we recently learned, recently last week
              that this officer has a broken leg. No mention of it in the
              probable cause affidavit. We’ve not seen any documentation to
              that effect so that’s something that I need to look at and
              determine if insurance paid any part of it or just what, I guess,
              the injuries he sustained and if it matches up with uh, medical.
              So that’s the purpose of the hearing.
      Tr. p. 7.


[7]   The State responded that one of the officers involved in the incident with Akins

      did break his leg during the incident and was undergoing treatment. Akins

      further stated:

              Those are some of the issues I need to look into, if there were, are
              any um, monies or things covered by insurance or just the
              county, I don’t know yet and so we want to make sure that

      Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015     Page 3 of 7
               whatever the restitution is isn’t, I don’t know, double dipping, I
               don’t know.
      Id. at 8. The court scheduled a hearing on restitution.


[8]   At the restitution hearing, the State did not present any witnesses. Instead, the

      State merely tendered to the court medical records and bills for Officer Antwon

      Keyes, which indicated that he had experienced a leg injury on December 15,
                                                                                                   1
      2013, while struggling with an unidentified “suspect” or “person.” Medical

      Records pp. 42, 56. The State requested $27,966.71 in restitution arising from

      Officer Keyes’ injury. Akins argued that the State’s request for restitution was

      inappropriate because there was no evidence to support the allegations that he

      caused Officer Keyes’ injury and the increasing medical expenses and bills.

      Without more, the court ordered Akins to pay restitution in the amount of

      $27,966.71 and entered a civil judgment against Akins. This appeal followed.


                                      Discussion and Decision
[9]   Akins claims the trial court erred in ordering him to pay $27,966.71 in

      restitution to the City of Indianapolis because there is no evidence that he

      caused Officer Keyes’ injury. The State “does not oppose remand for a new

      restitution hearing” because it agrees that there is no evidence to support the

      order. Appellee’s Br. p. 4.




      1
       The records and bills were not formally offered as exhibits by the State or accepted as evidence by the trial
      court. The State did not present any witnesses to authenticate the documents. Neither party alleges error
      arising from the failure to formally admit the records and bills as evidence.

      Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015                             Page 4 of 7
[10]   When imposing a sentence for a felony or a misdemeanor, a trial court may, as

       a condition of probation or without placing the defendant on probation, order

       the defendant to make restitution to the victim of a crime. Ind. Code § 35-50-5-

       3(a) (2012). Among other considerations, the trial court may base its restitution

       order upon “medical and hospital costs incurred by the victim (before the date

       of sentencing) as a result of the crime.” Id.


[11]   The primary purpose of restitution is to vindicate the rights of society and to

       impress upon the defendant the magnitude of the loss the crime has caused.

       Gonzalez v. State, 3 N.E.3d 27, 29 (Ind. Ct. App. 2014). Restitution also serves

       to compensate the defendant’s victim. Id. Under certain circumstances, a state

       entity may be considered a victim for purposes of restitution. Id. Among other

       circumstances, a state entity may be considered a victim when the entity

       becomes a surrogate by assuming the costs of the victim’s medical care,

       treatment, and lost wages. Id. at 30.


[12]   An order of restitution lies within the trial court’s discretion and will be

       reversed only where there has been an abuse of discretion. Hill v. State, 25

       N.E.3d 1280, 1282 (Ind. Ct. App. 2015). A trial court abuses its discretion

       when its decision is clearly against the logic and effect of the facts and

       circumstances or when the trial court has misinterpreted the law. Id.


[13]   In this case, the State correctly concedes that there is no evidence in the record

       that Akins caused Officer Keyes’ leg injury. Indeed, there is no evidence that

       Officer Keyes’ injury occurred in connection with Akins’ arrest. Akins pleaded


       Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015        Page 5 of 7
       guilty to battering and injuring Officer Watson, not Officer Keyes. Further, the

       State charged Akins with resisting law enforcement as a Class A misdemeanor,

       which does not require proof of injury. At the time Akins committed his

       crimes, the offense of resisting law enforcement was a Class D felony where a

       person was injured in the course of the defendant’s resistance. Ind. Code § 35-

       44.1-3-1(b). Finally, the medical records that the State submitted at the

       restitution hearing refer to a “person” or “suspect” as causing Officer Keyes’

       injury without providing a name. Medical Records pp. 42, 56.


[14]   Under these circumstances, the trial court’s restitution award was against the

       logic and effects of the facts and circumstances, and we must reverse. See Ind.

       Code § 35-50-5-3(a) (stating that medical expenses may be the subject of a

       restitution order when they are “a result of the crime”); Smith v. State, 471

       N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984) (reversing award of restitution for

       medical expenses where the State failed to present evidence that the victim

       incurred the expenses as a result of the defendant’s criminal misconduct), trans.

       denied.


[15]   We remand for an evidentiary hearing on restitution. See Bennett v. State, 862

       N.E.2d 1281, 1286 (Ind. Ct. App. 2007) (“The amount of actual loss is a factual

       matter that can be determined only upon the presentation of evidence”). At the

       hearing, the State must prove that Officer Keyes’ injury resulted from Akins’

       criminal behavior. Restitution must reflect actual medical costs incurred by the

       victim and may not include recovery for duplicated medical charges, such as

       those covered by insurance. See Little v. State, 839 N.E.2d 807, 810 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 49A02-1412-CR-869 | July 31, 2015     Page 6 of 7
       App. 2005) (reversing in part an award of restitution for medical costs because

       some of the costs were covered by insurance, resulting in a double recovery by

       the victim). Akins must be given an opportunity to test the State’s evidence and

       submit his own.


                                                  Conclusion
[16]   For the foregoing reasons, we reverse the judgment of the trial court and

       remand for further proceedings not inconsistent with this opinion.


[17]   Reversed and remanded.

       Vaidik, C.J., and Bailey, J., concur.




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