MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Apr 26 2018, 9:03 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jorge G. Carrillo,                                       April 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A05-1710-CR-2413
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally A.
Appellee-Plaintiff.                                      McLaughlin, Judge
                                                         Trial Court Cause No.
                                                         15D02-0703-FD-88



Altice, Judge



Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018               Page 1 of 6
                                             Case Summary
[1]   Jorge Carrillo pled guilty to two counts of theft as Class D felonies. In addition

      to a three-year executed sentence, most of which was suspended to probation,

      the trial court ordered Carrillo to pay restitution in the amount of $10,917.46.

      On appeal, Carrillo argues the trial court abused its discretion in ordering him

      to pay restitution in the amount of $10,917.46.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In 2005, Jorge Carrillo was hired as the manager for a gas station that contained

      a store. June Tucker was the bookkeeper for the store. In September 2006,

      Tucker noticed some discrepancies in the money and inventory of the store and

      began to suspect that an employee was engaged in theft. Tucker examined the

      discrepancies and eventually called the police, on October 5, 2006, when items

      she had documented were found in Carrillo’s vehicle.


[4]   An Indiana State Police trooper responded to Tucker’s call. The trooper spoke

      with Carrillo and asked to look in Carrillo’s vehicle. Multiple items from the

      store were found in the vehicle. Carrillo initially told the trooper that he was

      returning unused inventory to the distributor but later admitted that he had

      taken the items without permission. Carrillo told the trooper that he had taken

      items from the store in the past and would occasionally pay the store for some

      of the items.



      Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 2 of 6
[5]   Carrillo was arrested and charged, on March 27, 2007, with twenty-two counts
                                      1
      of Class D felony theft. On August 29, 2017, Carrillo pled guilty to two counts

      of theft, and the State dismissed the other twenty charges. Under the plea, the

      parties agreed that the amount of restitution would be determined by the trial

      court, and Carrillo agreed that he could be liable for restitution for the

      dismissed counts.


[6]   On September 19, 2017, the trial court held a sentencing hearing and

      pronouncement of restitution. The trial court sentenced Carrillo and ordered

      him to pay $10,917.46 in restitution. Carrillo now appeals. Additional facts

      will be provided as necessary.


                                          Discussion & Decision
[7]   Carrillo argues the trial court abused its discretion in determining the amount

      of restitution he owed Tucker. According to Carrillo, the calculation of the

      restitution amount was “improperly based upon insufficient evidence and

      contradicted evidence in the record.” Appellant’s Brief at 11.


[8]   “[T]he principal 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, and

      that restitution also serves to compensate the victim.” Morgan v. State, 49

      N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State, 981 N.E.2d




      1
       While not entirely clear, it appears from the record that in November 2007, Carrillo failed to appear for a
      court date and absconded. He was rearrested approximately ten years later.

      Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018              Page 3 of 6
       55, 56 (Ind. 2013)). In ordering restitution, a trial court shall consider “property

       damages of the victim incurred as a result of the crime, based on the actual cost

       of repair (or replacement if repair is inappropriate).” Ind. Code § 35-50-5-

       3(a)(1).


[9]    A restitution order must reflect a loss sustained by the victim “as a direct and

       immediate result” of the defendant’s criminal acts. Rich v. State, 890 N.E.2d 44,

       51 (Ind. Ct. App. 2008) (internal quotations marks omitted), trans. denied. The

       amount of actual loss is a factual matter to be determined upon the presentation

       of evidence. Id. at 49. “Evidence supporting a restitution order is sufficient if it

       affords a reasonable basis for estimating loss and does not subject the trier of

       fact to mere speculation or conjecture.” S.G. v. State, 956 N.E.2d 668, 683 (Ind.

       Ct. App. 2011) (citation and internal quotation marks omitted), trans. denied.


[10]   A trial court’s order of restitution is a matter within its sound discretion, and we

       will reverse only upon a showing of an abuse of that discretion. Long v.

       State, 867 N.E.2d 606, 618 (Ind. Ct. App. 2007). An abuse of discretion occurs

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it. Id. In determining whether the trial court abused

       its discretion, we neither reweigh evidence nor judge witness credibility. Mogg

       v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009). We will affirm the trial

       court’s decision if there is any evidence supporting it. Smith v. State, 990 N.E.2d

       517, 520 (Ind. Ct. App. 2013), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 4 of 6
[11]   At the restitution hearing, Tucker testified that she used a computerized

       inventory software system to compile a list of inventory that was taken from the

       store. The list showed the total value of the items stolen by Carrillo to be

       $23,539.65. The State conceded that certain amounts should be deducted from

       Tucker’s list of lost inventory, i.e., $2,500.00 received by the store in insurance

       proceeds to cover product loss and $1,934.22, which represented the cost of

       product that Carrillo had returned to the store. Carrillo submitted his own

       calculation of restitution which the trial court also admitted into evidence.

       Carrillo’s value of items lost totaled $885.79.


[12]   In reaching its determination that the amount of restitution should be

       $10,917.46, the trial court explained:


               The Court is basing the restitution based on the sheet that is
               provided as State’s Exhibit 1[, Tucker’s inventory list,] as I’ve
               stated, I’m not counting any of the items where there was a
               vendor where checks were made. I am not counting the
               recovered items. I am not counting any of the items that appear
               to be taken from lottery, cash transferred to lottery, um, or gas
               cards charged to the store that may be fraudulent because none of
               that type of crime was asserted in the charging information but
               rather I’m looking at to [sic] the items that on the inventory
               control were presented as during the time that Mr. Carrillo was
               manager and in control of the store and the evidence has been
               clear and he admitted that he stole items in bulk form from the
               store and there is a list of inventory of items that were paid for
               but never appeared in the store for purchase to customers and
               therefore the costs of that were lost. The Court determined in
               going through this that that amount would be thirteen thousand
               five hundred and twenty-four dollars ($13,524.00). The Court is
               looking at the State’s memo which deducted a few other items

       Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 5 of 6
               finding that the amount that they were requesting [is] ten
               thousand nine hundred seventeen dollars and forty-six cents
               ($10,917.46). The Court is going to order restitution in that
               amount . . . .


       Transcript at 68. The trial court acted within its discretion in ordering

       restitution in the amount of $10,917.46. Carrillo’s arguments to the contrary

       amount to invitations to reweigh evidence and judge witness credibility, which

       we may not do.


[13]   Judgment affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 6 of 6
