MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Sep 18 2018, 6:26 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew M. Kubacki                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyra Jacobs,                                             September 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-554
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1708-CM-30979



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018              Page 1 of 5
                                             Case Summary
[1]   Kyra Jacobs appeals the trial court’s restitution order following her conviction

      for class A misdemeanor criminal mischief. Jacobs asserts that insufficient

      evidence supports the restitution order and that the trial court abused its

      discretion in failing to inquire about her ability to pay. Finding the evidence

      sufficient and no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   Pro Logistics is a staffing agency that provides temporary staffing for

      warehouses. On August 9, 2017, Jacobs appeared at the Pro Logistics office

      and was upset “because she was turned away from a job assignment due to it

      being overfilled.” Tr. Vol. 2 at 7. She was “irritated that she had wasted her

      time and was asking for reimbursement via gift card or some other kind of

      compensation for her time.” Id. After operations manager Christina Powell

      apologized to Jacobs and explained to her that the company did not reimburse

      for that kind of thing, Jacobs demanded to speak to a supervisor. Jacobs

      became more agitated, and Powell advised Jacobs that she needed to leave or

      the police would be called. Jacobs then stood up and pushed a computer

      “screen forward” onto the floor. Id. at 20. She also smashed a picture frame

      and went behind the reception desk and threw a laser printer “to the ground.”

      Id. at 21. Both the computer and the printer were “[ef]fectively destroyed.” Id.

      at 10.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018   Page 2 of 5
[3]   The State charged Jacobs with class A misdemeanor criminal mischief.

      Following a bench trial, the court found her guilty as charged and sentenced her

      to one year of nonreporting probation. The trial court found Jacobs indigent as

      to court costs and instructed her that she could request to be found indigent as

      to the nominal fees associated with nonreporting probation in the event she was

      unable to pay those fees. The court ordered restitution in the amount of $1694

      in favor of Pro Logistics, but specifically advised the parties that the restitution

      was “not a condition of Probation.” Id. at 41. Jacobs now appeals the

      restitution order.


                                     Discussion and Decision

       Section 1 – The State presented sufficient evidence to support
                           the restitution order.
[4]   Jacobs first contends that the restitution order is not supported by sufficient

      evidence. In sentencing a criminal defendant, a trial court may order the

      defendant to “[m]ake restitution ... to the victim of the crime for damage ... that

      was sustained by the victim.” Ind. Code § 35-38-2-2.3(a)(6). “An order of

      restitution is as much a part of a criminal sentence as a fine or other penalty.”

      Bell v. State, 59 N.E.3d 959, 962 (Ind. 2016) (quotation marks and brackets

      omitted). The imposition of restitution falls “within the trial court’s discretion,

      and we will reverse only on a showing of abuse of discretion.” Garcia v. State, 47

      N.E.3d 1249, 1252 (Ind. Ct. App. 2015), trans. denied (2016). An abuse of

      discretion occurs when the court’s decision is against the logic and effect of the

      facts and circumstances before it. Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018   Page 3 of 5
[5]   “A restitution order must be supported by sufficient evidence of actual loss

      sustained by the victim of a crime.” Id. “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.” Id. We will affirm

      the trial court’s decision regarding the amount of restitution to be paid if there is

      any evidence supporting the decision. Smith v. State, 990 N.E.2d 517, 520 (Ind.

      Ct. App. 2013), trans. denied.


[6]   The trial court ordered Jacobs to pay Pro Logistics $1694 in restitution. Jacobs

      argues that the State presented insufficient evidence to support this estimation

      of the actual loss sustained. On the issue of restitution, Powell testified that

      Jacobs destroyed a computer and a printer. She stated that the estimated

      damage was $995 for the computer and $699 for the printer. She testified that

      the damage estimates were based on information she received from the

      company’s lead IT employee who was familiar with the cost of replacement,

      setup, and installation of those pieces of equipment. This evidence is sufficient,

      as it afforded the trier of fact a reasonable basis for estimating the actual loss

      suffered by Pro Logistics. Accordingly, we affirm the trial court’s decision

      regarding the amount of restitution to be paid.


         Section 2 – The trial court was not required to inquire into
                           Jacobs’s ability to pay.
[7]   Jacobs next asserts that the trial court abused its discretion in entering a

      restitution order without first inquiring into her ability to pay. It is well settled

      that when restitution is ordered as a condition of probation or suspended

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018   Page 4 of 5
      sentence, the court is required to inquire into the defendant’s ability to pay.

      Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008). This rule is intended to

      prevent an indigent defendant from being imprisoned because of a probation

      violation based on her failure to pay restitution. Bell v. State, 59 N.E.3d 959,

      963 (Ind. 2016). However, when restitution is ordered as part of an executed

      sentence, no inquiry into the ability to pay is required because restitution is

      merely a money judgment, and a defendant cannot be imprisoned for

      nonpayment. Id.


[8]   The trial court here simply entered a money judgment against Jacobs. Indeed,

      the court declined to make the restitution order a condition of probation and

      specifically acknowledged, “We’ve not inquired [in]to her ability to pay. So I

      can’t make it a condition of Probation.” Tr. Vol. 2 at 40. Jacobs concedes this

      point but nevertheless argues that the trial court abused its discretion in failing

      to inquire into her ability to pay. Jacobs directs us to no legal authority, and we

      are unaware of any, which imposes such a requirement under the

      circumstances. The trial court did not abuse its discretion.


[9]   Affirmed.


      Najam, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-554 | September 18, 2018   Page 5 of 5
