MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Mar 12 2019, 9:56 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
William T. Myers                                       Curtis T. Hill, Jr.
Blackford County Public Defender                       Attorney General of Indiana
Marion, Indiana
                                                       Caroline G. Templeton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Thomas Holiday,                                        March 12, 2019
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       18A-CR-2014
        v.                                             Appeal from the Blackford
                                                       Superior Court
State of Indiana,                                      The Honorable John N. Barry,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       05D01-1712-CM-339



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019                 Page 1 of 9
                                 Case Summary and Issue
[1]   Following a bench trial, Thomas Holiday was found guilty of battery resulting

      in bodily injury, a Class A misdemeanor. The trial court sentenced Holiday to

      one year of probation and ordered him to pay restitution in the amount of

      $1,295.44. This case presents the sole issue of whether the trial court abused its

      discretion in ordering Holiday to pay $1,295.44 in restitution. Concluding the

      trial court abused its discretion, we reverse the restitution order and remand for

      a new restitution hearing.



                             Facts and Procedural History
[2]   Nicole Lugar and Holiday were in an on and off romantic relationship and

      shared a son together. The two had been living together at Lugar’s apartment,

      but were experiencing relationship problems. Lugar asked Holiday to move out

      on November 8, 2017. Holiday packed his belongings and left. On the

      morning of November 9, Lugar and Bruce Hall1 awoke to find Holiday

      standing at the end of their bed “[d]istraught, upset, [and] mad[.]” Transcript,

      Volume I at 8. As Hall tried to get out of bed, Holiday “clenched his fists” and

      walked toward Hall. Id. Holiday grabbed Hall and as Hall attempted to push

      Holiday, he fell onto the bedside table and hit his head, causing him to lose




      1
       Holiday testified that, one month prior to the incident, Lugar and Hall had been in a relationship “for a
      week.” Transcript, Volume I at 37. Lugar and Hall were dating at the time of the incident and were engaged
      by the trial date.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019                 Page 2 of 9
      consciousness. When Hall regained consciousness, Holiday was on top of him,

      punching him. At some point, Holiday stuck his finger in Hall’s eye. See id. at

      9. As a result, the side of Hall’s face was bruised and he suffered a “softball

      size[d]” area of internal bleeding on his leg, which prompted him to go to the

      hospital. Id. at 10.


[3]   On December 7, the State charged Holiday with a single count of battery

      resulting in bodily injury, a Class A misdemeanor. A bench trial was held on

      July 20, 2018, and the trial court found Holiday guilty as charged. Hall

      requested restitution in the amount of $1,295.44, which included medical

      expenses and lost wages. At the bench trial, Hall testified that he was

      uninsured at the time of the incident and received a cash discount from the

      hospital. He also testified that due to his injuries, he took a few days off work,

      where he earned $14 or $15 per hour. The trial court sentenced Holiday to one

      year, with all time being suspended to formal supervised probation and ordered

      him to pay $1,295.44 in restitution to Hall as a condition of probation. Holiday

      objected to the restitution amount at trial and now appeals the trial court’s

      restitution order.



                                Discussion and Decision
                                    I. Standard of Review
[4]   A restitution order must be supported by sufficient evidence of actual loss

      sustained by the victim of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.

      App. 2008), trans. denied. “The harm or loss must come as a direct and
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019   Page 3 of 9
      immediate result of the criminal acts of a defendant.” Id. at 51 (internal

      quotation omitted). The amount of actual loss is a factual matter determined

      only by the presentation of evidence and we will reverse a restitution order only

      for an abuse of discretion. Id. at 49. An abuse of discretion occurs if the trial

      court’s decision is clearly against the logic and effects of the facts and

      circumstances before it. Long v. State, 867 N.E.2d 606, 618 (Ind. Ct. App.

      2007).


[5]   “A trial court abuses its discretion in ordering restitution only if no evidence or

      reasonable inferences therefrom support the trial court’s decision.” Postiglione v.

      State, 84 N.E.3d 659, 664 (Ind. Ct. App. 2017) (internal quotations omitted),

      trans. denied. We will affirm the trial court’s order if there is sufficient evidence

      to support its decision. Rich, 890 N.E.2d 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.” J.H. v.

      State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (internal quotation omitted).


                                     II. Restitution Order
[6]   A trial court “enjoys wide latitude in fashioning the terms of a defendant’s

      probation” and we will only set aside the terms of probation where a trial court

      has abused its discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A

      restitution order lies within this discretion. Id. “[T]he principal purpose of

      restitution is to vindicate the rights of society and to impress upon the defendant




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019   Page 4 of 9
      the magnitude of the loss the crime has caused[;] restitution also serves to

      compensate the victim.” Iltzsch v. State, 981 N.E.2d 55, 56 (Ind. 2013).


[7]   Indiana Code section 35-50-5-3(a) provides, in pertinent part:


              [I]n addition to any sentence imposed under this article for a
              felony or misdemeanor, the court may, as a condition of
              probation or without placing the person on probation, order the
              person to make restitution to the victim of the crime[.] The court
              shall base its restitution order upon a consideration of:


              ***


              (2) medical and hospital costs incurred by the victim (before the
              date of sentencing) as a result of the crime;


              ***


              (4) earnings lost by the victim (before the date of sentencing) as a
              result of the crime including earnings lost while the victim was
              hospitalized or participating in the investigation or trial of the
              crime[.]


[8]   “Restitution must reflect the actual medical costs incurred by the victim and

      may not include recovery for duplicated medical charges, such as those covered

      by insurance.” Akins v. State, 39 N.E.3d 410, 413 (Ind. Ct. App. 2015). A

      victim’s in court testimony may be sufficient to support a restitution order. Blixt

      v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007) (holding that testimony by

      a victim’s mother as to the amount of out of pocket medical expenses paid was

      sufficient to support the trial court’s restitution order).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019   Page 5 of 9
[9]    Holiday argues “[t]here was no clear evidence presented at the sentencing

       hearing” from which the trial court “could have made a fair restitution

       determination” and suggests this could lead to overcompensating Hall in

       violation of the restitution statute. Brief of Appellant at 7. Holiday, therefore,

       requests that we remand this case to the trial court to determine an appropriate

       restitution amount.


[10]   At sentencing, the State called Hall to testify regarding restitution and after

       establishing that he had to go to the hospital as a result of the incident and had

       medical expenses, Hall testified:


               [State]:                Okay. Does insurance cover most or all of
                                       that?


               [Hall]:                 I think, I didn’t have insurance, but when I
                                       went to the hospital, I think they gave me,
                                       since I was going to be a cash paying person,
                                       they gave me some type of discount, so the
                                       amount that I wrote on there was the final
                                       amount after they deducted like, cash
                                       discount.


               [State]:                Okay. So I’m showing that you submitted a
                                       claim of $1,295.44?


               [Hall]:                 Correct.


               [State]:                Alright. And all of those expenses were a
                                       result of the events of November 9th?



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019   Page 6 of 9
        [Hall]:                 Correct.


        [State]:                Have you had any other out of pocket
                                expenses because of that?


        [Hall]:                 No.


        [State]:                Okay. So $1,295.44 is the amount?


        [Hall]:                 Correct.


        ***


        [Hall]:                 I ended up having to take a, I think a few
                                days off from work, which I put that in there
                                as well because of incident, so between the
                                medical expenses and missing the time I had
                                to take off from work, that was the total
                                amount.


        [Court]:                Is that reflective in the $1,295.[44 ?]


        [Hall]:                 Yes, sir.


        [Court]:                Your missed time from work?


        [Hall]:                 Yes, sir.


        ***


        [Defense]:              You indicated that you were working at the
                                time?

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019   Page 7 of 9
               [Hal]:                  Correct.


               [Defense]:              Who was your boss?


               [Hall]:                 It’s called, A Better Power Washing Services.
                                       He’s [sic] name is Gerald Mason.


               [Defense]:              How much were you making an hour, Sir?


               [Hall]:                 It was roughly like fourteen or fifteen dollars
                                       an hour. Actually I put a copy of a form that
                                       he filled out or typed out . . . .


       Tr., Vol. 1 at 46-48.


[11]   Here, the only evidence supporting the trial court’s restitution order was Hall’s

       testimony at trial. Hall testified that he has incurred $1,295.44 in medical

       expenses and lost wages as a result of Holiday’s crime. He testified that he was

       uninsured when he went to the hospital, received a cash discount, and took a

       few days off from work where he earned $14 or $15 per hour. Although this

       court has held that a victim’s testimony may be sufficient to support a

       restitution order, Blixt, 872 N.E.2d at 153-54, we cannot say Hall’s testimony is

       sufficient because it is unclear exactly how many days he took off from work,

       the total amount of his hospital bill, the discount he received from the hospital,

       and how much he owed the hospital after the discount. Thus, Hall’s testimony

       failed to provide the trial court a “reasonable basis” for estimating his actual

       loss and subjected it to “mere speculation or conjecture[,]” particularly with

       respect to his lost wages. J.H., 950 N.E.2d at 734. With respect to restitution,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019    Page 8 of 9
       our supreme court has explained that “precedent supports remanding for

       additional evidence when appropriate.” Iltzsch, 981 N.E.2d at 57. In light of

       our supreme court’s decision in Iltzsch, we reverse the trial court’s restitution

       order and remand for a new restitution hearing to allow the presentation of

       additional evidence supporting Hall’s request for restitution in the amount of

       $1,295.44.2



                                                 Conclusion
[12]   Because the evidence in the record is insufficient to support the trial court’s

       restitution order, we conclude the trial court abused its discretion in ordering

       Holiday to pay Hall $1,295.44 and remand for a new restitution hearing

       permitting the presentation of additional evidence of Hall’s actual loss.


[13]   Reversed and remanded.


       Riley, J., and Kirsch, J., concur.




       2
        In his brief, Holiday states that “at the date of sentencing [Hall] had paid no out of pocket expense[,]”
       subtly hinting that the outstanding nature of the medical expenses is problematic. Br. of Appellant at 7. Any
       potential argument with respect to the outstanding nature of Hall’s medical expenses stops there and is
       waived. See Ind. Appellate Rule 46(A)(8)(a). On remand, the trial court should determine whether Hall’s
       medical expenses were incurred before the date of sentencing as a result of Holiday’s crime pursuant to
       Indiana Code section 35-50-5-3(a)(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2014 | March 12, 2019                    Page 9 of 9
