Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                     Mar 18 2014, 9:34 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                                 GREGORY F. ZOELLER
Oldenburg, Indiana                                 Attorney General of Indiana

                                                   JAMES B. MARTIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

HENRY WOODS,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A02-1308-CR-701
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Deborah J. Shook, Commissioner
                             Cause No. 49F07-1210-CM-75006



                                         March 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On October 24, 2012, Appellant-Defendant Henry Woods was involved in a traffic

accident with Bianca Cunningham. As a result of the traffic accident, Cunningham suffered

injuries to her person and her vehicle was totaled. Upon testing, it was determined that at the

time of the accident, Woods was operating his vehicle while under the influence of alcohol.

       On or about November 5, 2012, the Appellee-Plaintiff the State of Indiana charged

Woods with three misdemeanor offenses for operating a vehicle while intoxicated (“OWI”).

Woods subsequently pled guilty to one count of Class A misdemeanor OWI. Pursuant to the

terms of the plea agreement, Woods agreed to pay restitution to Cunningham. In exchange

for Woods’s plea, the State agreed to dismiss all of the remaining charges.

       On appeal, Woods challenges the trial court’s order that he pay $1600 in restitution to

Cunningham for the damage to her vehicle. In raising this challenge, Woods argues that the

evidence is insufficient to sustain the restitution award, and that the trial court failed to

inquire into his ability to pay the amount of restitution ordered. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The factual basis entered during the March 14, 2013 guilty plea hearing provides as

follows:

       [O]n or about October 24, 2012, in Marion County, State of Indiana, at 6500
       East 21st Street, the following named defendant, Henry Woods, did operate a
       vehicle in a manner that endangered a person while intoxicated. More
       specifically on that date, [O]fficer Earnest Goss with the Indianapolis
       Metropolitan Police Department … came into contact, contact with the
       defendant … he … found Henry Woods still sitting in the driver [sic] seat of a
       vehicle that had been involved in an accident.… [A]t that time the defendant
       was seen to have glassy eyes … the defendant admitted to having a couple of
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       drinks previous … and confirmed that he had, had a 12 ounce beer.…
       [F]urther he had an odor of alcoholic beverage on his breath … he did submit
       to a blood test, which did result a test of, of .26 grams of alcohol per 210 liters
       of his breath.

Tr. pp. 6-7.

       On or about November 5, 2012, the State charged Woods with one count of Class A

misdemeanor OWI, one count of Class A misdemeanor operating a vehicle with an alcohol

concentration above 0.15, and one count of Class C misdemeanor operating a vehicle with an

alcohol concentration between 0.08 and 0.15. On March 14, 2013, Woods entered into a plea

agreement with the State. Pursuant to the terms of the plea agreement, Woods pled guilty to

one count of Class A misdemeanor OWI. Woods additionally agreed to pay restitution to

Cunningham. In exchange for Woods’s plea, the State agreed to dismiss all of the remaining

charges.

       During the guilty plea hearing, the trial court questioned Woods about his ability to

pay restitution as provided by the plea agreement. The trial court asked Woods whether he

had any income. Woods answered in the affirmative, stating that he received regular Social

Security disability payments. In agreeing to pay restitution, Woods acknowledged that he

would “have to start budgeting [his] money a little differently.” Tr. p. 16. Taking Woods’s

financial state into account, the trial court ordered that restitution be paid on a “sliding fee

scale so that it doesn’t break the bank.” Tr. p. 15.

       On July 17, 2013, the trial court conducted a hearing to determine the amount of

restitution owed to Cunningham. The parties stipulated to a restitution award of $2851 with


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regard to medical bills for treatment for the injuries suffered by Cunningham. With respect

to Cunningham’s vehicle, Cunningham acknowledged that she did not have any

documentation relating to the pre-accident value of her vehicle. However, she testified that

she had purchased the vehicle three months prior to the accident for $3200. Cunningham

testified that prior to the accident, the condition of the vehicle had not changed substantially

since the purchase date. Cunningham further testified that as a result of the accident, her

vehicle was totaled and she did not recover any insurance funds relating to the remaining or

scrap value of the vehicle. Upon considering Cunningham’s testimony, the trial court

ordered that Woods pay $1600 in restitution for the damage to Cunningham’s vehicle. This

appeal follows.

                              DISCUSSION AND DECISION

       Woods contends that the trial court abused its discretion in ordering that he pay $1600

in restitution to Cunningham for the damage to her vehicle. Specifically, Woods argues that

the evidence is insufficient to sustain the restitution award, and that the trial court failed to

inquire into his ability to pay the amount of restitution ordered. The State counters, arguing

that Cunningham’s testimony regarding the value of and damage to her vehicle is sufficient

to sustain the restitution order, and that the trial court properly inquired into Woods’s ability

to pay restitution.

       “A trial court has the authority to order a defendant convicted of a crime to make

restitution to the victims of the crime.” Wolff v. State, 914 N.E.2d 299, 303 (Ind. Ct. App.

2009) (citing Henderson v. State, 848 N.E.2d 341, 345-46 (Ind. Ct. App. 2006)); see also Ind.

                                               4
Code § 35-50-5-3. “The purpose of a restitution order is to impress upon the criminal

defendant the magnitude of the loss he has caused and to defray costs to the victims caused

by the offense.” Id. (citing Henderson, 848 N.E.2d at 346).

       It is well established that “restitution must reflect actual loss incurred by a
       victim,” and that any “loss proven to be attributable to the defendant’s charged
       crimes” is recoverable as restitution. Batarseh v. State, 622 N.E.2d 192, 196
       (Ind. Ct. App. 1993) (discussing Hipskind v. State, 519 N.E.2d 572, 574 (Ind.
       Ct. App. 1988)), trans. denied.
              The amount of a victim’s loss is a factual matter that can be determined
       only on presentation of evidence. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.
       App. 2008). An order of restitution is a matter within the trial court’s
       discretion, and we reverse only on a showing of abuse of that discretion.
       Wolff, 914 N.E.2d at 303. An abuse of discretion occurs when the order is
       clearly against the logic and effect of the facts and circumstances before the
       court or the reasonable, probable, and actual deductions to be drawn therefrom.
        Id. Under our abuse of discretion standard, we will affirm the trial court’s
       decision if there is any evidence supporting the decision. Creager v. State, 737
       N.E.2d 771, 779 (Ind. Ct. App. 2000), trans. denied.

Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013) trans. denied.

             I. Sufficiency of the Evidence to Sustain Restitution Award

       Initially, we note that Woods stipulated to the $2851 restitution award relating to

Cunningham’s medical bills and does not challenge that portion of the trial court’s order on

appeal. Woods only challenges the sufficiency of the evidence to sustain the $1600

restitution award relating to Cunningham’s vehicle on appeal. As such, our review is limited

to whether the evidence is sufficient to sustain the $1600 restitution award relating to

Cunningham’s vehicle.

       The record demonstrates that Cunningham testified about the value of and damage to

her vehicle during the restitution hearing. Cunningham acknowledged that she did not have

                                              5
any documentation relating to the pre-accident value of her vehicle, but testified that she had

purchased the vehicle three months prior to the accident for $3200. Cunningham also

testified that prior to the accident, the condition of the vehicle had not changed substantially

since the purchase date. Cunningham detailed the damage to her vehicle and testified that, as

a result of the damage caused by the accident, her vehicle was totaled. Cunningham further

testified that she did not recover any insurance funds relating to the remaining or scrap value

of the vehicle. In considering Cunningham’s testimony regarding the value of her vehicle,

the trial court acknowledged that the value of a vehicle usually depreciates after the purchase

of the vehicle and determined that based on Cunningham’s testimony, a $1600 restitution

award was appropriate.

       Woods argues that the evidence is insufficient to sustain the restitution award because

the State failed to present documentation supporting Cunningham’s testimony about the

damage to and value of her vehicle. However, in Smith, this court concluded that the

victim’s testimony regarding the claimed loss was sufficient to demonstrate the degree of loss

attributable to the defendant’s crime, and that the victim could recover that loss as restitution.

990 N.E.2d at 520. Similarly, in the instant matter, Cunningham’s testimony regarding the

damage to and value of her vehicle is sufficient to demonstrate the degree of loss attributable

to Woods’s criminal actions. As such, we conclude that the evidence, i.e., Cunningham’s

testimony, is sufficient to sustain the trial court’s restitution order. Insofar as Woods

challenges Cunningham’s testimony on appeal, Woods’s argument is merely a request for

this court to reweigh the evidence, which we will not do. Id.

                                                6
                                II. Woods’s Ability to Pay

       Woods also asserts that the trial court failed to inquire into his ability to pay

restitution.

       When restitution is ordered as a condition of probation, “the court shall fix the
       amount, which may not exceed an amount the person can or will be able to
       pay.” I.C. § 35-38-2-2.3(a)(5). Although the trial court must determine the
       defendant’s ability to pay the amount of restitution ordered, the statute does
       not specify the extent to which the court must inquire to determine the
       defendant’s financial status. Smith v. State, 655 N.E.2d 133, 134 (Ind. Ct.
       App. 1995), trans. denied; see also Kays v. State, 963 N.E.2d 507, 509 (Ind.
       2012) (“The statute sets forth no particular procedure the trial court must
       follow in determining the defendant’s ability to pay, but we have consistently
       recognized that some form of inquiry is required.”). Thus, we review this issue
       for an abuse of discretion. See Smith, 655 N.E.2d at 134.

Id. at 522.

       Here, the record reflects that the trial court inquired into Woods’s ability to pay

restitution. Again, during the guilty plea hearing, the trial court asked Woods whether he had

any income. Woods answered in the affirmative, stating that he received regular Social

Security disability payments. The Indiana Supreme Court has held that a trial court may take

Social Security payments into consideration when considering an individual’s ability to pay

restitution. See Kays, 963 N.E.2d at 510. Further, in agreeing to pay restitution, Woods

acknowledged that he would “have to start budgeting [his] money a little differently.” Tr. p.

16. Taking Woods’s financial state into account, the trial court ordered that restitution be

paid on a “sliding fee scale so that it doesn’t break the bank.” Tr. p. 15.

       The record clearly demonstrates that the trial court clearly considered Woods’s ability

to pay when imposing the restitution order. As such, we conclude that the trial court did not

                                              7
abuse its discretion in this regard.

       The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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