                                                                                  FILED
                                                                             Sep 19 2017, 8:22 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana                                     Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Racquel Postiglione,                                      September 19, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1607-CR-1662
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Mark D. Stoner,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G06-1504-F5-14728



      Pyle, Judge.


                                        Statement of the Case
[1]   Racquel Postiglione (“Postiglione”) appeals the trial court’s restitution order

      entered following her conviction for Class A misdemeanor battery resulting in




      Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017                   Page 1 of 14
      bodily injury.1 Postiglione argues that the trial court abused its discretion by

      ordering her to pay $18,451.33 in restitution to the victim, contending that she

      did not cause the victim’s injuries for which restitution was ordered.

      Concluding that, in light of the facts and circumstances of this case, there was

      evidence and reasonable inferences therefrom to show that the victim incurred

      medical costs as a result of Postiglione’s crime, we find no abuse of discretion

      and affirm the trial court’s order of restitution.

[2]   We affirm.


                                                           Issue
                 Whether the trial court abused its discretion by ordering
                 Postiglione to pay $18,451.33 in restitution to the victim.

                                                           Facts
[3]   Around 1:00 a.m. on April 24, 2015, Postiglione and three male friends,

      including her boyfriend, Christopher Shafer (“Christopher”),2 and his brother,

      Michael Shafer (“Michael”), went into the Alley Cat bar (“the bar”) in Broad

      Ripple. Postiglione and her companions had already consumed varying levels

      of alcohol prior to arriving at the bar. The bartender, Matthew Marcuccilli

      (“Marcuccilli”), noticed Postiglione and the others as they walked in the bar

      because they were “very loud” and “clearly intoxicated.” (Tr. Vol. 2 at 13).

      Marcuccilli “immediately decided not to serve them” any alcohol and instead



      1
          IND. CODE § 35-42-2-1.
      2
          During the trial, some of the witnesses referred to Christopher as Nicholas or Nick.


      Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017              Page 2 of 14
      served them water. (Tr. Vol. 2 at 13). Marcuccilli considered Postiglione to be

      “the rudest” of the group as she was “screaming profanities” and “[s]lurs” and

      “bothering” customers. (Tr. Vol. 2 at 14). After Postiglione and the others

      caused multiple “confrontations” and “squabbles” with other customers,

      Marcuccilli asked them to leave the bar. (Tr. Vol. 2 at 18). They, however,

      “kept sneaking back in” the bar, and Marcuccilli asked them to leave another

      three times. (Tr. Vol. 2 at 20).

[4]   Eventually, Marcuccilli, with a small, wooden bat in hand, hit the bat on the

      bar and threatened to call the police if Postiglione and her friends did not

      permanently leave the bar. Marcuccilli signaled to Joe Kelly (“Kelly”), who

      worked across the street from the bar and was a regular customer, that he

      needed help in getting Postiglione and her friends to leave the bar. Marcuccilli,

      with Kelly behind him, walked Postiglione and her friends to the door. As

      Postiglione walked out, she yelled, “I’ll kick that white bitch’s ass[,]”

      referencing another female customer. (Tr. Vol. 2 at 52). Once Postiglione and

      the others were out the door and had walked down the alley, Marcuccilli

      returned to the bar to work, and Kelly stood in the doorway for several minutes.

[5]   Shortly thereafter, Michael came back to the door of the bar, and Kelly, who

      was still in the doorway, directed him back into the alley. Kelly walked

      Michael down the alley near a dumpster, and Michael “took off running”

      towards his two male companions. (Tr. Vol. 2 at 77). Postiglione then came

      out from behind the dumpster, “got in [Kelly’s] face[,]” and started

      “screaming” at him. (Tr. Vol. 2 at 77). Postiglione grabbed Kelly’s beard with

      Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 3 of 14
      both hands, put her feet on his thighs, and tried to “rip [his] beard out.” (Tr.

      Vol. 2 at 78). Kelly, who felt “extreme[] pain[],” grabbed the top of his beard so

      Postiglione would not rip it out. (Tr. Vol. 2 at 78). In an attempt to get

      Postiglione to let go of his beard, he grabbed, but did not pull, Postiglione’s hair

      and threatened to “rip her hair out” if she did not let go of his beard. (Tr. Vol. 2

      at 78). Michael and Christopher came up and tried to pull Postiglione and

      Kelly apart and then repeatedly punched Kelly. Kelly did not punch back or hit

      anyone. As Postiglione was “latched onto” Kelly and the others were pulling

      on them, Kelly “lost his balance[,]” fell to the ground, and broke his leg. (Tr.

      Vol. 2 at 101). As Kelly was on the ground, Christopher kicked him in the face

      and Michael “stomped” multiple times on Kelly’s ankle, causing it to break.

      (Tr. Vol. 2 at 79). Postiglione and the others laughed at him and told him that

      he was going to jail.

[6]   Eventually, an employee of the bar, Maurice James (“James”), arrived in the

      alley and pulled Michael off Kelly. James heard Postiglione yelling, “trailer

      trash” and thought he saw her “kicking [Kelly] in his legs” while he was on the

      ground. (Tr. Vol. 2 at 140-41). Kelly was unable to walk and struggled to sit up

      against a fence. As he did so, he felt that “both places on [his] leg were

      definitely hurting very bad[ly].” (Tr. Vol. 2 at 79). Thereafter, the police

      arrived and arrested Postiglione and Christopher but not Michael because he

      had run away. Postiglione was “verbally combative” with the police and gave

      “smart aleck remarks.” (Tr. Vol. 2 at 166). Kelly was taken to the hospital. He




      Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 4 of 14
      suffered a broken leg, a broken ankle, and abrasions on his face. Kelly later had

      a surgery to insert two screws in his ankle.

[7]   The State jointly charged Postiglione, Michael, and Christopher with Level 5

      felony battery resulting in serious bodily injury. Specifically, the State alleged

      that the serious bodily injury was a broken bone in Kelly’s left leg.

[8]   In May 2016, the trial court held a bench trial, in which Postiglione and her co-

      defendants were tried jointly. The State presented testimony from Marcuccilli

      and Kelly regarding the facts above. It also presented testimony from other bar

      employees and the responding police officers.


[9]   Postiglione testified on her own behalf. She acknowledged that she had

      verbally argued with another customer and that she had used “combative

      speech.” (Tr. Vol. 2 at 240). She admitted that she had been asked to leave the

      bar but denied that she had been escorted out of the bar. Postiglione also

      denied that she had hit or kicked Kelly’s leg. Her defense at trial was that Kelly

      was the initial aggressor and that she had acted in self-defense. Specifically, she

      testified that Kelly had yelled “slurs” at her from down the alley and that she

      had yelled back at him. (Tr. Vol. 2 at 243). She also testified that, as Kelly had

      gotten closer to her, he had “spit at [her], kind of like a sprinkler[.]” (Tr. Vol. 2

      at 243). Postiglione testified that Kelly had spit at her three or four times “to

      get a rise out of [her]” and “to provoke” her. (Tr. Vol. 2 at 243-44).

      Additionally, she testified that Kelly had hit her jaw with an “open fist” and

      opined that Kelly had “knowingly just hit [her] enough to knock [her] off [her]


      Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 5 of 14
       feet a bit.” (Tr. Vol. 2 at 244). Postiglione testified that Kelly had also

       delivered “a blow to the back of [her] head[.]” (Tr. Vol. 2 at 244). Postiglione’s

       counsel argued that Kelly was mad at Postiglione because she was an outsider

       at the bar and had gotten into an argument with a regular customer and that

       Postiglione was not the initial aggressor.3

[10]   Before entering its verdict, the trial judge stated that “in listening to this case, . .

       . it. . . [was] pretty clear . . . that this [wa]sn’t one which you c[ould] find a

       whole lot of nuance or come up with some Solomonic resolution as to what

       [had] really happened.” (Tr. Vol. 3 at 72). He added that it had “been a while

       since [he had] heard a court trial in which one side or the other [had] clearly

       lied to the Court.” (Tr. Vol. 3 at 72). The trial judge further stated that “out of

       the people that [had] testified, [he] [had] believed [Postiglione] the least.” (Tr.

       Vol. 3 at 72). The judge elaborated that it had “been a while since [he’d] had

       somebody come in and try to snow the Court as much as they ha[d] with extra

       verbiage and not answering things, and put[ting] things a particular way.” (Tr.

       Vol. 3 at 72). The trial judge pointed out that the existence of Kelly’s injuries

       was “undisputed” but that the dispute rested in “[h]ow they [had] occurred[.]”

       (Tr. Vol. 3 at 72). The judge stated that it was clear that Postiglione and Kelly

       were “engaged in mutual combat” but stated that she was not the person who

       had “inflicted the blows to the extent of the damage[.]” (Tr. Vol. 3 at 75). The


       3
         Michael’s defense was also self-defense. He testified that he did not want to fight Kelly and that he had
       engaged Kelly because he was trying to protect Postiglione from Kelly, who—according to Michael’s
       testimony—had grabbed her and had thrown her on the ground. Michael also denied that he had stomped
       on Kelly’s ankle. Christopher’s defense was that he was not involved in the situation between Postiglione
       and Kelly.

       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017                    Page 6 of 14
       trial court found Postiglione guilty of the lesser-included offense of Class A

       misdemeanor battery. The judge stated that Michael and Christopher were

       “defending the person with the mouth” and found them not guilty. (Tr. Vol. 3

       at 74-75).

[11]   During the sentencing hearing, the parties disagreed about how restitution

       should be handled. The State introduced: (1) State’s Sentencing Exhibit 1, a

       restitution statement from the Indiana Criminal Justice Institute to show that it

       had paid $15,000.00 from the Violent Crime Compensation Fund toward

       Kelly’s medical bills; and (2) State’s Sentencing Exhibit 2, a list of Kelly’s

       medical bills totaling $33,451.33. State’s Exhibit 2 included medical bills, from

       varied dates, for the following: ambulance services; radiology services;

       crutches; anesthesia services; and hospital services. Kelly testified that he had

       had one surgery for his injuries and that it had taken him approximately six

       months to recover from his injuries.

[12]   Postiglione’s counsel argued that Postiglione should not have to pay the

       restitution requested because Kelly’s medical bills were a result of his broken

       leg, and Postiglione “did not cause the broken leg.” (Tr. Vol. 3 at 93). Her

       counsel also argued that the trial court, by convicting Postiglione of the lesser

       included misdemeanor battery, had determined that she was not “responsible

       for the broken leg.” (Tr. Vol. 3 at 93). Postiglione’s counsel, however,

       acknowledged that Kelly could seek restitution in civil court.




       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 7 of 14
[13]   The State responded the restitution was proper because Postiglione was found

       guilty of battery causing bodily injury to Kelly. Citing to Lowden v. State, 51

       N.E.3d 1220 (Ind. Ct. App. 2016), trans. denied, the State argued that the injury

       to Kelly did not have to be foreseeable and that, because Postiglione was found

       guilty of battery, she was responsible for any injury that resulted from her

       crime.4

[14]   The trial court acknowledged the State had originally charged Postiglione with

       battery resulting in serious bodily injury and that the court had found her guilty

       of battery resulting in bodily injury. At the end of the hearing, the trial court

       took the matter of restitution under advisement. The trial court then imposed a

       one (1) year sentence suspended to non-reporting probation, and it ordered

       Postiglione to complete 100 hours of community service.

[15]   Thereafter, the trial court entered its restitution order and ordered Postiglione to

       pay $18,451.33 in restitution to Kelly. Specifically, the trial court determined

       that Kelly had incurred $33,451.33 in medical expenses, noted that Kelly had

       received $15,000.00 from the Indiana Criminal Justice Institute’s Violent Crime

       Compensation Fund, and ordered Postiglione to pay the remaining $18,451.33




       4
         In Lowden, our Court reviewed the aggravated battery statute when addressing the defendant’s jury
       instruction argument. Specifically, the defendant argued that the State was required to prove that the
       defendant “knew his conduct would lead to serious bodily injury.” Lowden, 51 N.E.3d at 1222. We rejected
       the defendant’s argument and held that “the severity of the injury [wa]s not an element of the prohibited
       conduct, but a result of it.” Id. at 1223. We explained that, “the State was required to prove only that [the
       defendant] knowingly or intentionally inflicted injury upon [the victim] and not that [the defendant] knew he
       would cause serious bodily injury.” Id.


       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017                    Page 8 of 14
       in restitution to Kelly. In its order, the trial court gave the following “support

       of its ruling[:]”

               1. [Postiglione] was found guilty of battery, a [C]lass [A]
               misdemeanor, for physically striking Joseph Kelly. The Court
               made the equitable ruling of not convicting [Postiglione] of the
               more serious Class C [sic] felony battery resulting in serious
               bodily injury, because the evidence suggested these injuries were
               more likely inflicted by [Postiglione’s] co-defendants, Christopher
               Schafer and Michael Schafer.

               2. The battery committed by [Postiglione], however, started the
               fracas and the codefendants[’] actions were not a separate,
               intervening action which might have removed [Postiglione’s]
               responsibility for restitution.

               3. The injuries sustained by Joseph Kelly were reasonably
               foreseeable and a direct consequence of the acts initiated by
               [Postiglione].

       (App. Vol. 2 at 6). Postiglione now appeals.


                                                    Decision
[16]   Postiglione argues that the trial court abused its discretion by ordering her to

       pay $18,451.33 in restitution to Kelly, contending that she did not directly cause

       Kelly’s injury for which he sought restitution.

[17]   Pursuant to the restitution statute, INDIANA CODE § 35-50-5-3, a trial court has

       authority to “order [a defendant] to make restitution to the victim of the crime[.]”

       IND. CODE § 35-50-5-3(a) (emphasis added). The trial court “shall base its

       restitution order upon a consideration of . . . [among other things,] . . . medical

       and hospital costs incurred by the victim (before the date of sentencing) as a

       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 9 of 14
       result of the crime[.]” I.C. § 35-50-5-3(a)(2) (emphasis added). “Although the

       [restitution] statute does not define the term ‘victim,’ [the Indiana Supreme]

       Court has held that restitution is properly payable to ‘those shown to have

       suffered injury, harm or loss as a direct and immediate result of the criminal

       acts of a defendant.’” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013)

       (quoting Reinbold v. State, 555 N.E.2d 463, 470 (Ind. 1990), overruled in part on

       other grounds by Wright v. State, 658 N.E.2d 563 (Ind. 1995)).


[18]   “The 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.”

       Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008), reh’g denied. “Restitution also

       serves to compensate the offender’s victim.” Id. An order of restitution lies

       within the trial court’s discretion and will be reversed only where there has been

       an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A “trial

       court abuses its discretion in ordering restitution ‘only if no evidence or

       reasonable inferences therefrom support the trial court’s decision[.]’” Archer v. State,

       --N.E.3d--, 2017 WL 3882430, *3 (Ind. Sept. 6, 2017) (quoting Little v. State, 839

       N.E.2d 807, 809 (Ind. Ct. App. 2005)) (emphasis added by Archer).


[19]   Postiglione does not challenge her Class A misdemeanor battery conviction;

       thus, she does not dispute that she knowingly or intentionally touched Kelly in

       a rude, insolent, or angry manner, resulting in bodily injury to Kelly. See I.C. §

       35-42-2-1. She also does not dispute that: (1) Kelly sustained injuries in his

       encounter with Postiglione and her co-defendants; (2) Kelly incurred medical

       bills totaling $33,451.33 as a result of his injuries; and (3) the State presented
       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 10 of 14
       evidence to show that he had incurred those medical bills. Instead, Postiglione

       suggests that Kelly’s medical costs were all related to Kelly’s broken ankle

       injury and his surgery for that ankle fracture, and she contends that “the State

       failed to present sufficient evidence to prove that [she] caused the injury to Mr.

       Kelly [that] required him to have surgery.” (Postiglione’s Br. 7). She asserts

       that Kelly’s ankle injury was caused by Michael stomping on it and contends

       that there was “no evidence that [her] criminal conduct caused Michael to

       stomp repeatedly on Mr. Kelly’s ankle[.]” (Postiglione’s Br. 9). She seems to

       argue that Kelly could not be considered her victim because she did not directly

       or solely cause his specific ankle injury.

[20]   Postiglione, however, ignores the fact that Kelly had a broken leg in addition to

       a broken ankle and that Kelly broke his leg as he fell to the ground with

       Postiglione latched onto him. Furthermore, the medical bills included in State’s

       Exhibit 2 included medical bills that were related to all of Kelly’s injuries.

       These medical bills, which were incurred on various dates, included ambulance

       services, radiology services, crutches, anesthesia services, and hospital services.

[21]   More importantly, the restitution statute and case law do not require that a

       victim’s injury or loss be directly or solely “caused” by a defendant; instead,

       they require the victim’s injury or loss be a “result of” the defendant’s crime.

       See, e.g., I.C. § 35-50-5-3(a)(2); Archer, 2017 WL 3882430 at *3; Sickels, 982

       N.E.2d at 1013.




       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 11 of 14
[22]   Our supreme court has explained that “the word ‘victim’ in the statutes

       authorizing restitution has not been construed so narrowly as to limit the

       payment of restitution only to the person or entity actually subjected to the

       commission of the crime” and further explained that a victim could include

       third parties, such as survivors of a murder victim, as long as they had “shown

       to have suffered injury, harm or loss as a direct and immediate result of the

       criminal acts of a defendant.” Reinbold, 555 N.E.2d at 470. In Reinbold, our

       supreme court held that the trial court had acted within its discretion when it

       ordered a defendant to pay the victim’s “funeral and burial expenses incurred

       by [the victim’s] family, as well a figure designated as child support for the two

       minor children [the victim had] left.” Id. at 471. The Reinbold Court held that

       “[t]hese monetary losses born by these parties were the result of appellant’s

       criminal acts, and the trial court [had] acted within its statutory authority when

       ordering restitution for their recompense.” Id. (emphasis added).


[23]   More recently, in Archer, our supreme court reviewed the issue of restitution

       and the evidence necessary to support a trial court’s restitution order. Archer,

       2017 WL 3882430 at *3. In that case, a defendant stole a car, and, when the

       car was found five hours later, it had some damage and red paint on various

       places on the car. Id. at *1. The defendant pled guilty to auto theft, and the

       trial court ordered her to pay $5,240.32 in restitution to the victim for the spray-

       paint damage to the victim’s car. Id. On direct appeal, the defendant argued

       that the trial court had abused its discretion by ordering her to pay restitution

       because there was no evidence to show that the defendant “herself [had been]

       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 12 of 14
the one who [had] spray-painted the victim’s vehicle.” Id. at *3. Another panel

of our Court agreed and held, among other things, that “insufficient evidence

supported the restitution order because the record did not show that the spray-

paint damage was attributable to the theft.” Id. at *2. Our Indiana Supreme

Court granted transfer and affirmed the trial court’s restitution order. Id. at *3.

The Archer Court explained that appellate courts may find an abuse of

discretion in a trial court’s restitution order “only if no evidence or reasonable

inferences therefrom support the trial court’s decision[.]” Id. (emphasis in original

and internal quotation marks and citation omitted). The Archer Court held that

reasonable inferences supported the trial court’s restitution order at issue and

reasoned as follows:

        Here, there is sufficient evidence that the spray-painting is a
        result of the underlying auto theft. Archer pled guilty to auto
        theft; that is, she “knowingly exert[ed] unauthorized control over
        the motor vehicle of [the victim] . . . with the intent to deprive the
        person of the vehicle’s value or use.” (App. 16.) The record
        reveals that [the victim’s] vehicle was stolen. When it was
        recovered five hours later, Archer was driving the vehicle and it
        had fresh red paint all over its front and sides as well as covering
        the vehicle’s VIN. While it is true that no one testified that
        Archer was the one who spray-painted the vehicle, it can be
        reasonably inferred that Archer is responsible for that damage.
        For instance, it is a reasonable inference that the purpose of the
        paint was to change the vehicle’s appearance and/or conceal the
        VIN so it would not be recognized as stolen, facilitating the
        crime. Also, Archer was driving the vehicle only five hours after
        it was stolen so it is reasonable to infer that Archer was
        responsible for the painting, even if she wasn’t the person who
        actually sprayed the vehicle. Indeed, Archer stole the vehicle and


Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 13 of 14
               is responsible for the damage done to it while it was in her
               custody and control, including the spray-painting.

       Id. at *3.


[24]   Here, the trial court, when ordering restitution, explained that Postiglione had

       “started the fracas” and that her “codefendants[’] actions were not a separate,

       intervening action which might have removed [her] responsibility for

       restitution.” (App. Vol. 2 at 6). The trial court specifically found that Kelly’s

       injuries were a result of or a “direct consequence of the acts initiated by

       [Postiglione].” (App. Vol. 2 at 6). Based on our supreme court’s guidance in

       Archer and the purpose of restitution, we conclude that, in this specific case, the

       evidence and reasonable inferences therefrom support the trial court’s

       restitution order. Accordingly, we affirm the trial court’s restitution order

       requiring Postiglione to pay $18,451.33 in restitution to Kelly.

[25]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1607-CR-1662 | September 19, 2017   Page 14 of 14
