                                                                       Jan 29 2016, 5:27 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                         Gregory F. Zoeller
Kokomo, Indiana                                            Attorney General of Indiana
                                                           Richard C. Webster
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Y. Morgan,                                        January 29, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           34A05-1509-CR-1323
        v.                                                 Appeal from the Howard Superior
                                                           Court II
State of Indiana,                                          The Honorable Brant Parry, Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           34D02-1408-FD-211



Bailey, Judge.




Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016                   Page 1 of 6
                                             Case Summary
[1]   Kimberly Y. Morgan (“Morgan”) appeals a restitution order following her pleas

      of guilty to three counts of Theft, as Class D felonies. 1 She presents the issue of

      whether the trial court properly ordered her to pay $16,000.00 to the Howard

      County Convention and Visitors Commission, Inc. (“the Visitors

      Commission”), in addition to the $11,455.482 agreed-upon restitution to

      Selective Insurance Company of America (“Selective Insurance”). We affirm

      in part, reverse in part, and remand with instructions.



                                   Facts and Procedural History
[2]   During 2012, 2013, and part of 2014, the Visitors Commission employed

      Morgan as a sales manager. On January 22, 2014, Morgan was discharged

      from her employment and the Visitors Commission initiated an inquiry into

      Morgan’s alleged mishandling of funds.


[3]   On August 25, 2014, the State charged Morgan with seven counts of Theft, for

      conduct on or about January 25, 2012 (Count I), on or about August 22, 2012

      (Count 2), on or about February 25, 2013 (Count 3), on or about June 11, 2013

      (Count 4), on or about October 17, 2013 (Count 5), on or about December 21,

      2013 (Count 6), and on or about January 13, 2014 (Count 7). Morgan pled



      1
          Ind. Code § 35-43-4-2.
      2
       The trial court orally ordered the payment of $11,455.48; the written order states that the amount is
      $11,455.52.

      Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016                        Page 2 of 6
      guilty to three charges of Theft (Counts 1 through 3) but agreed to pay

      restitution related to the entirety of the charges. 3 She was sentenced to three

      years imprisonment, with two days executed and the balance suspended to

      probation.


[4]   On August 18, 2015, the trial court conducted an evidentiary hearing on the

      issue of restitution. A representative of Selective Insurance testified that his

      employer had received a claim from the Visitors Commission for approximately

      $27,000.00. At the conclusion of its investigation, Selective Insurance had paid

      out $11,455.48 (after allowing for the $250.00 deductible). Greater Kokomo

      Economic Development Alliance controller Joleen Boyles (“Boyles”) testified

      that a “deep dive audit” had revealed “missing funds” of a greater amount,

      specifically, $21,450.00. (Tr. at 13-14.) She also requested restitution of the

      $6,500.00 expended for the deep audit. Morgan testified and admitted that she

      had misused a charge card such that $11,455 of funds belonging to the Visitors

      Commission were diverted. She denied taking additional sums.


[5]   The trial court ordered Morgan to pay restitution to the Visitors Commission,

      as a condition of probation, in the amount of $16,000.00. She was ordered to

      pay Selective Insurance $11,455.52, but this was not made a condition of




      3
       Absent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did
      not result in a conviction. Polen v. State, 578 N.E.2d 755, 756-57 (Ind. Ct. App. 1991), trans. denied.

      Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016                       Page 3 of 6
      probation. Morgan appeals, challenging only the order with respect to the

      Visitors Commission.



                                  Discussion and Decision
[6]   Morgan contends that the appropriate amount of restitution consists of

      $11,455.48 to Selective Insurance and $250.00 to the Visitors Commission (to

      satisfy the insurance deductible). She argues that Boyles offered an

      “unsubstantiated assertion” as to aggregate losses and that the costs of a special

      audit are not recoverable as criminal restitution because the costs are not an

      actual loss suffered by the victim. (Appellant’s Br. at 9.)


[7]   As part of a sentence or as a condition of probation, a trial court may order a

      defendant to pay restitution to a victim. Bailey v. State, 717 N.E.2d 1, 4 (Ind.

      1999). “[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.” Iltzsch v.

      State, 981 N.E.2d 55, 56 (Ind. 2013).


[8]   The trial court is bound to comply with the applicable restitution statute when

      ordering restitution. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans.

      denied. Indiana law authorizes the trial court to order restitution for damages

      incurred “as a result of the crime.” I.C. § 35-50-5-3(a)(1). Because restitution is

      penal in nature, the statute providing for restitution must be strictly construed




      Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016   Page 4 of 6
       against the State to avoid enlarging it beyond the fair meaning of the language

       used. Cherry v. State, 772 N.E.2d 433, 439 (Ind. Ct. App. 2002), trans. denied.


[9]    Accordingly, a restitution order must reflect a loss sustained by the victim “as a

       direct and immediate result” of the defendant’s criminal acts. Rich, 890 N.E.2d

       at 51. The amount of actual loss is a factual matter to be determined upon the

       presentation of evidence. Id. at 49. We review a trial court’s order of

       restitution for an abuse of discretion and will affirm the order if sufficient

       evidence exists to support the decision. Id.


[10]   Here, the State presented exhibits (1) indicating that forensic accountants

       reporting to Selective Insurance “confirmed an employee dishonesty loss

       totaling $11,705.48” and (2) documenting the insurance payout of $11,455.48

       ($11,705.48 less the $250.00 deductible). (State’s Ex. 2.) According to

       information provided to Selective Insurance, Morgan had created a Square, Inc.

       credit card account to receive fraudulent credit card payments from the Visitors

       Commission. Selective Insurance was able to confirm, based upon a review of

       documentation provided by its insured, fraudulent charges totaling $14,045, a

       portion of which Morgan had repaid.


[11]   Boyles testified that additional monies were missing from the coffers of the

       Visitors Commission, relative to 2012 and 2013, based upon a “deep dive”

       audit. (Tr. at 13.) However, she did not offer testimony or documentation

       showing a nexus between those missing funds and conduct by Morgan. As

       such, the State did not satisfy its burden to show losses as a “direct and


       Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016   Page 5 of 6
       immediate result” of Morgan’s criminal acts beyond the $11,455.48 paid by

       Selective Insurance and the $250.00 deductible charged to the Visitors

       Commission. Rich, 890 N.E.2d at 51. As for the $6,500.00 awarded for the

       “deep dive” audit, this was also improper. See Lang v. State, 911 N.E.2d 131,

       136 (Ind. Ct. App. 2009) (concluding that an expenditure to determine the

       amount of a loss is outside the parameters of I.C. 35-50-5-3, a criminal

       restitution statute, although it may be the subject of a separate civil claim).



                                                  Conclusion
[12]   The trial court properly concluded that Morgan is to pay restitution to Selective

       Insurance. To the extent that the restitution order provides for restitution to the

       Visitors Commission in excess of the $250.00 deductible, it is an abuse of

       discretion. We remand with instructions to the trial court to enter a restitution

       order for the payment of $11,455.48 to Selective Insurance and $250.00 to the

       Visitors Commission.


[13]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016   Page 6 of 6
