MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Nov 17 2017, 10:04 am
this Memorandum Decision shall not be
                                                                              CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
court except for the purpose of establishing                                   and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                      Curtis T. Hill, Jr.
Oldenburg, Indiana                                      Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Phillip Brown,                                          November 17, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1703-CR-441
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Angela Dow-
Appellee-Plaintiff.                                     Davis, Judge
                                                        Trial Court Cause No.
                                                        49G16-1609-CM-35452



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017           Page 1 of 8
                                       Statement of the Case
[1]   Phillip Brown (“Brown”) appeals the trial court’s order that he pay restitution

      to the victim of the Class B misdemeanor criminal mischief offense for which

      he was convicted.1 He argues that the trial court abused its discretion when it

      ordered him to pay $139.18 in restitution because there was not sufficient

      evidence of the actual losses the victim had incurred and because the trial court

      did not inquire into his ability to pay the restitution. We agree that there was

      not sufficient evidence of the victim’s actual losses. Accordingly, we reverse

      and remand for the trial court to conduct a new restitution hearing. Because we

      remand for a new hearing, we need not address Brown’s second argument

      regarding the trial court’s inquiry into his ability to pay.


[2]   We reverse and remand.


                                                     Issue
                 Whether the trial court abused its discretion when it ordered
                 Brown to pay restitution in the amount of $139.18.

                                                    Facts
[3]   On December 20, 2016, Brown was convicted, following a bench trial, of Class

      A misdemeanor battery resulting in bodily injury and Class B misdemeanor

      criminal mischief. His Class B misdemeanor criminal mischief conviction was

      based on his act of throwing a sledgehammer through the window of a truck




      1
          IND. CODE § 35-43-1-2(a).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017   Page 2 of 8
      belonging to Denise White (“White”), a woman he had been dating. The Court

      sentenced him to 365 days with 351 days suspended to probation for the battery

      resulting in bodily injury conviction and to 180 days suspended to probation for

      the criminal mischief conviction. The trial court ordered the sentences to run

      concurrently and for the battery sentence to run consecutively to Brown’s

      sentence in another cause. In addition, the trial court ordered Brown to pay

      restitution for White’s broken truck window. The court set the matter for a

      restitution hearing and told Brown that if he paid the restitution in full and had

      served at least six months of his sentence, the trial court would close out his

      probation.


      Thereafter, on February 7, 2017, the trial court held a restitution hearing. At

      the hearing, the State told the trial court that it had several estimates of how

      much it would cost for White to replace her truck window. The State requested

      that the court order restitution in the amount of the lowest estimate, $139.18,

      but did not introduce the estimate as an exhibit. Brown objected to the estimate

      on the grounds that White was not “[t]here to say these are actually her receipts

      or where she got them from.” (Tr. Vol. 2 at 55). The State responded that the

      trial court “ha[d] the names of the company,” and the trial court ordered

      restitution of $139.18 over Brown’s objection. (Tr. Vol. 2 at 55). Brown now

      appeals.


                                                  Decision
[4]   On appeal, Brown argues that the trial court abused its discretion in ordering

      restitution of $139.18 because there was not sufficient evidence that it would
      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017   Page 3 of 8
      cost $139.18 to repair White’s truck window. Specifically, the State presented

      several estimates at the sentencing hearing but did not introduce those estimates

      into evidence. Brown objected to the estimates, noting that White was not

      present to say whether the estimates were hers or to clarify where she got them. 2

      The State responded that the trial court “ha[d] the names of the company,” and

      the trial court ordered restitution over Brown’s objection. (Tr. Vol. 2 at 55).


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

      defendant to pay restitution to a victim. Morgan v. State, 49 N.E.3d 1091, 1093

      (Ind. Ct. App. 2016). “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.

      Pursuant to INDIANA CODE § 35-50-5-3(a)(1), when ordering restitution, a trial

      court shall consider “property damages of the victim incurred as a result of the




      2
        On appeal, the State argues that Brown waived his argument because he objected on different grounds at
      the restitution hearing. However, our supreme court recently clarified the issue of waiver within the context
      of restitution in Bell v. State, 59 N.E.3d 959 (Ind. 2016). It noted that “although there have been cases in
      which appeals on restitution were waived due to the failure to make an objection at trial, ‘the vast weight of
      the recent case law in this state indicates that appellate courts will review a trial court’s restitution order even
      when the defendant did not object based on the rationale that a restitution order is part of the sentence, and it
      is the duty of the appellate courts to bring illegal sentences into compliance.’” Id. (quoting Rich v. State, 890
      N.E.2d 44, 48 (Ind. Ct. App. 2008)). We also reject the State’s argument that Brown invited any restitution
      error by stating “I’ll pay for it” during the restitution hearing. (Tr. Vol. 2 at 55). Brown did not make this
      statement within the context of determining the amount of White’s actual losses. Moreover, it is clear that
      Brown did not invite the trial court to determine that White’s actual losses totaled $139.18 as Brown objected
      to the State’s estimate.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017                 Page 4 of 8
      crime, based on the actual cost of repair (or replacement if repair is

      inappropriate).”


[6]   An order of restitution lies within the trial court’s discretion and will be

      reversed only where there has been an abuse of that 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, 81 N.E.3d 212, 216 (Ind. 2017)

      (quoting Little v. State, 839 N.E.2d 807, 809 (Ind. Ct. App. 2005)). A trial court

      also abuses its discretion if it misinterprets or misapplies the law. Baker v. State,

      70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied.


[7]   Here, Brown challenges the sufficiency of the State’s evidence of White’s loss.

      A restitution order must reflect a loss sustained by the victim “as a direct and

      immediate result” of the defendant’s criminal acts. Id. (quoting 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. 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. A.H. v. State, 10

      N.E.3d 37, 41 (Ind. Ct. App. 2014).


[8]   In support of Brown’s argument that White’s estimates were not sufficient

      evidence of her actual losses, he cites to J.H. v. State, 950 N.E.2d 731 (Ind. Ct.

      App. 2011). In J.H., J.H. damaged a neighbor’s door while attempting to enter

      the neighbor’s home without permission. Id. at 733. At the initial hearing, the


      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017   Page 5 of 8
       State presented a piece of paper containing an “estimate” of how much it would

       cost a company named “Mr. Fix It” to fix the door. Id. The estimate stated

       that it would cost $850 to replace the door’s window and $150 to tint the

       window. Id. The State did not present any additional evidence in support of

       the estimate, and J.H. requested a restitution hearing to investigate it. Id.

       J.H.’s counsel noted that $1,000 seemed “like an awfully large sum of money

       for a door.” Id.


[9]    Subsequently, the trial court held a restitution hearing. Id. Immediately before

       the hearing, the victim gave the State another piece of paper that she described

       as an “estimate.” Id. This time the estimate was for $1,117.65 from “Tucker’s

       Construction.” Id. Again, no copies were provided to the defense counsel or

       the trial court, and no additional evidence or testimony regarding the estimate

       was presented. Id. J.H. said that he had subpoenaed “Mr. Fix It,” but he had

       not appeared for the hearing. Id.


[10]   At the conclusion of the hearing, the trial court ordered J.H. to pay restitution

       in the amount of $1,117.65. Id. at 734. On appeal, we held the trial court had

       abused its discretion in ordering the restitution because it was not based on

       sufficient evidence of the victim’s actual losses. See id. Specifically, we

       reasoned:


               Here, on two separate occasions, the victim waited until shortly
               before the hearing to give the deputy prosecutor a piece of paper
               with a dollar amount on it. The deputy prosecutor informed the
               juvenile court of the victim’s late submissions and of the amount
               on the papers. The deputy prosecutor made no other statements

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017   Page 6 of 8
               and presented no other evidence to show the legitimacy of the
               pieces of paper. Neither of the purported estimates was placed
               into evidence and neither is available for our review, so we
               cannot determine whether the dollar amounts were listed on
               papers containing any information, such as a letterhead, which
               would show the court that the paper came from a legitimate
               business. Furthermore, neither “estimate” showed the cost of
               labor and materials. Most importantly, the juvenile court failed
               to recognize that the State held the burden to establish the
               validity of the “estimates.” We can come to no other conclusion
               than that the “estimates” were mere speculation or conjecture
               and that the juvenile court's 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. at 734 (internal footnote omitted).


[11]   The circumstances here are similar to those in J.H. The State said that it had

       several “estimates” of the cost to fix White’s door but did not admit those

       estimates into evidence or present any additional evidence or testimony

       supporting them. Accordingly, we do not know, for example, details such as

       whether the estimates were on letterhead or showed the cost of labor and

       materials. The State argues that other factors provide a reasonable basis for the

       $139.18 restitution order, including the pictures of the damaged truck that the

       State entered into evidence. The State notes that, unlike in J.H. where the

       estimate seemed “like an awfully large sum of money for a door,” $139.18 was

       not an unlawfully large sum to fix a truck window based on the damage

       depicted in the pictures. The State also notes that $139.18 was the lowest

       estimate that it had provided. J.H., 950 N.E.2d at 733.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017   Page 7 of 8
[12]   However, the State’s argument would require this Court to evaluate whether, as

       it argues, $139.18 is a reasonable amount to fix a truck window. Such an

       evaluation is not within this Court’s purview or expertise and would eliminate

       the State’s burden of proving the victim’s actual costs. Instead, based on the

       lack of evidence before us in the record, we conclude, like in J.H., that the

       estimates the State presented were not sufficient to prove White’s actual costs.

       We reverse and remand for the trial court to vacate its restitution order and to

       hold a restitution hearing to determine a proper amount of restitution. 3 Garcia

       v. State, 47 N.E.3d 1249, 1253 (Ind. Ct. App. 2015) (“[W]hen the record

       contains insufficient evidence to support an order of restitution, the case may be

       remanded for the trial court to hold another hearing.”), trans. denied.


[13]   Reversed and remanded.


       Riley, J., and Robb, J., concur.




       3
         Because we are remanding for the trial court to vacate its restitution order and to hold a new restitution
       hearing, we need not address Brown’s argument that the trial court did not properly consider his ability to
       pay restitution. However, we note that when the trial court enters a restitution order as a condition of
       probation, it is required to inquire into the defendant’s ability to pay in order to prevent an indigent defendant
       from being imprisoned because of a probation violation based on the defendant’s failure to pay restitution.
       Archer, 81 N.E.3d at 217. This inquiry generally may include factors such as a defendant’s “‘financial status,
       health, and employment history.’” Dull v. State, 44 N.E.3d 823, 830 (Ind. Ct. App. 2015) (quoting Laker v.
       State, 869 N.E.2d 1216, 1221 (Ind. Ct. App. 2007)).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-441 | November 17, 2017               Page 8 of 8
