State v. Tittle ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
IRMA ANN TITTLE, Appellant.
No. 1 CA-CR 13-0218
FILED 2-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2011-005789-001
The Honorable Dawn M. Bergin, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
State v. Tittle
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.
K E S S L E R, Judge:
¶1 Appellant Irma Ann Tittle (“Tittle”) was tried and convicted
of three counts of custodial interference, each a class 4 felony and
domestic violence offense, and sentenced to four years of probation. Tittle
was ordered to pay $12,504.54 to the victim (“Father”) beginning May 1,
2013 at the rate of $150 per month. Counsel for Tittle filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark,
196 Ariz. 530, 2 P.3d 89 (App. 1999).1 Finding no arguable issues to raise,
counsel requests that this Court search the record for fundamental error.
Tittle was given the opportunity to, but did not file, a supplemental brief.
For the reasons that follow, we affirm Tittle’s restitution order.
FACTUAL AND PROCEDURAL HISTORY
¶2 Tittle and Father were married until 2003 when Father filed
for dissolution of marriage. State v. Tittle, 1 CA-CR 12-0370, at *1, ¶2 2013
WL 4326614 (Ariz. App. Aug. 15, 2013) (mem. decision). When the
dissolution decree was filed in May 2003, Tittle was awarded sole custody
of the couple’s four childrena son and three daughterswith Father
having weekly parenting time. Id. Approximately six months following
the decree, Tittle moved to Texas with the children without informing
Father. Id. at *1, ¶3. As a result, Father lost contact with Tittle and the
children for more than five years. Id. at *1, ¶4. During this time, Father
incurred fees related to the maintenance of a website he created in an
effort to find his children. In February 2009, Father located the children
and petitioned the family court to modify custody. Id. From October 2009
until April 2012 Father incurred legal costs associated with the family
court proceedings. In addition to legal costs, Father also lost wages and
vacation time to attend the family court proceedings.
1 This appeal is limited to the restitution order filed March 13, 2013.
Appellant’s appeal from her convictions and probationary sentences were
affirmed in a separate appeal, State v. Tittle, 1 CA-CR 12-0370, 2013 WL
4326614 (Ariz. App. Aug. 15, 2013) (mem. decision).
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State v. Tittle
Decision of the Court
¶3 In January 2010, the family court issued a custody order
ordering Tittle and Father to share joint legal custody of the children while
allowing the children’s primary residence to remain with Tittle in Texas.
Id. The family court also ordered reunification therapy and visitation with
Father. Id. In September 2010, the family court issued a civil arrest warrant
for Tittle when she failed to appear with the minor children for a custody
hearing. Id. at *1, ¶5. Father was also granted temporary sole custody of
the children. Id. When Father returned to Texas to take custody, Tittle did
not arrive at the neutral meeting place but instead fled with the children
to a friend’s house. Id. at *1, ¶6. Tittle was arrested in May 2011. Id. After a
five-day trial, a jury found Tittle guilty of all counts based on her conduct
from 2003 through October 2010. Id. at *2, ¶8.
¶4 Restitution hearings were held December 14, 2012 and
March 8, 2013. Father introduced a spreadsheet chronologically outlining
the expenses he claimed and copies of receipts from 2009 to 2012 seeking
total restitution of $23,676.78. Father was the sole witness at both hearings
and testified regarding the expenses outlined in the spreadsheet. Tittle
objected to the inclusion of fees related to the maintenance of Father’s
website and the costs associated with the family court proceedings. Father
testified that he only included one website charge per year and that he
had at least one website completely dedicated to finding his children from
2003 to 2008.
¶5 The trial court found the website fees reasonable. The court
also overruled Tittle’s objection to the inclusion for family court expenses
reasoning the family court proceedings would not have been necessary
had Tittle not violated the law. Accordingly, the court ordered restitution
as follows: $741.562 for legal costs; $6869.483 for lost wages and vacation
time; $4173.50 for therapy fees and; $720 for website maintenance fees, for
a total award of $12,504.54.
¶6 Tittle timely filed a notice of appeal. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 (2010) and 13-
4033(A). (2010).
2 This includes $733.56 for family court legal costs and $8 for parking
during Tittle’s criminal trial.
3 Father requested $6933.48 reimbursement for lost wages and vacation
time using a $29 hourly wage estimate for 2009. In its final order, the trial
court reduced this to $28 consistent with Father’s annual raises from 2010
to 2012 as noted in a letter from his employer dated, August 22, 2012.
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State v. Tittle
Decision of the Court
STANDARD OF REVIEW
¶7 In an Anders appeal, this Court must review the entire record
for fundamental error. Error is fundamental when it affects the foundation
of the case, deprives the defendant of a right essential to her defense, or is
an error of such magnitude that the defendant could not possibly have
had a fair trial and the error prejudiced the defendant. See State v.
Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v.
Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). This Court will
uphold the trial court’s restitution award if the record substantially
supports the court’s conclusion that the award is reasonably related to the
victim’s loss. See State v. Howard, 168 Ariz. 458, 460, 815 P.2d 5, 7 (App.
1991). “The burden of proof applicable to restitution is proof by a
preponderance of the evidence.” In re Stephanie B., 204 Ariz. 466, 470, ¶ 15,
65 P.3d 114, 118 (App. 2003).
DISCUSSION
¶8 Tittle was present at the restitution hearings and was
represented by counsel. Tittle was present for the examination of State’s
witness, Father, at both the December 2012 and March 2013 restitution
hearings, and was provided a copy of the spreadsheet and receipts at that
time. Tittle’s attorney cross-examined Father at the continued restitution
hearing.
¶9 A trial court “may impose restitution only on charges for
which a defendant has been found guilty, to which he has admitted, or for
which he has agreed to pay.” State v. Lewis, 222 Ariz. 321, 324, ¶ 7, 214
P.3d 409, 412 (App. 2009) (internal quotation marks and citation
omitted). “A loss is recoverable as restitution if it meets three
requirements: (1) the loss must be economic, (2) the loss must be one that
the victim would not have incurred but for the criminal conduct, and (3)
the criminal conduct must directly cause the economic loss.” State v.
Madrid, 207 Ariz. 296, 298, ¶ 5, 85 P.3d 1054, 1056 (App. 2004). A trial court
can award restitution to victims for lost wages and annual leave time lost
as a direct result of the defendant’s criminal conduct. See Ariz. Const. art.
2, § 2.1(A)(8); In re Ryan A., 202 Ariz. 19, 25, ¶ 29, 39 P.3d 543, 549 (App.
2002).
¶10 The record supports the restitution award. Tittle was found
guilty of custodial interference and ordered to pay restitution for
economic losses associated with her criminal conduct. First, the trial court
properly considered Father’s lost wages and vacation time as well as costs
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State v. Tittle
Decision of the Court
for reunification therapy because these costs were incurred as a result of
Tittle’s criminal conduct. Second, the court properly awarded fees related
to the website. Tittle objected to the fees asserting that the website was
used for personal reasons such as promoting his book and linking to other
personal websites. The trial court found Father’s testimony regarding the
use of his website credible and Tittle did not present evidence to support
her allegation that the site was maintained for alternative reasons. We
defer to the trial court on determinations of witness credibility; thus,
including Father’s website fees in calculating restitution was not
fundamental error. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972
P.2d 676, 680 (App. 1998).
¶11 Third, the trial court properly awarded costs associated with
the family court proceedings. Tittle objected to the costs on the grounds
that the issues addressed in family court expanded beyond those directly
related to Tittle’s criminal conduct. Father testified that the family court
matters related to changing custody and recalculating child support as a
consequence of Tittle’s taking the children from him and her subsequent
incarceration. The trial court overruled Tittle’s objection. Had the criminal
conduct not occurred, the custody and child support orders would have
continued as ordered in the original decree. There is no evidence in the
record that the family court also awarded Father reimbursement for
attending those hearings. Therefore, the trial court’s inclusion of the
family court costs in calculating restitution was not fundamental error.
¶12 The trial court’s calculation of restitution also was accurate
and supported by evidence submitted by the State. The spreadsheet
prepared by Father noted the date, dollar amount, and a brief description
of each expense. Attached to the spreadsheet were receipts, invoices, bank
statements, and correspondence to support each expense. The only
expenses that were not supported by a specific receipt were monthly
charges for maintenance of the website and some postage and filing fees.
In addition to being noted on the spreadsheet, charges without a
corresponding receipt were supported by Father’s testimony describing
the purpose of the expense and the reason he did not have a receipt or
invoice. Because the trial court did not err in calculating the total expenses
incurred by Father, and because each expense was adequately supported
by competent evidence, there is no fundamental error.
CONCLUSION
¶13 After careful review of the record, we find no meritorious
grounds for reversal or modification of Tittle’s restitution order. The
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State v. Tittle
Decision of the Court
evidence supports the order, the proceedings were conducted in
conformity with the Arizona Rules of Criminal Procedure, and Tittle was
present and represented at all stages of the restitution proceedings below.
Accordingly, we affirm Tittle’s restitution order.
¶14 Upon the filing of this decision, counsel shall inform Tittle of
the status of the appeal and her options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Tittle shall
have thirty days from the date of this decision to proceed, if she so desires,
with a pro per motion for reconsideration or petition for review.
:mjt
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