In Re Brigham H. ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE BRIGHAM H.
No. 1 CA-JV 21-0097
FILED 10-7-2021
Appeal from the Superior Court in Mohave County
No. S-8015-JV-2020-00073
The Honorable Megan A. McCoy, Judge Pro Tempore
AFFIRMED
COUNSEL
E.M. Hale Law, Lakeside
By Elizabeth M. Hale
Counsel for Appellant
Mohave County Attorney’s Office, Kingman
By Deborah L. Herbert
Counsel for Appellee
IN RE BRIGHAM H.
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Brigham H. appeals from the juvenile court’s restitution
award to two victims for items stolen and damaged during a burglary,
damage to a shop building, and the cost of new home security cameras. We
conclude the juvenile court did not abuse its discretion by awarding the
replacement cost of the stolen or damaged property or the cost of the new
home security cameras and affirm the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 In January 2020, Brigham and a codefendant1 entered Daniel’s
property and stole three guns, several knives, ammunition, and a pair of
binoculars.2 They took the stolen items to a shop owned by the other victim,
Gary, and fired the guns into the empty building damaging the roof and
two doors.
¶3 Eventually, the State filed a delinquency petition charging
Brigham with one count of minor in possession of a firearm, one count of
theft, one count of criminal damage, two counts of burglary, and four
counts of theft of a firearm. Brigham entered into a disposition agreement,
admitting to the count of criminal damage and three counts of firearm theft.
The agreement required Brigham to pay restitution for the economic loss
for all counts.
¶4 To determine the restitution amount, the court held a
contested restitution hearing. Gary submitted a restitution request totaling
1 The codefendant has also appealed from the restitution award. See
In re Monteith C., No. 1 CA-JV 21-0082, 2021 WL 4478643 (Ariz. App. Sept.
30, 2021).
2 To protect the identity of the victims, we refer to them by
pseudonyms.
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IN RE BRIGHAM H.
Decision of the Court
nearly $5000. He reduced this request by $400 at the hearing. Gary testified
he sought $600 to replace a hollow metal door with several bullet holes.
After seeking bids for its replacement, he arrived at the dollar amount and
claimed the door could not be repaired because it was made of heavy gauge
metal. To cover the cost of painting the replacement door, he requested
another $420.
¶5 Next, Gary testified he was seeking about $3400 to replace a
garage door with a bullet hole in its lower section. First, he tried to replace
the damaged area, but it was impossible because that section was no longer
manufactured. And although the bullet hole could be repaired, it would not
look the same as before. Merely patching it would leave a visible mark, and
the repair would not last. As a result, he sought to replace the whole door.
Finally, Gary requested $50 to cover payment to an employee who repaired
the damaged roof.
¶6 Daniel submitted a restitution request for $4750. Of that
amount, he was seeking $2100 to replace three stolen guns that were
returned damaged. He testified that he had paid $1000 for the first gun,
estimated the price for replacing the second gun at $1000, and valued the
third gun at $100. Although Daniel acknowledged the first two guns could
be repaired, he wanted replacements because of the excellent condition the
firearms were in before they were stolen. Daniel had no receipts for any of
the guns.
¶7 A defense investigator testified that Daniel’s first gun’s firing
pin could be replaced for under $50, but this did not account for other
damage the weapon might have sustained. The investigator also testified
that the second gun retailed between about $600 and $700. In addition,
Brigham and his codefendant testified they returned the guns in a similar
condition to when they stole them.
¶8 Daniel sought another $500 for the cost of security cameras he
installed around his house after the burglary. He thought the cameras
would help his family deal with their anxiety and fear, and his wife and
daughters would feel safer. He also believed the cameras would help
identify potential burglars, so he would not be left wondering about their
identities.
¶9 Daniel also requested $300 for a damaged scope and testified
the amount was based on what his wife told him it cost. Next, he asked for
$150 for damaged binoculars, basing the amount on what he paid for them.
He had no receipt for either item. He also estimated the value of stolen
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IN RE BRIGHAM H.
Decision of the Court
ammunition at $800 and a stolen hunting knife at $200. Finally, he requested
$700 for lost wages.
¶10 The juvenile court found both victims’ testimony credible and
their requests reasonable. Thus, the court ordered Brigham, his
codefendant, and their parents to pay restitution of $4750 to Daniel and
nearly $4500 to Gary, with credit for any payment made by Brigham, the
codefendant, or a parent.
¶11 Brigham appealed, and we have jurisdiction under A.R.S.
§§ 8-235(A) and 12-120.21(A)(1).
DISCUSSION
¶12 On appeal, Brigham argues the juvenile court abused its
discretion by (1) ordering restitution above the fair market value of the
actual losses incurred; (2) ordering restitution for the cost of new security
cameras not directly related to an actual loss suffered by the victims;
(3) ordering restitution in an amount not supported by a preponderance of
the evidence; and (4) failing to inquire into Brigham’s ability to pay
restitution.
¶13 We will not disturb the court’s adjudication of a juvenile
delinquent absent an abuse of discretion. In re Kristen C., 193 Ariz. 562, 563,
¶ 7 (App. 1999); see also State v. Slover, 220 Ariz. 239, 242, ¶ 4 (App. 2009)
(“A trial court abuses its discretion if it misapplies the law or exercises its
discretion based on incorrect legal principles.”). We will uphold a
restitution award if it “bears a reasonable relationship to the victim’s loss.”
State v. Lindsley, 191 Ariz. 195, 197 (App. 1997). We view the facts in the light
most favorable to affirming the juvenile court’s findings. In re Andrew A.,
203 Ariz. 585, 586, ¶ 5 (App. 2002).
A. The Juvenile Court Did Not Abuse Its Discretion by Failing to Use
the Fair Market Value in Awarding Restitution.
¶14 The “court has wide discretion in setting restitution based on
the facts of each case.” State v. Dixon, 216 Ariz. 18, 21, ¶ 11 (App. 2007)
(quoting State v. Ellis, 172 Ariz. 549, 551 (App. 1992)). While “the fair market
value of the victim’s property at the time of the loss will realistically reflect
the actual loss” in most cases, “[f]air market value will not always be the
appropriate standard.” State v. Ellis, 172 Ariz. 549, 551 (App. 1992). A court
“has discretion to use other measures of economic loss when fair market
value [does] not make the victim whole.” Id. at 550. In some cases, “the
original purchase price, or even the replacement cost might be considered.”
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Decision of the Court
Id. at 551. But because restitution is intended to make the victim whole, not
punish the defendant, the court may have to reduce the victim’s loss by any
benefits conferred. Gilbert Prosecutor’s Office v. Downie, 218 Ariz. 466, 469,
¶ 13 (2008). Courts may “credit victims with the value of returned property
when considering restitution.” Id. at ¶ 12.
¶15 Brigham argues the juvenile court should have compared the
fair market value of Daniel’s items when they were stolen to the fair market
value of his items that were returned. But returning stolen items in a lesser
condition does not benefit the victim and thus does not require the court to
credit that return. Here, the juvenile court found that replacement cost
would be the appropriate measure for Daniel’s items because the items
were in good condition when stolen and damaged upon return. Similarly,
the juvenile court found that Gary could not be “made whole” without
replacing both damaged doors. As a result, a restitution order for the
replacement cost of the items and doors was appropriate. The juvenile court
did not abuse its discretion by using replacement costs.
B. The Juvenile Court Did Not Abuse Its Discretion by Awarding
Restitution for New Security Cameras.
¶16 A court must “require the convicted person to make
restitution . . . in the full amount of the economic loss as determined by the
court.” A.R.S. § 13-603(C). In ordering restitution for economic loss, the
court “shall consider all losses caused by the criminal offense or offenses
for which the defendant has been convicted.” A.R.S. § 13-804(B); see also
A.R.S. § 13-105(16) (“‘Economic loss’ means any loss incurred by a person
as a result of the commission of an offense.”). But economic loss does not
include consequential damages. A.R.S. § 13-105(16).
¶17 Thus, a court may order restitution only if: (1) the loss is
economic; (2) the loss would not have occurred but for the defendant’s
criminal offense; and (3) the criminal conduct directly caused the economic
loss, such that the loss was not consequential. State v. Wilkinson, 202 Ariz.
27, 29, ¶ 7 (2002).
¶18 The cost of installing new home security cameras is directly
attributable to criminal conduct if it was “incurred ‘in an effort to restore
the victim’s equanimity’ following the criminal offense.” State v. Quijada,
246 Ariz. 356, 369 ¶ 44 (App. 2019) (quoting State v. Brady, 169 Ariz. 447, 448
(App. 1991)).
¶19 Brigham argues the security camera expenses were not
directly caused by the criminal conduct and cannot be part of the restitution
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IN RE BRIGHAM H.
Decision of the Court
order. But Daniel’s testimony shows that he installed the security cameras
to restore his equanimity following the burglary. He hoped the cameras
would provide him the peace of mind in knowing his family feels safe and
any future crimes could be more smoothly resolved. As a result, the
criminal conduct caused the installation cost directly, and restitution was
appropriate.
C. The Juvenile Court Did Not Abuse Its Discretion by Finding
Daniel’s Requested Amounts Proven by a Preponderance of the
Evidence.
¶20 “The State has the burden of proving a restitution claim by a
preponderance of the evidence.” State v. Lewis, 222 Ariz. 321, 324, ¶ 7 (App.
2009). Brigham argues the State failed to meet this burden because Daniel
could not recall the brand of some of the stolen items, nor could he provide
any receipts. No such evidence is required. The juvenile court could
evaluate Daniel’s testimony and determine that his claim was credible,
reasonable, and supported by the evidence. See State v. Stutler, 243 Ariz. 128,
131, ¶ 8 (App. 2017) (victim’s testimony and loss affidavit held sufficient to
support a $900 award). This court does not reweigh the evidence presented.
In re Andrew A., 203 Ariz. at 587, ¶ 9.
D. The Juvenile Court Did Not Commit Reversible Error by Failing
to Inquire into Brigham’s Ability to Pay Restitution.
¶21 When a juvenile is adjudicated delinquent, the court must,
“after considering the . . . earning capacity of the juvenile,” order the
juvenile to make restitution to the victim. A.R.S. § 8-344(A). In ordering
restitution under A.R.S. § 8-344(A), the court may also order the juvenile’s
parents to make restitution to the victim. A.R.S. § 8-344(C). If the court
orders the juvenile’s parents to make restitution, the court must still order
the juvenile to make restitution “regardless of the juvenile’s insufficient
earning capacity.” Id.
¶22 Here, the only evidence of Brigham’s earning capacity is the
testimony of Brigham’s legal advocate that Brigham is “working for his
restitution and the fines. He’s working hard. He would like to pay the
restitution.” But any harm caused by the court’s failure to inquire further
would not harm Brigham, who must make restitution regardless of his
earning capacity. Instead, it would harm Brigham’s parents, who were
joined in the restitution order without inquiry into Brigham’s ability to pay.
Brigham’s parents, however, are not parties to this appeal. We thus do not
address the issue further.
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IN RE BRIGHAM H.
Decision of the Court
CONCLUSION
¶23 We affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
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