Jorge G. Carrillo v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                           FILED
    regarded as precedent or cited before any                                  Apr 26 2018, 9:03 am
    court except for the purpose of establishing                                    CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                        Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    R. Patrick Magrath                                       Curtis T. Hill, Jr.
    Madison, Indiana                                         Attorney General of Indiana
    Chandra K. Hein
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jorge G. Carrillo,                                       April 26, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    15A05-1710-CR-2413
    v.                                               Appeal from the Dearborn
    Superior Court
    State of Indiana,                                        The Honorable Sally A.
    Appellee-Plaintiff.                                      McLaughlin, Judge
    Trial Court Cause No.
    15D02-0703-FD-88
    Altice, Judge
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018               Page 1 of 6
    Case Summary
    [1]   Jorge Carrillo pled guilty to two counts of theft as Class D felonies. In addition
    to a three-year executed sentence, most of which was suspended to probation,
    the trial court ordered Carrillo to pay restitution in the amount of $10,917.46.
    On appeal, Carrillo argues the trial court abused its discretion in ordering him
    to pay restitution in the amount of $10,917.46.
    [2]   We affirm.
    Facts & Procedural History
    [3]   In 2005, Jorge Carrillo was hired as the manager for a gas station that contained
    a store. June Tucker was the bookkeeper for the store. In September 2006,
    Tucker noticed some discrepancies in the money and inventory of the store and
    began to suspect that an employee was engaged in theft. Tucker examined the
    discrepancies and eventually called the police, on October 5, 2006, when items
    she had documented were found in Carrillo’s vehicle.
    [4]   An Indiana State Police trooper responded to Tucker’s call. The trooper spoke
    with Carrillo and asked to look in Carrillo’s vehicle. Multiple items from the
    store were found in the vehicle. Carrillo initially told the trooper that he was
    returning unused inventory to the distributor but later admitted that he had
    taken the items without permission. Carrillo told the trooper that he had taken
    items from the store in the past and would occasionally pay the store for some
    of the items.
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 2 of 6
    [5]   Carrillo was arrested and charged, on March 27, 2007, with twenty-two counts
    1
    of Class D felony theft. On August 29, 2017, Carrillo pled guilty to two counts
    of theft, and the State dismissed the other twenty charges. Under the plea, the
    parties agreed that the amount of restitution would be determined by the trial
    court, and Carrillo agreed that he could be liable for restitution for the
    dismissed counts.
    [6]   On September 19, 2017, the trial court held a sentencing hearing and
    pronouncement of restitution. The trial court sentenced Carrillo and ordered
    him to pay $10,917.46 in restitution. Carrillo now appeals. Additional facts
    will be provided as necessary.
    Discussion & Decision
    [7]   Carrillo argues the trial court abused its discretion in determining the amount
    of restitution he owed Tucker. According to Carrillo, the calculation of the
    restitution amount was “improperly based upon insufficient evidence and
    contradicted evidence in the record.” Appellant’s Brief at 11.
    [8]   “[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.” Morgan v. State, 
    49 N.E.3d 1091
    , 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State, 
    981 N.E.2d 1
    While not entirely clear, it appears from the record that in November 2007, Carrillo failed to appear for a
    court date and absconded. He was rearrested approximately ten years later.
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018              Page 3 of 6
    55, 56 (Ind. 2013)). In ordering restitution, a trial court shall consider “property
    damages of the victim incurred as a result of the crime, based on the actual cost
    of repair (or replacement if repair is inappropriate).” 
    Ind. Code § 35-50-5
    -
    3(a)(1).
    [9]    A restitution order must reflect a loss sustained by the victim “as a direct and
    immediate result” of the defendant’s criminal acts. Rich v. State, 
    890 N.E.2d 44
    ,
    51 (Ind. Ct. App. 2008) (internal quotations marks omitted), trans. denied. The
    amount of actual loss is a factual matter to be determined upon the presentation
    of evidence. 
    Id. at 49
    . “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.” S.G. v. State, 
    956 N.E.2d 668
    , 683 (Ind.
    Ct. App. 2011) (citation and internal quotation marks omitted), trans. denied.
    [10]   A trial court’s order of restitution is a matter within its sound discretion, and we
    will reverse only upon a showing of an abuse of that discretion. Long v.
    State, 
    867 N.E.2d 606
    , 618 (Ind. Ct. App. 2007). An abuse of discretion occurs
    where the trial court’s decision is clearly against the logic and effect of the facts
    and circumstances before it. 
    Id.
     In determining whether the trial court abused
    its discretion, we neither reweigh evidence nor judge witness credibility. Mogg
    v. State, 
    918 N.E.2d 750
    , 755 (Ind. Ct. App. 2009). We will affirm the trial
    court’s decision if there is any evidence supporting it. Smith v. State, 
    990 N.E.2d 517
    , 520 (Ind. Ct. App. 2013), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 4 of 6
    [11]   At the restitution hearing, Tucker testified that she used a computerized
    inventory software system to compile a list of inventory that was taken from the
    store. The list showed the total value of the items stolen by Carrillo to be
    $23,539.65. The State conceded that certain amounts should be deducted from
    Tucker’s list of lost inventory, i.e., $2,500.00 received by the store in insurance
    proceeds to cover product loss and $1,934.22, which represented the cost of
    product that Carrillo had returned to the store. Carrillo submitted his own
    calculation of restitution which the trial court also admitted into evidence.
    Carrillo’s value of items lost totaled $885.79.
    [12]   In reaching its determination that the amount of restitution should be
    $10,917.46, the trial court explained:
    The Court is basing the restitution based on the sheet that is
    provided as State’s Exhibit 1[, Tucker’s inventory list,] as I’ve
    stated, I’m not counting any of the items where there was a
    vendor where checks were made. I am not counting the
    recovered items. I am not counting any of the items that appear
    to be taken from lottery, cash transferred to lottery, um, or gas
    cards charged to the store that may be fraudulent because none of
    that type of crime was asserted in the charging information but
    rather I’m looking at to [sic] the items that on the inventory
    control were presented as during the time that Mr. Carrillo was
    manager and in control of the store and the evidence has been
    clear and he admitted that he stole items in bulk form from the
    store and there is a list of inventory of items that were paid for
    but never appeared in the store for purchase to customers and
    therefore the costs of that were lost. The Court determined in
    going through this that that amount would be thirteen thousand
    five hundred and twenty-four dollars ($13,524.00). The Court is
    looking at the State’s memo which deducted a few other items
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 5 of 6
    finding that the amount that they were requesting [is] ten
    thousand nine hundred seventeen dollars and forty-six cents
    ($10,917.46). The Court is going to order restitution in that
    amount . . . .
    Transcript at 68. The trial court acted within its discretion in ordering
    restitution in the amount of $10,917.46. Carrillo’s arguments to the contrary
    amount to invitations to reweigh evidence and judge witness credibility, which
    we may not do.
    [13]   Judgment affirmed.
    Najam, J. and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 15A05-1710-CR-2413 | April 26, 2018   Page 6 of 6
    

Document Info

Docket Number: 15A05-1710-CR-2413

Filed Date: 4/26/2018

Precedential Status: Precedential

Modified Date: 4/26/2018