Brent Simcox v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 03 2015, 7:21 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Special Asst. to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Cynthia L. Ploughe
Plainfield, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brent Simcox, June 3, 2015
Appellant-Defendant, Court of Appeals Case No.
52A04-1501-CR-8
v. Appeal from the Miami Circuit
Court.
The Honorable Timothy P. Spahr,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 52C01-1405-FB-21
Baker, Judge.
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[1] Brent Simcox appeals the amount of restitution ordered by the trial court after
Simcox pleaded guilty to burglary as a class B felony. Simcox argues that there
is insufficient evidence supporting the trial court’s valuation of the victim’s
monetary loss. Finding no error, we affirm.
Facts
[2] On May 10, 2014, Simcox broke into and entered the dwelling of his parents,
Donald and Kimberly Simcox. He stole a number of items including
Kimberly’s state tax refund check and jewelry. On November 13, 2014, Simcox
pleaded guilty to class B felony burglary. The plea agreement provided that he
would serve an eight-year sentence, with two years suspended to probation, and
left the amount of restitution for the trial court to determine.
[3] On December 4, 2014, the trial court accepted the plea agreement and held an
evidentiary hearing regarding the value of the items stolen from Kimberly. At
the hearing, Kimberly testified as follows regarding the items and her estimate
of their value:
 A state tax refund check worth $288;
 Four gold watches, two of which were antiques, which Kimberly testified
were expensive watches and estimated their value at $300 apiece;
 Half-carat diamond earrings whose replacement cost would be $2,500;
 One-carat marquise diamond whose replacement cost would be $7,000;
 Marquise diamond ring purchased at a cost of $375;
 Two wedding bands that cost $700 when purchased thirty-seven years
ago, and the replacement value of Kimberly’s band, which contains a
diamond, would be $2,000;
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 Multiple necklaces belonging to Kimberly’s deceased mother, one of
which was an emerald necklace with two diamonds that her father had
made for her mother, and Kimberly estimated that the total value of all
of the necklaces was $1,000;
 A family heirloom diamond ring, and Kimberly estimated the
replacement cost would be $25,000.
Tr. p. 7-14.
[4] The trial court accepted Kimberly’s valuation of all items except for the family
heirloom ring, which it valued at $1,000 rather than $25,000, and the two
wedding bands, which it valued collectively at $2,200 rather than $2,700. The
trial court ordered Simcox to pay restitution in the amount of $15,563. Simcox
now appeals.
Discussion and Decision
[5] Simcox’s sole argument on appeal is that the trial court abused its discretion in
calculating the amount of restitution he is ordered to pay. Indiana Code section
35-50-5-3 provides that a trial court may order the defendant to make restitution
to the victim of the crime. Among other things, the trial court “shall base its
restitution order upon a consideration of . . . 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)[.]” I.C. § 35-50-5-3(a)(1). We review
restitution orders for an abuse of discretion. Bickford v. State, 25 N.E.3d 1275,
1279 (Ind. Ct. App. 2015). The evidence supporting the amount of a restitution
order is sufficient if there is a reasonable basis for the loss and it is not based on
“mere speculation or conjecture.” T.C. v. State, 839 N.E.2d 1222, 1227 (Ind.
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Ct. App. 2005). Sworn victim testimony may provide sufficient evidentiary
support for a restitution order. Blixt v. State, 872 N.E.2d 149, 154 (Ind. Ct. App.
2007).
[6] Initially, we note that Simcox does not dispute the valuation of the state refund
check ($288), the Marquise diamond ring ($375), the half-carat diamond
earrings ($2,500), or the one-carat diamond ring ($7,000). Simcox focuses on
the remaining items, arguing that because Kimberly was merely estimating their
value and had no basis upon which to support her estimation, the evidence was
mere speculation or conjecture.
[7] With respect to the four gold watches, Kimberly testified that one of them was
an antique handed down from her mother-in-law and another was her mother’s
watch. All four were gold. Although she was unsure of their precise value, she
was able to estimate that they were worth approximately $300 apiece.
[8] Regarding her mother’s necklaces, she was unable to describe each of them
with specificity. But she described one necklace that had been made for her
mother by her father when he was serving in Thailand, testifying that it had an
emerald with a diamond on either side of the emerald. Kimberly estimated that
the total value of all of the necklaces was $1,000.
[9] With respect to the wedding bands of Kimberly and her husband, she testified
that when they were purchased over thirty years ago they cost approximately
$700. She also stated that her wedding band contains a diamond and estimated
its replacement cost to be $2,000. The trial court elected to value the two bands
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collectively at $2,200 rather than the full amount of $2,700 estimated by
Kimberly.
[10] Finally, Kimberly estimated that her grandmother’s antique diamond ring was
worth approximately $25,000. The trial court found that to be far too high of a
valuation and instead valued that ring at $1,000.
[11] With respect to each of these items, Kimberly was able to describe them with
specificity and detail. Cf. T.C., 839 N.E.2d at 1227-28 (holding that where
victim was unable to state with certainty which stolen items had been returned
to him, and which returned items were in a saleable condition, the evidence was
insufficient to support the restitution order). Many of them were antiques and
the jewelry included emeralds, diamond, silver, and gold. The trial court did
not give carte blanche to Kimberly’s valuation, decreasing her estimated
amounts when it deemed it necessary. While Simcox presented argument and
cross-examined Kimberly regarding her valuation, he presented no evidence of
his own to counter Kimberly’s testimony. We find that Kimberly’s testimony
about the value of these items was not mere speculation or conjecture, and that
the trial court did not abuse its discretion in ordering Simcox to pay restitution
in the amount of $15,563.
[12] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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