In re Cody H. ( 2017 )

In re Cody H., No. 27, September Term, 2016. Opinion by Greene, J.
JUVENILE JUSTICE—RESTITUTION
Under § 11-603(a)(2)(iii) of the Criminal Procedure Article, a court may order restitution in a
criminal or juvenile case if, “as a result of the crime or delinquent act, the victim suffered . . .
loss of earnings.” A victim is presumed to have a right to restitution under § 11-603(a) if the
victim or the State requests restitution and the court is presented with competent evidence of a
loss of earnings. See CRIM. PROC. § 11-603(b). The juvenile court awarded restitution for loss
of earnings for the period between September 2014, when the victim’s injury occurred, and
April 29, 2015 the date of the restitution hearing before the Magistrate. The restitution ordered
did not include any amount for the victim’s future loss of earnings, i.e., the period after the date
of the restitution hearing. Notably, the General Assembly did not create an express limitation
on restitution for future loss of earnings in § 11-603(a)(2)(iii), and an award for future loss of
earnings could have been proper in this case as long as it was not speculative and did not cover
losses not reasonably certain to occur. We shall hold that the award of restitution in this case
was within the confines of the restitution statute and affirm the judgment of the Court of Special
Appeals.
Where a loss of earnings claim was proven by testimony, regarding the employment and the
inability to work, and a letter from the employer regarding the duration and wage figures, there
was competent evidence to support an order of restitution for loss of earnings. Here, although
the letter from the employer stated “approximate” hours and wages, the evidence was
nonetheless sufficient to support a claim for loss of earnings. The standard for restitution is not
one of absolute certainty or precision. Rather, there must be competent evidence showing
entitlement to and the amount of lost earnings or expenses reasonably certain to be incurred by
the victim as a direct result of the crime or delinquent act. Further, such a claim must not be
speculative.
Circuit Court for Baltimore County IN THE COURT OF APPEALS
Case No. J14-001852
Argued: November 4, 2016 OF MARYLAND
No. 27
September Term, 2016
______________________________________
IN RE CODY H.
______________________________________
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: March 24, 2017
This case concerns a restitution award entered following a juvenile delinquency
proceeding involving Petitioner, Cody H. (“Cody”). On February 19, 2015, a family
magistrate of the Circuit Court for Baltimore County (“the magistrate”) found that Cody
had committed the delinquent act of assault by punching a sixteen year-old victim, Zachary
F. (“Zachary”), in the face and breaking his jaw. At the disposition hearing held on April
29, 2015, the magistrate made a recommendation for a restitution award of $1,489.61 to
the victim for medical expenses related to the assault. The magistrate did not award
restitution for loss of earnings because the magistrate found that claim to be speculative.
The State filed exceptions to the recommendation. An exceptions hearing was held before
a juvenile court judge on June 15, 2015. The judge sustained the State’s exception on the
issue of restitution and imposed an additional restitution amount of $5,000 for Zachary’s
lost earnings.
Cody argues that the restitution statute, Md. Code (1974, 2008 Repl. Vol.), § 11-
603 of the Criminal Procedure Article, does not permit the court to order restitution for lost
wages to be earned in the future and that the Court of Special Appeals erred in holding that
the restitution ordered in this case was supported by competent evidence. For the reasons
that follow, we shall hold that the restitution award in this case was proper under § 11-603.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2014, a group of high school students, including Cody and Zachary,
attended a party where alcohol was consumed. Zachary drank a large amount of alcohol
and fell asleep in a chair at the party. Zachary later awoke to Cody spraying him with some
sort of liquid from a bottle, which Zachary later testified he believed contained a cleaning
solution. Zachary and Cody engaged in an altercation when Zachary attempted to take the
spray bottle away from Cody. During the altercation, Cody punched Zachary in the jaw.
The day after the party, Zachary sought medical care for his jaw, which was fractured in
two places. To treat the fractures, Zachary had a metal plate surgically implanted to allow
his jaw to properly heal. Zachary’s jaw was wired shut for five-to-six weeks and Zachary
then underwent a second surgery to remove wires from his jaw. Zachary missed
approximately three weeks of school at the beginning of the 2014 – 2015 school year due
to his injury. Zachary and his mother reported the incident to the Baltimore County Police
on October 7, 2014.
The Respondent, the State of Maryland (“the State”) instituted juvenile delinquency
proceedings against Cody. On behalf of Zachary, the State sought a restitution award of
$1,492.61 for Zachary’s medical expenses and $6,400.00 for Zachary’s loss of earnings.
At the adjudicatory hearing held on February 19, 2015, Cody admitted to punching Zachary
but alleged provocation. The juvenile court found that Cody unlawfully assaulted Zachary.
A disposition and restitution hearing was held on April 29, 2015. At the disposition
hearing, the magistrate presiding received testimony regarding Zachary’s medical
treatment and expenses and his lost earnings. Zachary testified that he was scheduled to
work at Roseda Farm as part of a work-study program during the 2014 –2015 school year.
The program was to begin on the first day of school and to continue for approximately
forty weeks. Zachary would have earned $6,400 as part of this program. Zachary testified
that he was not able to participate in the program because the vibrations from farm
2
machinery he would be required to operate would cause damage to his healing jaw.
Zachary’s father also testified as to the program in which Zachary would have participated.
At the restitution hearing, the State introduced a letter from the office manager at
Roseda Farm, Marcia Bryant, in support of Zachary’s claim for loss of earnings. The letter
read as follows:
To Whom this May Concern:
Zachery [sic] [F.] was an employee of Roseda Farm starting in August 2014.
Zachery was going to be on the work study program at Hereford High School
and would have continue[d] working at Roseda Farm for the 2014/2015
school year. Zachery would have worked approximately 20 hours a week for
approximately 40 weeks. Zachery would have made $6,400 if he would have
continued at Roseda Farm.
Sincerely,
Marcia Bryant
Office Manager
The magistrate recommended a restitution award of $1,489.61 for medical expenses
and did not recommend any restitution for Zachary’s lost earnings. Despite being
persuaded that Zachary had planned to work at Roseda Farm, and noting that Zachary’s
testimony regarding the employment was alone sufficient to reach this conclusion, the
magistrate declined to recommend a restitution award for loss of earnings. The magistrate
found that the claim for $6,400 in lost earnings was speculative because nothing in the
record established the duration Zachary would have otherwise continued to work at Roseda
Farm or that Zachary was unable to find alternative employment. Further, the magistrate
noted that the loss “certainly had not yet occurred.”
3
The State filed exceptions to the magistrate’s restitution order. An exceptions
hearing took place on June 15, 2015 before a judge of the Circuit Court for Baltimore
County, sitting as a juvenile court. The judge concluded that the State had established that
Zachary was unable to participate in the work-study program due to injuries sustained in
the assault by Cody. In response to Cody’s argument that the loss of earnings was
speculative, the judge commented that Zachary’s claim was not any more speculative than
any other lost wages claim, adding, “wouldn’t that be the argument on any claim for lost
wages, that the person could have been fired, they could have quit, they could have left for
another employment?” In making his determination, the judge relied on Zachary’s
testimony as evidence of Zachary’s inability to work, commenting: “You’ve got his
testimony that the job required him to work, to operate machinery that the machinery
involved vibrations and the vibrations from the machinery would adversely impact the
healing of his jaw. That’s, that was his testimony as to why he was unable to work.”
The judge issued the following ruling:
I do think that the [magistrate] and find that the [magistrate] was clearly
erroneous in finding that an Order of lost earnings in the case was
speculative. The victim in the case had been employed by this employer at
the rate of $8.00 an hour. That [the Roseda Farm letter] clearly demonstrates
that the employer was offering continued employment to the victim, Zachary
[F.], for the entire school year that he was enrolled at Hereford High,
beginning in September, or they have August of 2014 for a period of forty
weeks. There’s nothing in the testimony in the transcript that as of the date
of the hearing in front of Magistrate McAllister, which was April the 29th of
2015, that at any point in time he was able to go back to work. I’ll reduce
the claim based on the fact that at least through April the 29th he was unable
to work, so I’m going to give him the four months of April, through April,
from the beginning of September through the end of the year. So that’s eight
months times 4.3 weeks. I’m going to find that’s thirty-two weeks, at
minimum, at $8.00 an hour, times twenty hours a week, so I have $640 times
4
eight hours, $8.00 rather is his lost wage claim, which I total at being $5,120.
I’ll give the Defendant the further benefit and round the number down to
$5,000 and enter an Order in the case. Restitution for lost wages against the
Respondent and the parent in the amount of $5,000 and reduce that to an
Order.
Thus, the juvenile court awarded restitution for loss of earnings for the 32-week period
between Zachary’s injury in September 2014 and the restitution hearing before the
magistrate on April 29, 2015. The restitution award did not include any amount for
Zachary’s future loss of earnings, i.e., the remaining eight-week period in the work study
program which occurred after the restitution hearing.
Cody noted an appeal to the Court of Special Appeals, arguing that the juvenile
court abused its discretion by ordering restitution in the amount of $5,000 for Zachary’s
loss of earnings because the magistrate erred by admitting the Roseda Farm letter and
because Zachary’s lost earnings were not a “direct result” of Cody’s delinquent act. The
Court of Special Appeals, in an unreported opinion, concluded that the information in the
Roseda Farm letter was corroborated by the testimony of Zachary and of his father, which
supported the reliability of the letter. The court thus held that the letter was sufficiently
reliable to satisfy the relaxed evidentiary standard applicable to juvenile proceedings. The
intermediate appellate court also found it significant that the magistrate expressed that the
letter was irrelevant to his determination of the facts.1 The Court of Special Appeals also
held that the evidence adduced at trial constituted a competent basis for the court to
reasonably conclude by a preponderance of the evidence that Zachary’s loss of earnings
1
The magistrate explained that he was persuaded of Zachary’s planned participation in the
work-study program by Zachary’s testimony alone.
5
was a direct result of the delinquent act. The court noted the possibility that additional
evidence could have been introduced at the hearing to provide additional support for the
juvenile court’s conclusion, but explained that it is not within the purview of the appellate
courts to consider additional ways in which the State could have bolstered the restitution
claim. Accordingly, the intermediate appellate court affirmed the juvenile court’s order.
Cody petitioned this Court for review and we granted certiorari to answer the
following questions:
1. Does Maryland’s restitution statute allowing for recovery of lost earnings
“as a direct result of the crime” permit the court to order restitution for
lost earnings to be earned in the future and for lost earnings for a
randomly selected period of time?
2. Did the Court of Special Appeals err in finding that competent evidence
was introduced to support the claim for eight months of lost wages?
In re Cody, 448 Md. 724, 141 A.3d 135 (2016). For the reasons that follow, we shall affirm
the judgment of the Court of Special Appeals and uphold the restitution award issued by
the juvenile court.
DISCUSSION
Standard of Review
We ordinarily apply the abuse of discretion standard in reviewing a trial court’s
order of restitution. Silver v. State, 420 Md. 415, 427, 23 A.3d 867, 874 (2011). See also
Wiredu v. State, 222 Md. App. 212, 228, 112 A.3d 1014, 1023 (2015) (“The decision to
order restitution pursuant to [§11-603] and the amount lie within the trial court’s sound
discretion and we review the trial court’s decision on the abuse of discretion standard.”).
However, because the first question presented by Cody involves statutory interpretation,
6
we review the first issue de novo.2 Goff v. State, 387 Md. 327, 337, 875 A.2d 132, 138
(2005) (explaining that questions of statutory interpretation are questions of law and are
reviewed de novo).
Legal Contentions
Cody contends that § 11-603 does not permit courts to order restitution for a future
loss of earnings. To support this contention, Cody argues that the operative verbs within
the statutory scheme are written in the past tense and that this indicates that the General
Assembly intended to authorize a restitution order for financial loss that has already been
incurred. Cody argues that compensation for the loss of future earnings is a civil remedy
and involves complex calculations that are too difficult to assess in a proceeding ancillary
to a criminal sentencing. It is Cody’s position that the judge abused his discretion in
ordering the restitution because it was speculative and it was based upon an approximation
of how many hours, and for what pay, Zachary might work. Finally, Cody asserts that the
evidence introduced to support the restitution claim was not competent evidence. Cody
claims that the record is devoid of any evidentiary basis for determining that Zachary’s
inability to earn money was connected to his injury sustained during the assault.
The position of the State is that the order of restitution for lost earnings was a proper
exercise of the juvenile judge’s discretion. The State argues that even if the statute does
2
The juvenile court had competent evidence before it of both past (from the injury to the
hearing) and future (beyond the hearing) loss of earnings. As discussed below, the court
only awarded restitution for past loss of earnings, but we are called to interpret the statute
and determine whether it encompasses restitution claims for future loss of earnings.
7
not allow for future lost wages, the outcome in this case is unaffected because the judge
ordered restitution for lost wages during a time period that had already occurred. Further,
the State contends that this Court need not, and should not, consider whether restitution for
future earnings lost beyond the restitution hearing fall under the statute. The State urges,
however, if we consider the issue, we should hold that the restitution statute covers future
loss of earnings. The State also maintains that Cody’s argument that the judge’s calculation
resulted in a speculative amount is without merit because competent evidence established
the amount of weeks for which Zachary would work, the amount of hours per week, and
the amount of compensation he would receive. The State adds that the judge reduced the
amount of restitution for loss of earnings to reflect the time period which had expired at
the time of the initial restitution hearing and further reduced the amount for Cody’s benefit
to account for the approximation. The State posits that Cody’s attempt to “manufacture
uncertainty” should fail because entitlement to “restitution should not be premised on the
ability to identify an amount with microscopic precision.” The State explains that there is
a presumption that a victim is entitled to restitution where competent evidence is introduced
and that Zachary’s testimony that he was prevented from working in the program because
of his injury was competent evidence to justify an order of restitution.
Amicus Curiae, Maryland Crime Victims’ Resource Center, Inc., submitted a brief
in this case contending that § 11-603 allows judgments of restitution for future loss of
earnings. Amicus Curiae argues that the plain language of the statute does not limit
restitution to past loss of earnings, and that our case law and the legislative history of the
statute confirm that it permits restitution for a future loss of earnings.
8
Restitution for Loss of Earnings
“In Maryland, restitution may be ordered, with qualifications, as a direct sentence
for a crime or delinquent act, in addition to any other penalty prescribed by the underlying
sentencing or remedial statute.” Pete v. State, 384 Md. 47, 55, 862 A.2d 419, 423 (2004).
Under § 11-603(a)(2)(iii) of the Criminal Procedure Article, a Court may order restitution
in a criminal or juvenile case if, “as a result of the crime or delinquent act, the victim
suffered . . . loss of earnings.” A victim is presumed to have a right to restitution under §
11-603(a) if the victim or the State requests restitution and the court is presented with
competent evidence of a loss of earnings. See CRIM. PROC. § 11-603(b). See also In re
Tyrell A., 442 Md. 354, 364, 112 A.3d 468, 474 (2015) (explaining the statutory
presumption of restitution). “Restitution under this section ‘is a criminal sanction, not a
civil remedy.’ It serves the familiar penological goals of retribution and deterrence, and
especially rehabilitation.” McDaniel v. State, 205 Md. App. 551, 558, 45 A.3d 916, 920
(2012) (internal citations omitted). See also State v. Stachowski, 440 Md. 504, 512, 103
A.3d 618, 623 (2014). “It is long established that in Maryland, ‘juvenile courts have broad
discretion to order restitution, either against the juvenile himself, a parent, or both.’” In re
Earl F., 208 Md. App. 269, 276, 56 A.3d 553, 557 (2012) (quoting In re Delric H., 150
Md. App. 234, 249, 819 A.2d 1117, 1126 (2003)).
Restitution under [§ 11-603] serves several objectives, including: (1)
rehabilitation of the defendant; (2) compensation of the victim; and (3)
penalizing the transgressor. One purpose is to compensate victims who have
been injured or who have suffered property loss as a result of the wrongful
acts of a minor[.] Restitution can impress upon the [juvenile] the gravity of
the harm he has inflicted upon another[,] and provide an opportunity for him
9
to make amends. As such, compensation of the victim is an important factor
to consider in the overall goal of rehabilitating the juvenile respondent.
In re Delric H., 150 Md. App. at 250–51, 819 A.2d at 1126–27 (internal citations omitted).
We first consider whether the restitution statute permitted the juvenile court to order
restitution for loss of earnings on the facts of this case. We are thus required to interpret §
11-603 “to ascertain and implement the legislative intent, which is to be derived, if possible
from the language of the statute . . . itself.” Downes v. Downes, 388 Md. 561, 571, 880
A.2d 343, 349 (2005). The provision at issue allows a court to order restitution where “as
a result of the crime or delinquent act, the victim suffered . . . loss of earnings.” CRIM.
PROC. § 11-603(a)(2)(iii). The General Assembly did not define the term “loss of earnings”
in the restitution statute. Nor does an examination of the legislative history of § 11-603
reveal a definition for this term. Therefore, we read “the plain language of the statute and
[the] ordinary, popular understanding of the English language dictates the interpretation of
its terminology.” Bowen v. City of Annapolis, 402 Md. 587, 613, 937 A.2d 242, 257 (2007)
(quoting Kushell v. Dept. of Nat. Res., 385 Md. 563, 576–78, 870 A.2d 186, 193–94
(2005)). In determining the ordinary meaning of words, we have found it helpful to consult
their dictionary definitions. Bd. of Ed. of Prince George’s Cnty. v. Marks-Sloan, 428 Md.
1, 28, 50 A.3d 1137, 1153 (2012). See also Ali v. CIT Tech. Fin. Servs., Inc., 416 Md. 249,
260–62, 6 A.3d 890, 896–98 (2010) (“When the Court can ascertain the Legislature’s intent
from the plain meaning of the verbiage, the Court need not delve deeper . . . . In seeking
to apply the plain-meaning rule, it is proper to consult a dictionary or dictionaries for a
term’s ordinary and popular meaning.”).
10
“Loss” is defined in The Random House Dictionary of the English Language 1137
(2d ed. 1987) as “detriment, disadvantage, or deprivation from failure to keep, have, or
get[.]” “Earnings” is defined as “money earned; wage; profits.” The Randomhouse
Dictionary of the English Language 613 (2d ed. 1987). When interpreting legislative
intent, “we apply the language [of the statute] as written and in a commonsense manner.”
Downes, 388 Md. at 571, 880 A.2d at 343. Here, Zachary had scheduled employment
through which he would have been paid wages or “earnings.” Zachary suffered a loss of
earnings to the extent that his injuries deprived him of the opportunity to work and earn the
wages, and to the extent that he failed to “get” the wages to which he was entitled.
Therefore, under the plain language of § 11-603, Zachary suffered a “loss of earnings.”
A basic principle of statutory construction is that we read a statute in a manner that
neither broadens nor narrows the meaning of the plain language. Condon v. State of
Maryland-Univ. of Md., 332 Md. 481, 491, 632 A.2d 753, 758 (1993) (“[A] court may not
add or delete words to make a statute reflect an intent not evidenced in that language[.]”).
The plain language of the statute does not include a limitation on future loss of earnings,
nor does it differentiate between past and future losses of earnings. If the General
Assembly had intended to create such a limitation or distinction, it would have
affirmatively done so. See id. Thus, we conclude that there is no express statutory
limitation on restitution for future loss of earnings.
There are, however, express statutory requirements that the loss or expense must be
a direct result of the crime or delinquent act and that the claim for restitution must be shown
11
by competent evidence.3 CRIM. PROC. § 11-603. Moreover, our decisional law also places
limitations on a judge’s discretion to order restitution. In order for restitution to be proper,
the claim for restitution cannot be speculative. McDaniel, 205 Md. App. at 563, 45 A.3d
at 922 (“Our interpretation [that the term ‘losses’ covers expenses not yet incurred by the
time of the hearing] does not mean that mere speculative claims will satisfy the statutory
requirements for recovery.”). Furthermore, the restitution cannot cover things that are not
certain to occur in the future. Id. (“A victim must still present competent evidence that
the expenses are reasonably certain to be incurred.”) (emphasis added).
In order to confirm that we are correct in our conclusion that an exclusion on future
damages is not one of the statutory or decisional law limitations on restitution, we examine
briefly the legislative history of § 11-603 as well as our case law. See Bourgeois v. Live
Nation Entm’t, Inc., 430 Md. 14, 27, 59 A.3d 509, 516 (2013) (“Legislative history may be
considered in an effort both to confirm what appears to be a clear intent from the language
itself and to discern legislative intent when that intent is not entirely clear from the statutory
language.”); Ali, 416 Md. at 261, 6 A.3d at 897 (“Notwithstanding the outcome of a plain-
meaning analysis, however, [i]n the interest of completeness . . . we may look at the
purpose of the statute and compare the result obtained by use of its plain language with that
which results when the purpose of the statute is taken into account.”) (quotation omitted).
3
That the legislature included express limitations on restitution for loss of earnings but did
not expressly create a limitation on loss of future earnings is evidence that the legislature
intended for the statute to cover both past and future losses.
12
Prior to 1997, the predecessor to § 11-603, then codified as Article 27, § 807, did
not mention juveniles. Md. Code Ann. (1957, 1997 Repl. Vol.) § 807 of Article 27. Rather,
a separate statute addressed juvenile restitution, which up until 1996, was codified at § 808.
At that time, there was no provision in § 808 (the juvenile restitution statute) regarding loss
of income. In re Zephrin D., 69 Md. App. 755, 761, 519 A.2d 806 (1987), superseded by
statute as stated in In re Jason W., 94 Md. App. 731, 619 A.2d 163 (1993). However, in
1997, the General Assembly passed Senate Bill 173, which repealed § 808 and rewrote §
807 to apply to both criminal defendants and juveniles. Md. Laws 1997, Chs. 311 and 312,
§ 1. See also In re John M., 129 Md. App. 165, 173 n.2 , 741 A.2d 503, 507 n.2 (1999)
(“Section 1, chs. 311 and 312, Acts 1997, effective October 1, 1997, repealed the former §
808 of Article 27 and rewrote Article 27, § 807. Substantive portions of the superseded §
808, including those at issue in this case, were included in the new § 807.”). Senate Bill
173 was referred to as “The Victims’ Rights Act of 1997.” 1997 Md. Laws, Ch. 311, § 1,
p. 2212. The General Assembly passed the Act “[for] the purpose of . . . expanding
certain victims’ rights laws to include juvenile proceedings[.]” Id. Thus, the purpose of
the 1997 Act was to make victims’ rights laws, including our restitution statute, more
expansive. This is consistent with our conclusion that the legislature did not intend to
create a limitation on restitution for loss of future earnings.
Moreover, a review of our case law confirms our conclusion. In McDaniel, the
Court of Special Appeals focused on the addition of the words “or losses” to subsection
(a)(2)(i) of § 11-603 and found that the term loss includes both past and future damages.
Specifically, the court held that the restitution statute allowed for restitution for dental work
13
that the victim needed but had not yet been performed at the time of the restitution hearing.
205 Md. App. at 563, 45 A.3d at 922:
[T]he goal of the General Assembly in adding [the words] “or losses” was to
expand the circumstances in which a victim could claim restitution from a
defendant. We think “dental losses,” however imprecise a phrase, was meant
to cover a situation in which an individual has suffered a harm—a dental
injury—and has not yet expended money to correct it.
Id. In view of McDaniel, we see no reason why the legislature would have intended to
allow for past and future damages by employing the word “losses” in subsection (a)(2)(i)
but not by the word using “loss” in subsection (a)(2)(iii). Applying McDaniel in the context
of a loss of earnings, we conclude that a victim is entitled to an award for loss of future
earnings as long as the award meets both the statutory and decisional law limitations, i.e.,
the claim is not speculative, the claim covers losses reasonably certain to occur, the loss
was a direct result of the crime or delinquent act, and the claim is shown by competent
evidence.4
Turning to the case at bar, we address Cody’s argument that the restitution awarded
in this case was improper. It is not clear why Cody considers this case to be one of “future
earnings” because the loss of earnings restitution awarded in this case was for wages lost
by Zachary as of the date of the restitution hearing. Cody cites cases outside-of-Maryland
wherein restitution for lost earnings was ordered for “wages lost by the victim as of the
4
We emphasize that an award of restitution for future loss of earnings is proper only to the
extent that it meets these requirements. The restitution statute is not so broad as to
encompass uncertain or speculative damages, or tort damages, such as restitution for pain
and suffering. See, e.g. State v. Addison, 191 Md. App. 159, 990 A.2d 614 (2010) (noting
that courts may award a victim lost wages “already accrued” or “reasonably anticipated”).
14
date restitution was ordered and not for any future earnings.” For example, Cody attempts
to support his position by relying on the Washington state case of State v. Lewis, 791 P.2d
250 (Wash. 1990). In that case, the appellate court reversed an order of restitution for
future lost wages of a deceased victim because the calculation of such wages would be
speculative and because it concluded that the Washington legislature intended the statute
to be read in the past tense, allowing restitution for losses that have already been incurred.
Lewis, 791 P.2d at 253. That case is not at all factually similar to the case at bar. Here,
Zachary had definite employment for a scheduled duration with an approximation of the
wages he would earn and hours he would work. Moreover, Zachary had incurred the loss
of these earnings at the time of the restitution hearing.
Perhaps illustrative of Cody’s definition of future lost earnings is his reliance upon
the definition used by the Colorado Court of Appeals in People v. Bryant, 122 P.3d 1026(Colo. Ct. App. 2005):
Although the phrase “lost wages” is not defined in the restitution statute, or
anywhere else in the criminal code, the comparable phrase “loss of earnings”
is generally defined in the civil context as earnings that were not received
from the date of injury to the date damages for that injury are determined. In
contrast, the phrase “loss of future earnings” is generally defined as earnings
that, because of the opposing party’s conduct, are not expected to be received
from the date damages are determined forward.
Bryant, 122 P.3d at 1028 (emphasis added) (internal citations omitted). Assuming that the
above definition of loss of future earnings is proper, the restitution ordered in this case does
not fit within that definition. The restitution in the case at bar is not commensurate with
the definition of “loss of future earnings.” Here, the restitution was ordered for eight
months from the date of injury for wages that Zachary did not earn accounting from the
15
date of his injury to the date of restitution hearing. No award was made for future earnings
lost beyond the date of the restitution hearing. Instead, the juvenile court awarded
restitution for wages that Zachary had already lost by the time of the restitution hearing. 5
Therefore, although an award for a future loss of earnings is permissible under our
restitution statute, no such restitution was awarded in this case.6
Although we conclude that, contrary to Cody’s contentions, the restitution award in
this case is not one for “future loss of earnings,” we must still decide whether the award is
proper considering the aforementioned statutory and decisional law limitations on
restitution awards. As discussed in further detail below, competent evidence was
introduced in this case to demonstrate that there was a loss of earnings and that the loss of
earnings was a direct result of the assault by Cody. Thus, the award satisfies the statutory
requirements that the loss be a direct result of the crime or delinquent act and that the claim
5
It is worth noting that at the exceptions hearing held on June 15, 2015, the presiding judge
did not award restitution for loss of earnings for Zachary’s entire work-study period,
instead the judge calculated restitution to be awarded from the time of the injury to the date
of the initial restitution hearing before the magistrate on April 29, 2015. Had the judge
ordered restitution for Zachary’s entire work study period, such an award would have been
proper even though it would have included restitution for a future loss of earnings. Such
an award would still not be speculative or based on a loss not reasonably certain to be
incurred because Zachary’s employment was definite and the juvenile court had before it
competent evidence as to the hours Zachary would have worked and the wages he would
have earned.
6
Cody also argues that part of the restitution order was not for a “loss of earnings” within
the meaning of § 11-603 “because Zachary had not been working at Roseda Farm. . . at the
time of the assault.” We are unable to find in our case law, nor has Cody offered, support
for the proposition that the victim must have been working at the time of the assault to be
eligible for restitution for lost earnings. It is sufficient that Zachary had definite
employment scheduled and that a calculation of his earnings “did not encompass
speculative future work.” McDaniel, 205 Md. App. at 565, 45 A.3d at 924.
16
be proven by competent evidence. CRIM. PROC. § 11-603. As to the restitution’s
satisfaction of the decisional law limitations—that the claim not be speculative and not
cover losses not reasonably certain to be incurred—a review of two cases is illustrative.
In McDaniel, the victim suffered a “dental loss”—a dental injury which, at the time
of the restitution hearing, he had not yet expended money to correct. 205 Md. App. at 563,
45 A.3d at 922. The Court of Special Appeals approved the restitution award in that case
based upon an estimate of cost to repair and restore the victim’s teeth. McDaniel, 205 Md.
App. at 565, 45 A.3d at 924. In so holding, the Court explained that “[t]he statement of
the cost of repairing the dental damage and of replacing Robinson's missing tooth was
specific enough; it was of a definite amount that did not encompass speculative future
work.” Id. In the case at bar, as established through testimony and through the Roseda
Farm letter, Zachary was employed for a specified duration and was able to provide an
approximation of the hours and wages involved. McDaniel stands for the proposition that
an estimate as to the numerical value of the loss is sufficient to support a restitution claim.
Id. Thus, applying that proposition to the case sub judice, we conclude that Zachary’s
restitution claim satisfies the requirement that the claim not be speculative.
In In re John M., the Court of Special Appeals set aside a restitution order in the
amount of $38,300 for future counseling expenses of the juvenile’s two sexual assault
victims. In re John M., 129 Md. App. at 185, 741 A.2d at 514 (“The juvenile court only
has the ability to award restitution for reasonable sums that have already been incurred that
are causally related to the juvenile’s delinquent acts. Thus, an award for counseling
expenses already incurred was appropriate, but not the award for the then future counseling
17
expenses.”). In so holding, the Court noted that “statutory limitations and due process
considerations do not permit an order of restitution for counseling expenses that are not yet
certain to occur.”). Id. Contrary to the award for future counseling expenses in In re John
M., which were not reasonably certain to be incurred by the victims, here, there is no
uncertainty about Zachary’s loss of earnings. Zachary incurred his loss at the moment he
became incapacitated to perform his job and earn wages. Moreover, the restitution awarded
in this case was for wages lost during the period of time between the assault and the
restitution hearing, and not for the future (i.e. beyond the restitution hearing). We thus
conclude that Zachary’s restitution claim satisfies the requirement that the award cover
only losses that the victim is reasonably certain to incur. Accordingly, the restitution
ordered in this case was permitted under § 11-603.
Competency of Evidence
Subsection (b) of § 11-603 allows for a presumption of a right to restitution,
providing:
(b) A victim is presumed to have a right to restitution under subsection (a) of
this section if:
(1) the victim or the State requests restitution; and
(2) the court is presented with competent evidence of any item listed
in subsection (a) of this section.
CRIM. PROC. § 11-603(b). See also McDaniel, 205 Md. App. at 559, 45 A.3d at 920 (“[A]
victim is presumed to have a right to restitution under subsection (a) of § 11–603 when the
court is presented with competent evidence of any item listed in subsection (a) of this
section.”) (quotation omitted). Here, the State and Zachary requested restitution, thus the
18
application of the presumption provided in § 11-603(b) hinges upon whether the juvenile
court was presented with competent evidence of a loss of earnings as a direct result of the
delinquent act. See CRIM. PROC. § 11-603(b)(2). “Competent evidence of entitlement to,
and the amount of, restitution need only be reliable, admissible, and established by a
preponderance of the evidence.” Id. See also In re Billy W., 387 Md. 405, 433, 875 A.2d
734, 750 (2005) (citing Alix v. E–Z Serve Corp., 846 So. 2d 156, 159 (La. App. 2003), for
the proposition that “competent evidence” is evidence that has “some degree of reliability
and trustworthiness”). Therefore, the evidence presented in support of Zachary’s
restitution claim is competent if it was reliable, relevant, admissible, and trustworthy.
The rules of evidence, including the rule against hearsay, do not strictly apply to a
juvenile restitution proceeding. See In re Delric H., 150 Md. App. at 249, 819 A.2d at
1126 (“We hold that a juvenile court has the discretion, in the interest of justice, to decline
the strict application of the Maryland Rules of Evidence . . . in a restitution hearing.”).
However, “[e]ven though a court may decline to require a strict application of evidentiary
rules, there still exists an inherent reliability/credibility requirement which a proponent of
the offered evidence must satisfy.” In re Delric H., 150 Md. App. at 248–49, 819 A.2d at
1126.
Cody argues that “[n]othing in the letter or Zachary’s testimony established
precisely how many hours he would work or how long he would be working or, for that
matter, why he could not work at all.” Here, evidence that Zachary’s loss of earnings was
a direct result of the assault by Cody was presented through testimony of Zachary and
Zachary’s father, as well as through the Roseda Farm letter. Zachary testified to suffering
19
a broken jaw as a result of being assaulted by Cody. Zachary also testified to missing
weeks of school due to his injuries. Further, Zachary testified that he worked with the
tractor, weed whacker, and other small farm equipment during his previous employment at
Roseda Farm. When asked why he could not continue to work at Roseda Farm, Zachary
testified that he was unable to work at Roseda Farm because the vibrations from the farm
machinery would cause issues with his healing jaw. Moreover, Zachary testified that it
was not his decision to forgo participation in the work study program.
Both Zachary and his father testified that Zachary was scheduled to work in the
program at Roseda Farm for the school year and that he would work twenty hours per week
at a compensation rate of $8.00 per hour. The Roseda Farm letter provided evidence that
Zachary was scheduled to work at the farm for approximately 20 hours per week for
approximately 40 weeks. The letter also provided evidence as to the approximate amount
Zachary would have earned. The letter was signed by Marcia Bryant, who signed the letter
in her capacity as the “office manager” at Roseda Farm. Zachary’s father testified that he
obtained the letter by asking Zachary’s “boss” at Roseda Farm for “something in writing
to confirm that [Zachary] was part of the program.” As the Court of Special Appeals noted
below, “[a]lthough Zachary’s father’s explanation for how the letter was obtained would
not satisfy any exceptions to the rule against hearsay, it does provide additional context
and reliability to the document.” Moreover, the information contained in the letter was
consistent with the testimony of Zachary and his father. Therefore, the letter served to
corroborate and enhance the reliability of the testimonial evidence.
20
Accordingly, we conclude that the evidence as to the restitution claim was
competent and that Zachary was presumed to have a right to restitution. Cody has not
overcome this presumption by showing that the restitution was unfair or unreasonable. See
CRIM. PROC. § 11-603(b).
Cody nonetheless takes issue with the fact that the Roseda Farm letter provided
approximate figures regarding how many hours per week Zachary would work and for how
many weeks total. Cody argues that the amount of the claim for loss of earnings is too
speculative to serve as a basis for restitution.7 However, the standard for restitution is not
one of absolute certainty or precision.8 Rather, there must be competent evidence showing
entitlement to and the amount of lost earnings or expenses to be incurred by the victim as
a direct result of the crime or delinquent act. McDaniel, 205 Md. App. at 559, 45 A.3d at
920 (“Competent evidence of entitlement to, and the amount of, restitution need only be
7
In an attempt to support this contention, Cody cites case law from out of State to suggest
that a restitution award for loss of earnings must be “based on a quantifiable loss that
occurred in the interim between the crime and the restitution award” and that loss of
earnings awards permitted under a restitution statute “are limited to quantifiable out-of-
pocket losses at the time of the restitution award.” Straub v. State, 292 P.3d 273 (Idaho
2013). However, we note that approximations that are derived from competent evidence
are not the antithesis of “quantifiable” losses. Moreover, the hearing judge exercised his
discretion to account for this approximation by further reducing the award from $5,120 to
$5,000 for Cody’s benefit.
8
At the exceptions hearing, Cody’s counsel argued that the loss of earnings claim was
speculative because there was “no certainty that Zach[ary] would have stayed at the same
job [or] that the employer would have kept paying him the same wage.” The judge
responded, “[W]ouldn't that be the argument on any claim for lost wages, that the person
could have been fired, they could have quit, they could have left for another employment?”
We agree with the Circuit Court that if the standard were one of certainty, one would be
hard-pressed to make a successful restitution claim for loss of earnings.
21
reliable, admissible, and established by a preponderance of the evidence.”) (citation
omitted). As discussed above, the evidence presented at the restitution hearing amounted
to competent evidence of a loss of earnings as a direct result of a delinquent act. Nowhere
in our case law can we find support for the proposition that in order for lost wages
restitution to be proper, the figures presented must be exact down to the decimal.
Finally, Cody seems to suggest that in order to show loss of earnings as a direct
result of the delinquent act, and thus be entitled to restitution, the State must have proven
Zachary was unable to work any job.9 We cannot find, and Cody does not offer, any
support from our decisional or statutory laws that this is a requirement of § 11-603. We
have stated that something is a “direct result” where there is no intervening agent or
occurrence separating the criminal act and the victim’s loss. See Goff, 387 Md. at 344, 875
A.2d at 142. See also Stachowski, 440 Md. at 513, 103 A.3d at 623. Here, as discussed
above, competent evidence showed that Zachary’s jaw was injured as a result of the assault
by Cody. Competent evidence also showed that Zachary had a job at Roseda Farm, where
he would be expected to operate small farm machinery, and that the vibrations from the
farm machinery would disrupt his healing jaw, thus rendering him unable to work there.
Accordingly, we hold that competent evidence supported the restitution claim.
9
Cody contends that “the record is devoid of any evidentiary basis on which the Circuit
Court could have found a connection between Zachary’s continuing medical and dental
conditions and his ability to earn money by fulfilling his work-study program’s
requirements in another capacity at Roseda Farms [sic].” (emphasis added). This asks
more from one seeking restitution than the statute requires. Zachary testified his job at
Roseda Farm entailed handling farm machinery, which if he operated, would disrupt his
healing jaw.
22
CONCLUSION
For the foregoing reasons, we hold that the loss of earnings restitution awarded to
Zachary in this case was consistent with the law under § 11-603 of the Criminal Procedure
Article and we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
PETITIONER TO PAY THE COSTS.
23