Harold Baugh, s/k/a Harold J. Baugh v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Malveaux and Senior Judge Clements
UNPUBLISHED
Argued by teleconference
HAROLD BAUGH, S/K/A
HAROLD J. BAUGH
MEMORANDUM OPINION* BY
v. Record No. 0347-18-2 JUDGE MARY BENNETT MALVEAUX
DECEMBER 10, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Humes J. Franklin, Jr., Judge Designate
J. Burkhardt Beale (Boone Beale, PLLC, on brief), for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Harold J. Baugh (“appellant”) was convicted of attempted malicious wounding, in
violation of Code §§ 18.2-51 and -26. He argues that the trial court erred in setting the amount
of restitution it required him to pay his estranged wife (“the victim”) as a condition of his
suspended sentence. For the reasons that follow, we affirm the decision of the trial court.
I. BACKGROUND
On April 16, 2017, appellant drove his car into the victim’s car three times. The victim
suffered only minor injuries but her car was destroyed. Appellant was indicted for attempted
malicious wounding, in violation of Code §§ 18.2-51 and -26, and convicted of that offense in a
bench trial.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant also entered a guilty plea to reckless driving, in violation of Code § 46.2-852.
Judge Richard E. Moore presided over the bench trial, and Judge Humes J. Franklin, Jr. presided
over the sentencing hearing.
At sentencing, the Commonwealth requested that appellant be required to pay the victim
$6,639.23 in restitution. That amount, the Commonwealth argued, represented the balance of a
loan owed by the victim on her destroyed car and the sum of the victim’s medical bills incurred
as a consequence of appellant’s offense. In support of its request, the Commonwealth proffered
a credit union account statement indicating a current balance of $3,289.23 owed on the car and a
victim impact statement indicating hospital costs of $3,350. The impact statement further
indicated that the victim suffered “property lost as a result of this crime,” specifically, a 2015
Nissan Rouge automobile with a “[c]ost” of $25,401.34.
Appellant objected to the admission into evidence of the victim impact statement, arguing
that it overvalued the victim’s car and that the court should only order restitution for medical
expenses. Counsel for appellant stated that he had researched the car’s value and asserted that it
was “more in line with the figure that the insurance company paid [the victim], which was in the
neighborhood of fifteen thousand dollars . . . , the fair market value.” Thus, counsel argued, the
victim had already been “fully compensated” for property damage.
The Commonwealth responded that the figure listed in the victim impact statement was
the cost of the victim’s car and that while she had received a $15,000 insurance settlement,
“[u]nder the statute for restitution, the victim is allowed to be made whole, and that [includes]
the balance that was owed on the vehicle that was destroyed.”
The trial court sentenced appellant to ten years’ incarceration with five years suspended
and ordered that upon release he would be subject to three years of supervised probation. As one
of the conditions of appellant’s suspended sentence, he was ordered to pay the victim $6,639.23
in restitution.
This appeal followed.
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II. ANALYSIS
Appellant argues that the trial court abused its discretion in setting the amount of his
restitution at $6,639.23. He contends that “[t]he Code does not allow payment for the amount of
a loan on personal property, only the value of the property itself,” and cites Alger v.
Commonwealth, 19 Va. App. 252 (1994), for the proposition that “payment by an insurance
company is a reliable indicator” of that value. Consequently, appellant argues, the trial court was
only permitted to order restitution in the amount of the “fair market value” of the victim’s car,
which was established by and paid to the victim in a $15,000 insurance settlement. Thus,
appellant contends, it was error for the trial court to include in his restitution the $3,289.23 still
owed by the victim on her car loan after the insurance company had paid her “full restitution.”
“A sentencing decision will not be reversed unless the trial court abused its discretion.”
Fleisher v. Commonwealth, 69 Va. App. 685, 689 (2019) (quoting Burriesci v. Commonwealth,
59 Va. App. 50, 55 (2011)). “[T]he phrase ‘abuse of discretion’ means that the [trial] court ‘has
a range of choice, and that its decision will not be disturbed as long as it stays within that range
and is not influenced by any mistake of law.’” Ellis v. Commonwealth, 68 Va. App. 706, 711
(2018) (first alteration in original) (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). “The
exercise of discretion . . . presupposes ‘that, for some decisions, conscientious jurists could reach
different conclusions based on exactly the same facts – yet still remain entirely reasonable.’”
Fleisher, 69 Va. App. at 689 (alteration in original) (quoting Du v. Commonwealth, 292 Va. 555,
564 (2016)). Thus, “[i]t is immaterial that other judges ‘might have reached a different
conclusion than the one under review,’” and “‘[o]nly when reasonable jurists could not differ can
we say an abuse of discretion has occurred.’” Id. at 689, 691 (quoting Du, 292 Va. at 564).
Consequently, “[o]n appeal, where the restitutionary amount is supported by a preponderance of
the evidence and is ‘reasonable in relation to the nature of the offense,’ the determination of the
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trial court will not be reversed.” Burriesci, 59 Va. App. at 55-56 (quoting McCullough v.
Commonwealth, 38 Va. App. 811, 817 (2002)).
Code § 19.2-303 provides, in pertinent part, that after conviction a trial court may
suspend the sentence in whole or in part and “may, as a condition of a suspended sentence,
require the defendant to make at least partial restitution to the aggrieved party . . . for damages or
loss caused by the offense.” See also Code § 19.2-305(B) (providing that where, as here, a
defendant is placed on probation he “may be required to make at least partial restitution . . . for
damages or loss caused by the offense for which conviction was had”). Further, Code
§ 19.2-305.1(A) provides, in pertinent part, that “no person convicted of a crime . . . which
resulted in property damage or loss[] shall be placed on probation or have his sentence
suspended unless such person shall make at least partial restitution for such property damage or
loss.” In turn, Code § 19.2-305.2(A) states that a trial court, when ordering restitution pursuant
to Code § 19.2-305.1, “may require that [the] defendant, . . . if return of the property is
impractical or impossible, pay an amount equal to the greater of the value of the property at the
time of the offense or the value of the property at the time of sentencing.” However, our
Supreme Court has “specifically recognized that ‘[t]he General Assembly has limited the scope
of restitution a court may order to payments for “damages or losses caused by the offense.”’”
Ellis, 68 Va. App. at 714 (alteration in original) (quoting Howell v. Commonwealth, 274 Va.
737, 740 (2007)). This insures that restitution “make[s] the victim whole.” Fleisher, 69
Va. App. at 691.
We first note that nothing in the relevant provisions of Chapter 18 of Title 19.2 of the
Code establishes fair market value as the measure of value which a trial court must use in
determining the amount of restitution. The sole statutory provision which speaks to value in the
context of restitution states only that where, as here, return of the property at issue is impractical
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or impossible, a defendant ordered to pay restitution for property loss may be “require[d] . . . [to]
pay an amount equal to the greater of the value of the property at the time of the offense or the
value of the property at the time of sentencing.” Code § 19.2-305.2(A). Thus, even where the
Code establishes the relative value which a trial court may use to determine restitution in certain
circumstances, it does not prescribe a basis for computing that value. Had the General Assembly
intended to limit trial courts to determining the amount of restitution using only the “fair market
value” of property damaged or lost through a defendant’s criminal acts, it could have done so by
including specific language to that effect in the relevant statutes. See Commonwealth v.
Williams, 295 Va. 90, 101 (2018) (“[W]e regularly reject invitations to ‘read into [a] statute
language that is not there,’ because of the long-established rule that ‘[c]ourts cannot add
language to [a] statute the General Assembly has not seen fit to include.’” (second, third, and
fourth alterations in original) (quoting Wakole v. Barber, 283 Va. 488, 495-96 (2012))); Leonard
v. Commonwealth, 296 Va. 479, 484 (2018) (“We ‘presume that the General Assembly chose,
with care, the words that appear in . . . statute[s], and must apply the statute[s] in a manner
faithful to that choice.’” (quoting Johnson v. Commonwealth, 292 Va. 738, 742 (2016))).
We further note that appellant misstates the holding of Alger. Under the facts of that
case, this Court did conclude that the amount paid in an insurance settlement, together with the
amount of a deductible, constituted “a reliable indicator of true loss” and that the trial court
properly relied upon those amounts in determining restitution. Alger, 19 Va. App. at 258.
However, Alger does not stand for the proposition that such insurance payments and deductibles,
where proven before a trial court, are always the full measure of loss for determining restitution.
In fact, the language from Alger quoted on brief by appellant—“proof of the amount paid by one
in an arms-length transaction is considered prima facie evidence of the reasonableness of the
payment”—is quoted out of context. Id. The Court in Alger made that statement in the context
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of its examination of “other areas of the law,” and did not hold that proof of the amount of an
insurance settlement is prima facie evidence of the value of damaged or destroyed property for
determining restitution pursuant to Code § 19.2-305.1. Id. Contrary to appellant’s argument,
neither the Code nor Alger mandates the conclusion that a trial court has abused its discretion
when it orders restitution in excess of the amount paid to a victim in an insurance settlement.2
This Court has previously held that a trial court does not abuse its discretion when,
pursuant to Code § 19.2-305.2, it includes in restitution the amount remaining on an unpaid loan
on damaged or destroyed property. In Landes v. Commonwealth, 37 Va. App. 710, 714 (2002),
the defendant fraudulently converted, burned, and disposed of a skid loader he had financed for
use on his farm. As a condition of the defendant’s suspended sentence for fraudulent conversion,
the trial court ordered the defendant to pay restitution to the lienholder, an equipment dealer who
was liable to John Deere Credit for the loader. Id. at 711. The court set the amount of restitution
as the unpaid, secured purchase price rather than the actual value of the damaged skid loader. Id.
The defendant appealed, arguing that the actual value of the skid loader, in its burned condition,
was considerably less and that under Code § 19.2-305.2 the trial court could not require him to
pay restitution in excess of actual value. Id. at 715. This Court affirmed the trial court, noting
that under Code § 19.2-305.2, “where return of the property is impossible or impractical the
2
Appellant also offers Howell v. Commonwealth, 274 Va. 737 (2007), for the
proposition that “[w]ide discretion in ordering restitution has been tempered by the Virginia
Supreme Court” and that restitution may only cover “actual damages” to make the victim whole.
However, Howell addressed a different issue to the one presented by appellant. In Howell, the
Court considered the limit beyond which the causal nexus between a defendant’s offense and the
cost to his victim is sufficiently attenuated that certain costs cannot be considered to have been
“caused by the offense as required by Code §§ 19.2-303, -305(B), [and] -305.1(A).” Id. at 741
(holding that the victim’s cost to install a security system after the defendant’s burglary was too
indirect or tangential to be included in restitution as “damages or loss caused by the offense”).
Here, it is uncontested that the cost occasioned by the destruction of the victim’s car was directly
caused by appellant’s offense. Rather, the issue is the proper measure of that cost.
Consequently, Howell is inapposite to this appeal.
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amount of restitution shall be [sic] ‘the greater of the value of the property’ at the time of the
offense or at sentencing,” and holding that the trial court “did not abuse its discretion by
determining that the value of property . . . was the unpaid secured balance owed on [it]” rather
than its actual value as “damaged or destroyed property.” Id. at 716. Thus, it is clear from
Landes that a trial court, in determining restitution, may include an amount still owed on a loan
for property damaged or destroyed through a defendant’s criminal acts. Consequently, we find
no merit in appellant’s argument that the trial court erred by including in restitution the amount
of the outstanding loan on the victim’s car, which was destroyed by appellant.
III. CONCLUSION
Finding no error by the trial court in its determination of the amount of restitution, we
affirm the decision of the court. We also remand the case to the court for the limited purpose of
correcting a clerical error.3
Affirmed and remanded with instructions.
3
The trial court’s May 11, 2018 sentencing order indicates that appellant was convicted
for malicious wounding, in violation of Code § 18.2-51. It is clear from the indictment in this
case, the incidents at trial, and the court’s October 30, 2017 conviction order that appellant was
convicted for attempted malicious wounding, in violation of Code §§ 18.2-51 and -26. We
remand to the trial court for correction of this apparent clerical error. See Code § 8.01-428(B).
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