Antonio Wilson v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Felton
Argued at Chesapeake, Virginia
ANTONIO WILSON
MEMORANDUM OPINION* BY
v. Record No. 0931-05-1 JUDGE WALTER S. FELTON, JR.
MARCH 28, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Annette Miller (Office of the Public Defender, on brief), for
appellant.
Eugene Murphy, Senior Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Antonio Wilson (“appellant”) appeals a judgment of the trial court ordering him to pay
restitution in the amount of $15,000 to GEICO insurance company (“GEICO”). He argues the trial
court abused its discretion in imposing restitution in that amount because the Commonwealth failed
to provide sufficient evidence of the actual amount of loss sustained by GEICO. For the following
reasons, we affirm the judgment of the trial court.
BACKGROUND
Appellant pled guilty pursuant to a plea agreement to receiving stolen property in violation
of Code § 18.2-109. The agreement provided that the “[c]ourt w[ould] decide the issue of
restitution to the insurance company.” At appellant’s March 16, 2005 sentencing hearing, the
prosecutor stated to the trial court that a representative from GEICO contacted him and provided the
amount it sought in restitution. Specifically, the prosecutor stated that the GEICO representative
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
indicated they did take into consideration salvage value. She says
they sold it to salvage, I guess, for parts or at auction. But she
indicated that the loss to the insurance company was -- for the car
was $21,084.50. And they paid rental for the victim of $725.87.
So the total was $21,810.17 to GEICO.
Appellant did not object to the admissibility of the evidence, but argued the
Commonwealth’s evidence was insufficient to meet its burden of proof, stating “that they haven’t
provided enough certain[t]y to allow for that kind of restitution.” Appellant suggested that “the
insurance company c[ould] go through a simple process and provide all documents through civil
court and argue their claim at the time” and requested that the trial “court not provide restitution to
GEICO and allow [the insurance company] to provide further documentation to prove what they did
with this car, why they did it, and what shape it was [in] when they actually did recover it.” Upon
the conclusion of appellant’s argument, the trial court awarded GEICO restitution in the amount of
$15,000.
ANALYSIS
“When considering on appeal the sufficiency of the evidence presented below, we
‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s
decision is ‘plainly wrong or without evidence to support it.’” Morris v. Commonwealth, 47
Va. App. 34, 42, 662 S.E.2d 243, 247 (2005) (quoting Davis v. Commonwealth, 39 Va. App. 96,
99, 570 S.E.2d 875, 876-77 (2002); McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc)). Consistent with this principle, “where the restitutionary
amount is supported by a preponderance of the evidence[,] . . . the determination of the trial court
will not be reversed.” McCullough v. Commonwealth, 38 Va. App. 811, 817, 568 S.E.2d 449,
452 (2002).
The record reflects the Commonwealth presented evidence of its conversation with a
GEICO representative asserting a loss of $21,810.17. We have previously held that hearsay
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evidence is admissible to establish an amount of loss for purposes of restitution. See McCullough,
38 Va. App. at 816, 568 S.E.2d at 451 (citing Alger v. Commonwealth, 19 Va. App. 252, 259 n.2,
450 S.E.2d 765, 769 n.2 (1994)). Such hearsay evidence “must, however, have some indicia of
reliability.” Alger, 19 Va. App. at 258, 450 S.E.2d at 768.
Appellant’s counsel conceded at oral argument that she failed to object to the admissibility
of the Commonwealth’s evidence, arguing instead to the trial court that the Commonwealth’s
evidence was insufficient to establish by a preponderance of the evidence the amount of restitution
owed GEICO. We conclude that the specificity of the evidence presented by the Commonwealth to
establish the loss for both the stolen car and the incidental rental expense resulting from the theft
was sufficient to establish by a preponderance of the evidence that GEICO sustained a loss of
$15,000 as a result of appellant’s criminal conduct. See Bazemore v. Commonwealth, 25 Va. App.
466, 468-69, 489 S.E.2d 254, 255-56 (1997) (finding the Commonwealth had met its burden of
establishing amount of restitution when it specifically outlined the value of the stolen vehicle and
the resulting incidental expenses associated with recovering the stolen vehicle).
The amount of restitution to be repaid by a person convicted of a property crime “is a matter
resting within the sole province of the [trial court].” McCullough, 38 Va. App. at 815, 568 S.E.2d at
451 (citing Code § 19.2-305.1(C)). The trial court’s judgment ordering appellant to pay GEICO
$15,000 restitution, an amount less than the amount established by the Commonwealth’s evidence,
demonstrates that it considered both the Commonwealth’s evidence and appellant’s argument. “The
weight which should be given to evidence . . . [is a] question[] which the fact finder must decide.”
Molina v. Commonwealth, 47 Va. App. 338, 370, 624 S.E.2d 83, 98 (2006) (quoting Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986)). Accordingly, we conclude
the trial court did not abuse its discretion in ordering appellant to pay GEICO $15,000 restitution.
Affirmed.
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