State v. Tiffany Marcotte ( 2013 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2013-130
OCTOBER TERM, 2013
State of Vermont } APPEALED FROM:
}
} Superior Court, Orleans Unit,
v. } Criminal Division
}
}
Tiffany Marcotte } DOCKET NO. 828-12-11 Oscr
Trial Judge: Howard E. Van Benthuysen
In the above-entitled cause, the Clerk will enter:
Defendant appeals a restitution order requiring her to pay for cleaning the car of a victim
of her crime. Defendant argues that the court erred in imposing interest on any unpaid restitution
amounts and in requiring her to pay for cleaning more of the car than was damaged. We affirm
the restitution award, but strike the provision imposing interest.
Defendant was charged with simple assault for throwing a hot cappuccino through a car
window at a driver and her passenger. She pleaded guilty to disorderly conduct. Following
sentencing the court held a contested restitution hearing. The car owner testified that the
cappuccino hit the driver’s seat and the dashboard on the driver’s side, dripped to the shifter and
in between the seats and splashed onto the sunroof. The driver testified that she attempted to
clean the car, but could not remove the glaze left by the cappuccino. She testified that she
received an estimate for cleaning the car, and was seeking $90 for the cost of cleaning the front
interior. The estimate was submitted as an exhibit. The passenger testified that the cappuccino
had ruined a new pair of jeans and sought $92.95 to replace the jeans. The court found that
victims’ testimony was credible and that the amounts requested were reasonable. The court
found defendant had the ability to pay and issued two restitution orders. The court set two
payment dates and imposed interest if the amounts were not timely paid. Defendant appeals.
On appeal, defendant argues that interest is not allowed for a restitution award and the
court erred in imposing this requirement. The statute provides that where a defendant “is unable
to pay the restitution judgment order at the time of sentencing, the court shall establish a
restitution payment schedule for the offender based upon the offender’s current and reasonably
foreseeable ability to pay,” but that “interest shall not accrue on a restitution judgment.” 13
V.S.A. § 7043(e)(1). The State concedes that the provision for interest should be struck. We
conclude that the statute precludes imposing interest on a restitution judgment and strike that
portion of the restitution award.
Next, defendant contends that the amount of restitution for the car cleaning exceeds the
damage caused by the cappuccino. Restitution is available “in every case in which a victim of a
crime . . . has suffered a material loss.” 13 V.S.A. § 7043(a)(1). The State must prove “both the
amount of the victim’s loss and causation between the defendant’s criminal act and the victim’s
loss.” State v. Forant, 168 Vt. 217, 222 (1998). Defendant claims that the State failed to
demonstrate that the cleaning costs are related solely to the damage caused by defendant’s
actions. Defendant argues that she is responsible for the cost of cleaning the stains she caused
but not for the cost to clean the entire front interior of the victim’s car.
The trial court has discretion in determining the proper amount of restitution. State v.
Hughes, 2010 VT 72, ¶ 8, 188 Vt. 595 (mem.). Here, there was no abuse of that discretion. The
victim testified that the cappuccino caused damage to the front interior of her car and that she
was unable to remove the resulting staining. The State also entered an exhibit of an estimate for
cleaning the front interior of the victim’s car. The court credited the victim’s testimony
concerning the extent of the damage and found that the victim’s request to clean the front interior
of the car was reasonable. Given the victim’s statement that the stains were throughout the front
of the car and that the estimate was for cleaning the front interior of the car, the loss was
supported by the evidence, and it was within the court’s discretion to grant restitution for
cleaning the front interior. See State v. VanDusen, 166 Vt. 240, 245 (1997) (explaining that
court has “discretion in determining the amount of restitution, and only a reasonable certainty of
estimated loss is required”).
The provision for interest is struck, and, in all other respects the restitution order is
affirmed.
BY THE COURT:
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John A. Dooley, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Beth Robinson, Associate Justice
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