Jorge G. Carrillo v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 26 2018, 9:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jorge G. Carrillo, April 26, 2018
Appellant-Defendant, Court of Appeals Case No.
15A05-1710-CR-2413
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally A.
Appellee-Plaintiff. McLaughlin, Judge
Trial Court Cause No.
15D02-0703-FD-88
Altice, Judge
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Case Summary
[1] Jorge Carrillo pled guilty to two counts of theft as Class D felonies. In addition
to a three-year executed sentence, most of which was suspended to probation,
the trial court ordered Carrillo to pay restitution in the amount of $10,917.46.
On appeal, Carrillo argues the trial court abused its discretion in ordering him
to pay restitution in the amount of $10,917.46.
[2] We affirm.
Facts & Procedural History
[3] In 2005, Jorge Carrillo was hired as the manager for a gas station that contained
a store. June Tucker was the bookkeeper for the store. In September 2006,
Tucker noticed some discrepancies in the money and inventory of the store and
began to suspect that an employee was engaged in theft. Tucker examined the
discrepancies and eventually called the police, on October 5, 2006, when items
she had documented were found in Carrillo’s vehicle.
[4] An Indiana State Police trooper responded to Tucker’s call. The trooper spoke
with Carrillo and asked to look in Carrillo’s vehicle. Multiple items from the
store were found in the vehicle. Carrillo initially told the trooper that he was
returning unused inventory to the distributor but later admitted that he had
taken the items without permission. Carrillo told the trooper that he had taken
items from the store in the past and would occasionally pay the store for some
of the items.
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[5] Carrillo was arrested and charged, on March 27, 2007, with twenty-two counts
1
of Class D felony theft. On August 29, 2017, Carrillo pled guilty to two counts
of theft, and the State dismissed the other twenty charges. Under the plea, the
parties agreed that the amount of restitution would be determined by the trial
court, and Carrillo agreed that he could be liable for restitution for the
dismissed counts.
[6] On September 19, 2017, the trial court held a sentencing hearing and
pronouncement of restitution. The trial court sentenced Carrillo and ordered
him to pay $10,917.46 in restitution. Carrillo now appeals. Additional facts
will be provided as necessary.
Discussion & Decision
[7] Carrillo argues the trial court abused its discretion in determining the amount
of restitution he owed Tucker. According to Carrillo, the calculation of the
restitution amount was “improperly based upon insufficient evidence and
contradicted evidence in the record.” Appellant’s Brief at 11.
[8] “[T]he principal purpose of restitution is to vindicate the rights of society and to
impress upon the defendant the magnitude of the loss the crime has caused, and
that restitution also serves to compensate the victim.” Morgan v. State, 49
N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016) (quoting Iltzsch v. State, 981 N.E.2d
1While not entirely clear, it appears from the record that in November 2007, Carrillo failed to appear for a
court date and absconded. He was rearrested approximately ten years later.
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55, 56 (Ind. 2013)). In ordering restitution, a trial court shall consider “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).” Ind. Code § 35-50-5-
3(a)(1).
[9] A restitution order must reflect a loss sustained by the victim “as a direct and
immediate result” of the defendant’s criminal acts. Rich v. State, 890 N.E.2d 44,
51 (Ind. Ct. App. 2008) (internal quotations marks omitted), trans. denied. The
amount of actual loss is a factual matter to be determined upon the presentation
of evidence. Id. at 49. “Evidence supporting a restitution order is sufficient if it
affords a reasonable basis for estimating loss and does not subject the trier of
fact to mere speculation or conjecture.” S.G. v. State, 956 N.E.2d 668, 683 (Ind.
Ct. App. 2011) (citation and internal quotation marks omitted), trans. denied.
[10] A trial court’s order of restitution is a matter within its sound discretion, and we
will reverse only upon a showing of an abuse of that discretion. Long v.
State, 867 N.E.2d 606, 618 (Ind. Ct. App. 2007). An abuse of discretion occurs
where the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Id. In determining whether the trial court abused
its discretion, we neither reweigh evidence nor judge witness credibility. Mogg
v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009). We will affirm the trial
court’s decision if there is any evidence supporting it. Smith v. State, 990 N.E.2d
517, 520 (Ind. Ct. App. 2013), trans. denied.
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[11] At the restitution hearing, Tucker testified that she used a computerized
inventory software system to compile a list of inventory that was taken from the
store. The list showed the total value of the items stolen by Carrillo to be
$23,539.65. The State conceded that certain amounts should be deducted from
Tucker’s list of lost inventory, i.e., $2,500.00 received by the store in insurance
proceeds to cover product loss and $1,934.22, which represented the cost of
product that Carrillo had returned to the store. Carrillo submitted his own
calculation of restitution which the trial court also admitted into evidence.
Carrillo’s value of items lost totaled $885.79.
[12] In reaching its determination that the amount of restitution should be
$10,917.46, the trial court explained:
The Court is basing the restitution based on the sheet that is
provided as State’s Exhibit 1[, Tucker’s inventory list,] as I’ve
stated, I’m not counting any of the items where there was a
vendor where checks were made. I am not counting the
recovered items. I am not counting any of the items that appear
to be taken from lottery, cash transferred to lottery, um, or gas
cards charged to the store that may be fraudulent because none of
that type of crime was asserted in the charging information but
rather I’m looking at to [sic] the items that on the inventory
control were presented as during the time that Mr. Carrillo was
manager and in control of the store and the evidence has been
clear and he admitted that he stole items in bulk form from the
store and there is a list of inventory of items that were paid for
but never appeared in the store for purchase to customers and
therefore the costs of that were lost. The Court determined in
going through this that that amount would be thirteen thousand
five hundred and twenty-four dollars ($13,524.00). The Court is
looking at the State’s memo which deducted a few other items
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finding that the amount that they were requesting [is] ten
thousand nine hundred seventeen dollars and forty-six cents
($10,917.46). The Court is going to order restitution in that
amount . . . .
Transcript at 68. The trial court acted within its discretion in ordering
restitution in the amount of $10,917.46. Carrillo’s arguments to the contrary
amount to invitations to reweigh evidence and judge witness credibility, which
we may not do.
[13] Judgment affirmed.
Najam, J. and Robb, J., concur.
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