Kristopher Mark Hardy 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 Jun 26 2020, 9:14 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Alexander W. Robbins Curtis T. Hill, Jr.
The Law Office of Alex Robbins Attorney General of Indiana
Bedford, Indiana
Steven Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kristopher Mark Hardy, June 26, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2892
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie Lemay-
Appellee-Plaintiff. Luken, Judge
Trial Court Cause No.
32D05-1901-F5-8
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 1 of 5
Statement of the Case
[1] Kristopher Hardy (“Hardy”) appeals the trial court’s restitution order entered
after Hardy pled guilty to Level 5 felony burglary. Hardy argues that the trial
court abused its discretion when it ordered him to pay $4,558.65 in restitution.
Finding no abuse of the trial court’s discretion, we affirm the trial court’s
restitution order.
[2] We affirm and remand with instructions.
Issue
Whether the trial court abused its discretion when it
ordered Hardy to pay $4,558.65 in restitution.
Facts
[3] Hardy pled guilty to Level 5 felony burglary in October 2019. The following
month, the trial court held a restitution hearing regarding the burglary victim’s
losses. At the hearing, the victim testified that he had sent a three-page
itemized list of his losses to his insurer, Pekin Insurance (“Pekin”). The
victim’s total estimated replacement cost for the losses was $4,141.
[4] Also at the hearing, Pekin claims adjustor Jeffrey Engel (“Engel”) testified that
Pekin had contracted with National Vendor (“National Vendor”) to determine
the value of the victim’s losses. Engel explained that Pekin “customarily
send[s] . . . all the inventorying and that type of stuff out to . . . a vendor of that
sort[.] They assist with coming up with values . . . on items that were stolen.”
(Tr. Vol. 2 at 12). According to Engel, National Vendor had determined that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2892 | June 26, 2020 Page 2 of 5
the value of the victim’s losses was $4,558.65. Engel further testified that, after
subtracting the victim’s $500 deductible from the total value of his losses, Pekin
had sent a $4,058.65 check to the victim.
[5] Following the hearing, the trial court issued an order requiring Hardy “to pay
restitution in the amount of $4,558.65.” (App. Vol. 2 at 28). Later that same
day, the trial court issued an amended restitution order requiring Hardy to pay
the victim $500 and Pekin $4,550.65.
[6] Hardy now appeals.
Decision
[1] As a preliminary matter, we note that, although mentioned by neither party, the
$4,550.65 that Hardy was ordered to pay Pekin in the amended restitution order
appears to be a typographical error. The parties and the trial court agreed that
the total of the victim’s losses was $4,558.65. On remand, we instruct the trial
court to issue an amended restitution order requiring Hardy to pay the victim
$500 and Pekin $4,058.65. We now turn to the merits of Hardy’s appeal.
[2] Hardy’s sole argument is that the trial court abused its discretion when it
ordered him to pay $4,558.65 in restitution. Hardy specifically argues that “the
correct value of the total replacement cost for the items the victim lost in this
case is . . . the $4,141.00[.]” (Hardy’s Br. at 5).
[3] The trial court has the authority to order a defendant who is convicted of a
crime to make restitution to the victim of the crime. INDIANA CODE § 35-50-5-
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3. The 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.
Morgan v. State, 49 N.E.3d 1091, 1093-94 (Ind. Ct. App. 2016). Restitution also
serves to compensate the victim. Id. at 1094.
[4] A restitution order is within the trial court’s 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
will not reweigh the evidence. 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.
[5] 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), 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), trans. denied, (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App.
2005)).
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[6] Here, Engel testified that Pekin had contracted with National Vendor to
determine the value of the victim’s losses. Engel explained that National
Vendor customarily assists Pekin with determining the value of losses in
burglary cases. According to Engel, National Vendor had determined that the
value of the victim’s losses in this case was $4,558.65. This evidence “affords a
reasonable basis for estimating loss and does not subject the trier of fact to mere
speculation or conjecture.” See id. Hardy’s argument is a request that we
reweigh the evidence, which we will not do. See Mogg, 918 N.E.2d at 755. The
trial court did not abuse its discretion when it ordered Hardy to pay $4,558.65
in restitution.
[7] Affirmed and remanded with instructions.
Bradford, C.J., and Baker, J., concur.
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