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Akehurst v. State

Court of Appeals of Indiana

December 7, 2018

Steven Akehurst, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Posey Superior Court The Honorable S. Brent Almon, Judge Trial Court Cause No. 65D01-1612-CM-653

          ATTORNEY FOR APPELLANT William W. Gooden Mt. Vernon, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Steven Akehurst appeals the trial court's order of restitution. He claims the court erred by ordering him to pay the victim's lost earnings arising from the day of sentencing and to pay the difference between the insurance payment and the pay-off amount for the car loan. We reverse in part, affirm in part, and remand.

         Facts and Procedural History[1]

         [¶2] On December 19, 2016, Akehurst crashed his vehicle into Jennifer Noble's van. Akehurst got out of his vehicle, surveyed the damage, "looked [Noble] straight in the face and then got back into his vehicle and took off." (Tr. Vol. 2 at 6.) Noble was transported by ambulance to the hospital and treated for leg injuries and "whiplash kind of things." (Id.)

         [¶3] Akehurst was apprehended later that day. On December 27, 2016, the State charged him with Class B misdemeanor leaving the scene of an accident.[2] On November 9, 2017, the trial court held a bench trial and found Akehurst guilty. On January 2, 2018, the trial court held a sentencing hearing.

         [¶4] At the sentencing hearing, Noble testified her medical bills had been paid. Although insurance had paid for her vehicle, it did not cover $616.28 of her vehicle loan. Noble works as a teacher and makes $18.25 per hour. Between the medical treatment and days in court, Noble had taken 2.5 days off work. This time included the half-day she took off in order to attend the sentencing hearing. Noble had lost earnings of $318.80 - $63.25 of this amount was incurred on the day of sentencing.[3]

         [¶5] The trial court sentenced Akehurst to six months in the Posey County Jail, suspended to probation. The trial court also ordered Akehurst to pay restitution in the sum of $935.08. This amount included the $616.28 not paid by insurance for Noble's vehicle and $318.80 for her lost wages.

         Discussion and Decision

         [¶6] "Generally, an order of restitution is within the trial court's discretion, and it will be reversed only upon a finding of an abuse of that discretion. An abuse of discretion occurs when the trial court misinterprets or misapplies the law." Green v. State, 811 N.E.2d 874, 877 (Ind.Ct.App. 2004). A restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime. Rich v. State, 890 N.E.2d 44, 49 (Ind.Ct.App. 2008), trans. denied. "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." J.H. v. State, 950 N.E.2d 731, 734 (Ind.Ct.App. 2011). Traditional goals of restitution are to "impress upon a criminal defendant the magnitude of the loss he has caused and his responsibility to make good that loss as completely as possible." Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App. 1995), reh'g denied, trans. denied.

         Lost Wages

         [¶7] Akehurst claims the trial court "clearly misapplied the law" when it ordered him to pay Noble's lost wages for the day of the sentencing because the restitution statute specifically limits restitution for lost earnings to "before the date of sentencing[.]" Ind. Code ยง 35-50-5-3(a)(4). Akehurst argues the trial court should ...


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