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
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.
and Procedural History
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.)
Akehurst was apprehended later that day. On December 27,
2016, the State charged him with Class B misdemeanor leaving
the scene of an accident. 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.
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
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.
"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,
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 §
35-50-5-3(a)(4). Akehurst argues the trial court should ...