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TAYLOR v. COMMONWEALTH, 2013-CA-000421-MR. (2014)

Court: Court of Appeals of Kentucky Number: inkyco20140718187 Visitors: 11
Filed: Jul. 18, 2014
Latest Update: Jul. 18, 2014
Summary: NOT TO BE PUBLISHED OPINION LAMBERT, Judge. Gage Taylor appeals from a Jefferson Circuit Court order requiring him to pay restitution in the amount of $19,064.90. Taylor argues that the amount of restitution is unsupported by the evidence. Having reviewed the record, we affirm. Taylor was charged with receiving stolen property, valued over $10,000, in connection with thefts of jewelry from Sheila Crable. He entered a plea of guilty to an amended charge of receiving stolen property valued at
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NOT TO BE PUBLISHED

OPINION

LAMBERT, Judge.

Gage Taylor appeals from a Jefferson Circuit Court order requiring him to pay restitution in the amount of $19,064.90. Taylor argues that the amount of restitution is unsupported by the evidence. Having reviewed the record, we affirm.

Taylor was charged with receiving stolen property, valued over $10,000, in connection with thefts of jewelry from Sheila Crable. He entered a plea of guilty to an amended charge of receiving stolen property valued at over $500. In exchange for his plea of guilty, the Commonwealth recommended a sentence of one year, diverted for three years. The agreement also provided that restitution would be determined by a hearing.

At the hearing, Crable testified as to the fair market value of the stolen jewelry, and the Commonwealth entered an exhibit containing a spreadsheet, photographs and Internet printouts used by Crable to arrive at the values. The trial court found that the amounts claimed by Crable were reasonable and supported by the evidence, and entered an order directing Taylor to pay restitution in the amount of $19,064.90, with interest, at the rate of at least $100 per month. This appeal by Taylor followed.

Restitution is defined as "any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act[.]" Kentucky Revised Statutes (KRS) 532.350(1)(a). Restitution is mandatory under KRS 532.032(1), which states:

Restitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563, 532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition.

When the issue of restitution has not been resolved by an agreement between the Commonwealth and the defendant, an adversarial hearing must be held in order to satisfy the demands of constitutional due process. Jones v. Commonwealth, 382 S.W.3d 22, 32 (Ky. 2011). The Court specified that the following protections must be provided:

• reasonable notice to the defendant in advance of the sentencing hearing of the amount of restitution claimed and of the nature of the expenses for which restitution is claimed; and • a hearing before a disinterested and impartial judge that includes a reasonable opportunity for the defendant, with assistance of counsel, to examine the evidence or other information presented in support of an order of restitution; and • a reasonable opportunity for the defendant with assistance of counsel to present evidence or other information to rebut the claim of restitution and the amount thereof; and • the burden shall be upon the Commonwealth to establish the validity of the claim for restitution and the amount of restitution by a preponderance of the evidence, and findings with regard to the imposition of restitution must be supported by substantial evidence.

Id.

Taylor does not dispute that he was given reasonable notice, a hearing, and an opportunity to present evidence and rebut the evidence presented by the Commonwealth. He challenges only the amount of restitution determined by the trial court.

A trial court's determination of the amount of restitution is reviewed for an abuse of discretion. Fields v. Commonwealth, 123 S.W.3d 914, 917 (Ky. App. 2003). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Crable provided a detailed list of the unrecovered jewelry:1 (1) one-half carat white gold diamond earrings; (2) gold wedding band; (3) gold omega chain; (4) gold hoop earrings; (5) satin diamond cut gold hoop earrings; (6) one carat diamond Kentucky cluster ring; (7) white gold tennis bracelet (one carat) with diamond heart charm (one-quarter carat); (8) one carat diamond gold tennis bracelet; (9) one-half carat diamond engagement ring; (10) one carat diamond ring guard. Crable used her memory, photographs, and research on the Internet to arrive at the value of each piece of jewelry. She provided photographs of herself wearing some of the jewelry and pages printed from Internet jewelry shopping websites, showing photographs and prices of similar jewelry. Crable testified in some detail regarding how she arrived at the value for each item, by averaging out the prices she found on the Internet for similar items. She acknowledged that the task was complicated by the fact that the items had been given to her as gifts by her former husband, and most were purchased at a store that had gone out of business. On cross-examination, she admitted that none of the jewelry had been insured or appraised.

Taylor argues that the trial court's findings were not supported by substantial evidence because Crable did not provide photographs of all the missing items of jewelry; she provided no insurance records or appraisals; and she could not recall the exact diameter of the hoop earrings, the weight of the omega chain, or the quality of the diamonds in the tennis bracelet. He contends that the online estimates she provided were simply not sufficient.

If Taylor's argument was taken to its logical conclusion, restitution could never be imposed for an item of jewelry that had not been photographed, appraised, measured, weighed and insured. Although Taylor has pointed to some weaknesses in the Commonwealth's evidence, Crable had sufficient reliable information, based on her memory and the photographs, to find comparable items on the Internet. We are required to give "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01; as a sign of her reliability, Crable did not choose the highest-priced Internet comparables in assigning values to her jewelry.

The evidence offered by Crable was of "sufficient probative value to induce conviction in the mind of a reasonable person." Donovan v. Commonwealth, 376 S.W.3d 628, 631 (Ky. App. 2012) (internal citations and quotation marks omitted).

The restitution order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

FootNotes


1. Crable also submitted repair receipts for several items of jewelry that were recovered but in a damaged condition. These costs totaled $528.90; Taylor does not dispute this amount.
Source:  Leagle

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