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State v. Morse

Supreme Court of Vermont

July 25, 2014

State of Vermont
v.
Phillip Morse

On Appeal from Superior Court, Bennington Unit, Criminal Division. Cortland Corsones, J.

Alexander Burke, Bennington County Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

REIBER, C.J.

¶ 1. Defendant appeals a restitution order requiring him to pay $2, 427.36 for damage to a car. On appeal, defendant argues that (1) the State failed to meet its burden of demonstrating that the victim’s loss was uninsured; (2) the court failed to make a specific finding that the damage was uninsured; (3) the court erred in admitting and using a repair estimate because it was hearsay; and (4) the court erred in calculating the amount of restitution by using the cost of repair rather than the difference in fair market value before and after the accident. We affirm.

¶ 2. The charges in this case stem from an incident in October 2012 between defendant and his ex-girlfriend. The ex-girlfriend was driving her mother’s car when defendant followed her, passed her, and then stopped in the middle of the roadway. When the ex-girlfriend tried to pass, defendant swerved his truck, damaging the car’s right side. Defendant was charged with aggravated domestic assault, aggravated stalking, negligent operation of a vehicle and reckless endangerment. In November 2012, defendant pleaded guilty to grossly negligent operation and reckless endangerment, and the State dismissed the other charges. Defendant was sentenced to two-to-five years.

¶ 3. The State requested restitution. The ex-girlfriend testified at the restitution hearing. She explained that she was driving her mother’s green car when defendant crashed his red truck into the car, causing damage to the front and back passenger doors. She described that there were scratches up and down the side of the door, the back door was dented in and there was red paint on the side of the car. She also testified that none of the damage was present before defendant’s truck hit the car. She testified that she had no automobile insurance.

¶ 4. The car owner, the ex-girlfriend’s mother, also testified. She explained that she obtained an estimate for the repairs. Defense counsel questioned the car owner about the estimate during voir dire, and she admitted that she knew little about vehicles and could not elaborate on the meaning of particular items in the estimate. Defendant moved to exclude the estimate as hearsay. Upon further questioning by the State, the witness clarified that there was no other damage to her vehicle prior to October 2012, and the estimate was to repair damage caused by the October 2012 collision. The court admitted the estimate in conjunction with the owner’s testimony. The car owner also testified that she did not have collision insurance. She explained that she had tried to get information from the State’s Attorney about defendant’s insurance, but did not receive a response to her request.

¶ 5. Defendant’s cousin, who is a friend of the ex-girlfriend, testified for defendant. She stated that there were dents in the car prior to the October 2012 accident. She also testified that she did not notice additional damage after the accident.

¶ 6. The court made findings on the record. The court found that the State had met its burden of showing that defendant crashed his truck into the vehicle driven by his ex-girlfriend and caused substantial damage to the car’s right side. The court found credible the car owner’s testimony that there was not any significant damage prior to the accident. The court also found that the estimate represented a fair and reasonable amount to repair the damage caused by the accident. The court issued a written form order, finding: “The victim incurred an uninsured material loss in the total amount of $2427.36.” Defendant timely appealed.

¶ 7. The purpose of the restitution statute is to compensate the victim for his or her “material loss, ” 13 V.S.A. § 7043(a), which is defined as an “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2). The State has the burden of proving “that a loss attributable to a crime victim is uninsured.” State v. Hughes, 2010 VT 72, ¶ 11, 188 Vt. 595, 5 A.3d 926 (mem.). The standard of proof is a preponderance of the evidence. State v. VanDusen, 166 Vt. 240, 245, 691 A.2d 1053, 1055 (1997).

¶ 8. On appeal, defendant first argues that the State failed to meet its burden of proving that the damage was not insured. Although the State introduced testimony from the car owner that her insurance did not cover the damage and that she did not receive any information in response to her inquiries regarding defendant’s insurance, defendant contends that the State failed to meet its burden of proving that defendant lacked insurance to cover the damage.

¶ 9. We conclude that the State’s failure to affirmatively demonstrate that defendant lacked insurance does not require reversal because defendant has not demonstrated or even alleged that the victim’s loss was covered by his insurance, and therefore that, if such an inquiry had been made at the restitution hearing, the result would have been different. See United States v. Zangari, 677 F.3d 86, 96 (2d Cir. 2012) (holding that there was no unfair prejudicial impact where defendant did not show that restitution would have been less if error had not occurred). If, in fact, defendant has insurance coverage, he will not suffer any prejudice because any payment from his insurer will operate as a credit against his restitution ...


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