Benton v. State, 340

Citation711 A.2d 792
Decision Date10 June 1998
Docket NumberNo. 340,1997,340
PartiesMelissa BENTON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
CourtUnited States State Supreme Court of Delaware

Upon appeal from the Superior Court. AFFIRMED.

Court Below--Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. S96-03-0098 and 0099.

Edward C. Gill, Georgetown, for appellant.

Sam Glasscock, III, Department of Justice, Georgetown, for appellee.

Before VEASEY, C.J., HOLLAND and HARTNETT, JJ.

HOLLAND, Justice:

Following a jury trial in the Superior Court, the defendant-appellant, Melissa Benton ("Benton"), was convicted of Felony Theft and Falsifying Business Records. She was found to have embezzled funds in the course of her employment as an accounts receivable clerk. In this appeal, Benton does not contest the merits of her convictions. She only challenges the Superior Court's judgments with regard to the total amount of $21,450.65 in restitution that she was ordered to pay.

Benton contends that the Superior Court erred, as a matter of law, by ordering her to pay restitution in an amount that exceeded the State's evidence at trial. She argues, alternatively, that there was insufficient evidence to support the Superior Court's order of restitution. In a related claim, Benton submits that the Superior Court erred by ordering her to make restitution to her employer because her employer had signed a general release of all claims pursuant to its receipt of payment under an insurance surety bond. Benton also argues that the Superior Court's order of restitution constituted an excessive fine in violation of the Eighth Amendment to the United States Constitution. Finally, Benton argues that the Superior Court failed to consider her inability to repay the restitution it ordered.

We have carefully considered each of Benton's arguments. We have concluded that the record reflects no error. Accordingly, the judgment of the Superior Court is affirmed.

Facts

In January 1995, Benton went to work as a bookkeeper for the Angola By The Bay Property Owners Association ("the Association"). The Association controls a housing development and resort in Sussex County. Its members are lot owners in the resort. The Association is responsible for the maintenance and upkeep of the common facilities at Angola By The Bay.

The Association receives a yearly assessment of $250 per lot from each property owner. It also receives revenue from boat slip rentals, boat ramp usage fees, boat rack rentals, pool passes and soft drink sales. During the time Benton was the bookkeeper, she was responsible for receiving payments for these fees and services, entering the amount received in the financial records of the Association, preparing deposit slips, and depositing the cash and checks in the Association's bank account.

Benton voluntarily left her employment at the Association in June 1995. Shortly after she resigned, it was discovered that Benton had embezzled money from the Association. Benton's embezzlement scheme was explained by the evidence presented during the State's case at trial.

The record reflects that, when Benton received cash on behalf of the Association, she would frequently keep the money for herself. Benton was able to hide her embezzlement by a scheme known as "lapping." Pursuant to this scheme, Benton would note in the financial records of the Association that she had received a cash payment from a property owner or customer. In fact, however, Benton would convert the cash to her own use. The amount of cash embezzled would be replaced in the daily bank deposit with one or more payments by check from other property owners. 1 The "lapping" scheme delayed the discovery of Benton's thefts until property owners, who had made payments by check, realized that their accounts had not been given proper credit. The State's evidence at trial showed that Benton had stolen at least $2,300 from her employer.

Benton was convicted of Felony Theft and Falsification of Business Records. On October 25, 1996, Benton was sentenced to probation. She was also ordered to make restitution. Benton's original appeal from that sentence to this Court was voluntarily dismissed.

A restitution hearing was held on May 13 and July 10, 1997. The Superior Court determined that $2,300 had been misappropriated from the payments for lot assessments by Benton in her "lapping" scheme. The Superior Court concluded that a $100 traveler's check and a $155.45 Association check had been diverted to Benton's personal use. The Superior Court also concluded that Benton had embezzled an additional amount of $1,589.20 from soda sales, $325 from pool passes, $225 from boat racks, $825 from marina stickers, and $425 from ramp stickers. The Superior Court aggregated the total theft from the Association by Benton at $5,994.65. 2 The Superior Court also determined that Benton should pay restitution for the following amounts, which reflect a portion of the fees the Association had paid its accountants: $6,660 to ascertain the amount stolen by Benton through the "lapping" scheme; $1,336 in expenses for trial preparation; and $7,460 for restoring the Association's financial records because of the damage done by Benton's falsifications.

In an amended sentencing order dated August 15, 1997, the Superior Court directed Benton to pay restitution in the total amount of $21,450.65. Prior to the Superior Court's order quantifying Benton's restitution, the Association had received the proceeds of a $10,000 bond under a policy of theft insurance, as a result of Benton's theft. Therefore, the Superior Court divided the restitution. The first $11,450.65 was ordered to be paid to the Association and the remaining $10,000 to the insurer.

Restitution Amount
Properly Exceeded Trial Evidence

Benton submits that the maximum amount of restitution she could be ordered to pay is limited to the evidence presented during her criminal trial. Therefore, Benton contends that the Superior Court erred by ordering her to pay an amount of restitution in excess of $2,300. Benton bases this claim on the trial testimony by an accountant for the Association. According to that accountant prior to trial he had only been able to determine that Benton had embezzled at least $2,300 and had attempted to conceal that theft by her "lapping" scheme.

Benton's contention disregards the legal distinction between evidence that is either relevant or necessary to establish the elements of an offense at a criminal trial and evidence that is admissible at a hearing to determine the appropriate amount of restitution. There is no constitutional or statutory mandate that the complete economic consequences of a defendant's illegal conduct be established at the criminal trial. In fact, the complete economic consequences of a crime would frequently be irrelevant and inadmissible during the criminal trial, e.g., out-of-pocket losses and other expenses. 3 There are separately enumerated statutory factors, however, which either permit or require the complete economic ramifications of the convicted defendant's illegal conduct to be taken into account by the sentencing judge for purposes of ordering restitution. 4

Benton was charged with Falsification of Business Records 5 and Felony Theft. 6 The State met its burden by proving the elements of those offenses at the criminal trial. The State presented evidence that Benton had embezzled more than $500 from the Association and had falsified records in order to conceal her theft. The jury was convinced, beyond a reasonable doubt, that Benton was guilty of both crimes.

The Delaware Criminal Code imposes separate statutory responsibilities upon the Superior Court for the purposes of sentencing. Section 841(d) provides that, "[u]pon conviction, the sentencing judge shall require full restitution to the victim for any monetary losses suffered ...." Accordingly, Section 4106(b) directs the sentencing judge to "determine the nature and amount of restitution, if any, to be made to each victim of the crime of each convicted offender."

The statutory criteria for making that determination are set forth in Section 4106(a):

[a]ny person convicted ... shall be liable to each victim of the offense for the value of the property or property rights lost to the victim and for the value of any property which has diminished in worth as a result of the actions of such convicted offender and shall be ordered by the court to make restitution. If the court does not require that restitution be paid to a victim, the court shall state its reason on the record. The convicted offender shall also be liable for direct out-of-pocket losses, loss of earnings and other expenses and inconveniences incurred by victim as a direct result of the crime .... 7

Thus, the statutory scheme for restitution expressly provides for the victim to recover for the value of the property rights lost or diminished by the defendant's criminal conduct, as well as "direct out-of-pocket losses, loss of earnings and other expenses and inconveniences." 8

In determining the amount of restitution to order for the total actual theft by Benton, the Superior Court relied upon the testimony of the Association's accountant, who had also testified at the criminal trial, and the testimony of the Association's president. The accountant had testified, based on his pre-trial review of the Association's financial records, that Benton had embezzled at least $2,300. At the restitution hearing, the president of the Association described the post-trial calculations which reflected Benton's embezzlement of more than $3,600 in additional money from the Association. The Superior Court properly admitted evidence regarding the full amount of Benton's actual theft at the restitution hearing. 9

In addition to restitution for the total amount stolen, Section 4106(a) contemplates that a restitution award will include...

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