Noffsinger v. State

• Decision Date: 23 April 1993
• Docket Number: No. A-4409,A-4409
• Citation: 850 P.2d 647
• Parties: Don NOFFSINGER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 647

850 P.2d 647

Don NOFFSINGER, Appellant, v. STATE of Alaska, Appellee.

No. A-4409.

Court of Appeals of Alaska.

April 23, 1993.

Susan M. Carney, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant.

Daniel R. Cooper, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

OPINION

BRYNER, Chief Judge.

Don P. Noffsinger pled no contest to and was convicted of a single count of second-degree theft, in violation of AS 11.46.130(a)(1). Superior Court Judge Mary E. Greene suspended the imposition of Noffsinger's sentence on condition that he serve ninety days in jail, pay $8,300 restitution, and complete five years of probation. On appeal, Noffsinger challenges the restitution order on several grounds. We affirm.

Noffsinger's conviction stemmed from his theft of gold from several of the sluice boxes at a gold mine in the Deadwood Creek area, near Central. During the theft, Noffsinger was accompanied by another man, Jeffrey R. Hunt. When the Alaska State Troopers arrested Noffsinger and Hunt several days after the theft, they recovered approximately four ounces of stolen gold. In interviews with the troopers and, subsequently, with the probation officer who wrote the presentence report, Noffsinger alleged that the gold recovered upon his arrest constituted approximately half of the total gold stolen. Relying on an apparently undisputed value of $267.50 per ounce, Noffsinger estimated that all of the stolen gold was worth approximately $2,000.

The owners of the mine disputed Noffsinger's estimate. In testimony at the sentencing hearing, George W. Seuffert, Jr., estimated that a total of about thirty-five ounces of gold had been taken by Noffsinger and Hunt. Seuffert, a geological engineer and part owner of the mine where the theft occurred, had five years' experience working the mine's sluice boxes and described himself as "fairly good at reading" them.

Seuffert testified that Noffsinger and Hunt took the gold that had accumulated on "the top carpets on the side [sluice] boxes, and those are by far the richest, particularly one on the right side facing down the sluice." According to Seuffert, on the evening before the theft, he had observed a substantial amount of gold accumulating in the sluice boxes, which had been operating for about a week without being cleaned out. On the day after the theft, the owners of the mine cleaned the remaining gold out of all of the mine's sluice boxes; their efforts yielded a total of approximately sixty-five ounces of gold. Based on his experience with the mine's operations, his pre-theft observations, and the quantity of gold remaining after the theft, Seuffert estimated that the thieves had stolen thirty-five ounces of gold.

Noffsinger did not testify at the sentencing hearing, relying instead on his claims to the troopers and to the author of the presentence report that the four ounces of gold seized by the troopers represented about half of the total amount stolen. Noffsinger argued at the sentencing hearing that these claims were more credible than Seuffert's speculative extrapolation.

Judge Greene, however, found Seuffert's estimate credible and concluded that "it's more likely true than not true that right around 35 ounces of gold were taken." Deducting the four ounces of gold recovered by the troopers, and multiplying the remainder by $267.50, Judge Greene calculated the value of the unrecovered gold to be approximately $8,300. The judge ordered Noffsinger to pay the full amount of restitution, noting that he would be jointly and severally liable with his accomplice, Hunt (who had absconded and whose whereabouts were unknown).

On appeal, Noffsinger first claims that Judge Greene did not properly determine the amount of restitution. He alleges, initially, that the judge failed to make an adequate inquiry into his ability to pay. See Ratliff v. State, 798 P.2d 1288, 1293 (Alaska App.1990). However, the presentence report contained a full account of Noffsinger's employment history and summarized his financial condition at the time of the offense. Although Noffsinger actively disputed the correct amount of restitution, at no point did he raise any question concerning his ability to pay; in fact, Noffsinger affirmatively urged the court to impose restitution in the amount he estimated to be correct.

There is nothing in the record indicating that Noffsinger cannot realistically be expected to pay the $8,300 in restitution over the course of his five-year probationary term. Given the totality of the circumstances, we conclude that further inquiry into Noffsinger's ability to pay was unnecessary.

Noffsinger further alleges that there was insufficient evidence to support the court's finding that thirty-five ounces of gold were taken in the theft. An award of restitution must be supported by substantial evidence. Harris v. State, 678 P.2d 397, 408 (Alaska App.1984), rev'd on other grounds, Stephan v. State, 711 P.2d 1156 (Alaska 1985). If uncertainty exists, the appropriate amount for restitution must be proved by a preponderance of the evidence. See Brakes v. State, 796 P.2d 1368, 1372 n. 5 (Alaska App.1990). When the accused, on appeal, challenges the sufficiency of the evidence as to restitution, this court does not pass on issues of credibility, which remain within the sole province of the sentencing court. See Anthony v. State, 521 P.2d 486, 492 (Alaska 1974). Instead, as in other situations involving claims of insufficient evidence, we construe the record in the light most favorable to the state and determine whether a reasonable fact-finder could conclude that the disputed amount of restitution was established by a preponderance of the evidence.

Noffsinger argues that Seuffert's extrapolation of the amount of gold stolen was too speculative to rely on. Noffsinger points out that Seuffert never established precisely...