Sigler v. Commonwealth
Decision Date | 02 April 2013 |
Docket Number | Record No. 0822–12–1. |
Citation | 61 Va.App. 674,739 S.E.2d 272 |
Parties | Edward Hines SIGLER v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Shawn W. Overbey (Heath, Overbey & Verser, PLC, Newport News, on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FRANK, HUFF and CHAFIN, JJ.
Edward Hines Sigler, appellant, pled guilty to one count of burglary, in violation of Code § 18.2–91, and five counts of grand larceny, in violation of Code § 18.2–95. On appeal, appellant only challenges the amount of restitution ordered on Indictment No. 01431–11, grand larceny. For the reasons stated, we affirm.1
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).
As part of the stipulated evidence at trial, the Commonwealth proffered that the following items were stolen from L.F.'s (the victim) home: “silver necklaces, 61; three gold bangles; bracelets, three of them; 19 times 7 earrings, pairs of earrings, and a gold ring with diamonds.” At the sentencing hearing, the Commonwealth proffered the value of the items stolen from L.F.'s house in order to determine the amount of restitution. The following exchange occurred:
Appellant did not cross-examine L.F. on her testimony concerning the value of the stolen property.
The trial court sentenced appellant and ordered restitution in the amount of $2,000.
This appeal follows.
Appellant contends the evidence of L.F.'s loss is speculative, therefore failing to meet the burden of proving the amount of loss by a preponderance of the evidence.4
“When considering a challenge to the sufficiency of the evidence to sustain a conviction, [an appellate court] reviews ‘the evidence in the light most favorable to the prevailing party at trial and consider[s] all inferences fairly deducible from that evidence.’ ” Clark v. Commonwealth, 279 Va. 636, 640, 691 S.E.2d 786, 788 (2010) (quoting Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)). We “will not set aside the factual findings of the trial court unless those findings are ‘plainly wrong or without supporting evidence.’ ” Williams v. Commonwealth, 52 Va.App. 194, 197, 662 S.E.2d 627, 628–29 (2008) (quoting Foster v. Commonwealth, 38 Va.App. 549, 554, 567 S.E.2d 547, 549 (2002)). Further, the fact finder, “who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts.” Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998).
“At the time of sentencing, the court shall determine the amount to be repaid by the defendant and the terms and conditions thereof.” Code § 19.2–305.1(D)5; see also Alger v. Commonwealth, 19 Va.App. 252, 257, 450 S.E.2d 765, 768 (1994).
A trial court has “wide latitude” to make sentencing decisions such as the ordering of restitution, Deal v. Commonwealth, 15 Va.App. 157, 160, 421 S.E.2d 897, 899 (1992), because “[t]he determination of sentencing lies within the sound discretion of the trial court,” Martin v. Commonwealth, 274 Va. 733, 735, 652 S.E.2d 109, 111 (2007). “A sentencing decision will not be reversed unless the trial court abused its discretion.” Id. “On appeal, where the restitutionary amount is supported by a preponderance of the evidence and is ‘reasonable in relation to the nature of the offense,’ the determination of the trial court will not be reversed.” McCullough v. Commonwealth, 38 Va.App. 811, 817, 568 S.E.2d 449, 451–52 (2002) (quoting Deal, 15 Va.App. at 160–61, 421 S.E.2d at 899);see Smith v. Commonwealth, 52 Va.App. 26, 30 n. 2, 660 S.E.2d 691, 693 n. 2 (2008) ( ). Furthermore, “ ‘[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.’ ” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743 (2005)).
Burriesci v. Commonwealth, 59 Va.App. 50, 55–56, 717 S.E.2d 140, 143 (2011).
In Smith, 52 Va.App. 26, 660 S.E.2d 691, we upheld the “settled principle that a victim of theft may offer his own opinion on the value of the stolen property.” Id. at 30, 660 S.E.2d at 693. In that case, we concluded that the trial court was not wrong to rely on victim loss statements, or to use them in fashioning the restitution award. Id. at 33, 660 S.E.2d at 694. Essentially, the Smith Court restated the principle that at sentencing, the court, “ ‘in determining the appropriate amount of restitution, may consider hearsay evidence that bears “minimal indicia of reliability” so long as the defendant is given an opportunity to refute that evidence.’ ” Id. (quoting United States v. Bourne, 130 F.3d 1444, 1447 (11th Cir.1997)) (other citation omitted). We should note that appellant offered no such evidence.
While L.F.'s list of stolen items was not offered into evidence, that fact would be considered by the fact finder as to the weight of the evidence. L.F. prepared the list and certainly knew of its accuracy. A sentencing court may appropriately consider hearsay “to establish an appropriate amount of restitution.” McCullough, 38 Va.App. at 816, 568 S.E.2d at 451.See also6 Wayne R. LaFave, Criminal Procedure § 26.5(a), at 802 (3d ed.2007) ( ). “This broad rule of inclusion is tempered by the requirement that the information bear some indicia of reliability.” Moses v. Commonwealth, 27 Va.App. 293, 302, 498 S.E.2d 451, 456 (1998) (citing Alger, 19 Va.App. at 258, 450 S.E.2d at 768).
L.F.'s list, an unsworn “out of court” statement, was the type of statement allowed as evidence of the victim's loss.
McClain v. Commonwealth, 189 Va. 847, 859–60, 55 S.E.2d 49, 55 (1949) (quoting Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949)).
L.F.'s list clearly bears “some indicia of reliability.” She assessed the value of the stolen items not recovered, and she gave that information to her insurance carrier and the police. The prosecutor proffered without objection that the police officer “has a comprehensive list” and that this assessment of the items was “about two thousand dollars....” L.F. submitted the list to the police as part of their investigation of the crime, and to L.F.'s insurance carrier as part of her claim. It is reasonable to believe that L.F. provided her insurance company with an accurate claim of loss. See Allstate Insurance Co. v. Charity, 255 Va. 55, 59, 496 S.E.2d 430, 431–32 (1998) (). Further, the trial court could reasonably infer that L.F. would not exaggerate her claim of loss and risk the chance of her insurance carrier denying her claim altogether. See C.C. Vaughan & Co. v. Va. Fire & Marine Ins. Co., 102 Va. 541, 545, 46 S.E. 692, 694 (1904) ().
As in Smith, appellant did not cross-examine L.F. on the values contained in the list but had the opportunity to do so. At oral argument, appellant contended he never had an opportunity to cross-examine L.F. as to the value of the stolen property because the list prepared for the police and the insurance carrier was not before the court. This contention is unpersuasive and is belied by the record. L.F. was on the stand. She acknowledged she had prepared such a list and provided the list to the police and the insurance carrier. The Commonwealth proffered that the list indicated “about two thousand dollars....” Appellant certainly could have inquired of L.F. the specific items stolen or how she determined value. If appellant thought he needed to...
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