State v. Corbitt, 20020375-CA.

• Decision Date: 04 December 2003
• Docket Number: No. 20020375-CA.,20020375-CA.
• Citation: 2003 UT App 417,82 P.3d 211
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jamil K. CORBITT, Defendant and Appellant.
• Court: Utah Court of Appeals

82 P.3d 211

2003 UT App 417

STATE of Utah, Plaintiff and Appellee, v. Jamil K. CORBITT, Defendant and Appellant.

No. 20020375-CA.

Court of Appeals of Utah.

December 4, 2003.

Heather Johnson, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.

OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Jamil Corbitt appeals from an order of restitution stemming from his conviction for possession of a stolen vehicle, a second degree felony, in violation of Utah Code Annotated section 41-1a-1316(2) (1998). We affirm.

BACKGROUND

¶ 2 In January 2001, Roman and Francesca Lopez (the Lopezes) purchased a 1998 Dodge Dakota (the truck) from an auto dealership in Murray for $15,995.00. Concurrently, the Lopezes purchased a thirty-six month or 80,000 mile service contract for $1,999.00 and paid $1,123.92 for taxes and licensing fees. In total, the Lopezes paid $19,117.92. To finance the purchase, the Lopezes made a $500.00 down payment, traded in another vehicle for a net trade-in allowance of $1,475.00, and obtained a bank loan for the remaining balance of $17,142.92. The loan carried an annual interest rate of 16.6% and required monthly payments of $425.63 for sixty months.

¶ 3 About two weeks later, in February 2001, the truck was stolen from the Lopezes' residence. On the day of the theft, the Lopezes contacted police and their insurance company. The police listed the truck in the stolen vehicle database and began efforts to locate it. Ultimately, the insurance company took title to the truck and paid $12,489.10 to the Lopezes' lender. However, the Lopezes testified that they were still obligated to continue making monthly payments on the unpaid balance of their loan. Accordingly, the Lopezes made loan payments of $425.63 in both February and March 2001. By the time of the restitution hearing, the Lopezes testified they still owed $4,772.46 to the lender.

¶ 4 On April 16, 2001, during a traffic stop, a Salt Lake County Sheriff's deputy learned that Corbitt was driving the Lopezes' stolen truck. The State filed charges against Corbitt for illegal possession of a stolen vehicle. Corbitt admitted he knew the truck was stolen and pleaded guilty as charged. ¶ 5 As part of his sentence, the trial court ordered Corbitt to pay restitution to the Lopezes. Corbitt requested a restitution hearing. After the hearing, Corbitt was ordered to pay a total of $5,623.72 in restitution. At Corbitt's request, the trial court indicated on the record that $4,772.46 constituted "the difference between the price that was paid [for the truck] and what was paid to [the Lopezes] by [the] insurance company." The remaining $851.26 was for "the two [monthly loan] payments [the Lopezes] made while the [truck] was gone." The trial court issued written findings of fact and conclusions of law ordering Corbitt to pay the $5,623.72 in restitution in $150.00 monthly installment payments until the balance was repaid. Corbitt appeals.

ISSUE AND STANDARD OF REVIEW

¶ 6 Corbitt contends the trial court erred in ordering him to pay any restitution after the insurance company paid the Lopezes' claim. "Trial courts are vested with `wide latitude and discretion in sentencing,'" State v. Fedorowicz, 2002 UT 67, ¶ 63, 52 P.3d 1194 (quoting State v. Woodland, 945 P.2d 665, 671 (Utah 1997)), and we "`will not disturb a trial court's restitution order unless it exceeds that prescribed by law or otherwise abused its discretion.'" State v. Mast, 2001 UT App 402, ¶ 7, 40 P.3d 1143 (quoting State v. Breeze, 2001 UT App 200, ¶ 5, 29 P.3d 19). "[T]he exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).

ANALYSIS

I. Pecuniary Damages Under the Restitution Statute

¶ 7 First, Corbitt argues the trial court erred in concluding the Lopezes suffered pecuniary damages. Corbitt asserts that under Utah Code Annotated sections 77-38a-101 to -302 (Supp.2002)¹ (the restitution statute), any losses the Lopezes sustained are not "pecuniary damages" of the type required for a crime victim to receive restitution. See id. § 77-38a-102(6). Furthermore, Corbitt contends that any losses sustained by the Lopezes were not the result of Corbitt's admitted criminal conduct. See id. We disagree on both accounts.

¶ 8 The restitution statute provides:

"Pecuniary damages" means all special damages, but not general damages,² which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes the money equivalent of property taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical expenses.

Id.

¶ 9 "[T]he record in the case before us reflects that the State presented evidence which would support a civil conversion action against [Corbitt]," State v. McBride, 940 P.2d 539, 543 (Utah Ct.App.1997), as well as an award of damages from such an action. We have stated that generally, "the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest." Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994). Further, "[t]he damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant's wrong." Id. (quotations and citations omitted). Finally, "[t]he primary objective in rendering an award of damages for conversion is to award the injured party full compensation for actual losses." Id. (quotations and citations omitted). Hence, "rules relating to the measure of damages are flexible, and can be modified in the interest of fairness." Id. (quotations and citations omitted).

¶ 10 Corbitt argues that because the insurance company paid the Lopezes' claim, the Lopezes were "fully reimbursed" for all losses they sustained and thus did not suffer pecuniary damages. Therefore, Corbitt argues that the trial court's order of restitution "go[es] beyond the victims' pecuniary damages [in] violation of the restitution statute." In support of this argument, Corbitt relies on State v. Twitchell, 832 P.2d 866 (Utah Ct.App.1992). We think Corbitt misreads the Twitchell holding.

¶ 11 In Twitchell, the defendant admitted taking premium payments from his victims on nonexistent insurance policies. See id. at 867. However, the defendant argued that the misappropriated premium payments "did not represent ... actual loss[es] to the victims" because "he paid any claims victims made on the nonexistent policies and victims who had no claims were no more damaged than if they had been fully insured." Id. at 868. As such, the defendant argued the misappropriated premium payments could not be legally classified as "pecuniary damages" under the restitution statute. Id. We rejected this argument as "untenable" and held "[t]he [restitution] statute's definition of pecuniary damages includes the misappropriated policy payments ..., even though the victims were fortunate enough to suffer no major losses during the time they were uninsured." Id. at 869. Furthermore, "[the defendant] admitted in his plea agreement ... the very facts and elements necessary to prove liability in a civil proceeding for conversion." Id. at 870. As such, the losses created by the defendant's misappropriations in Twitchell constituted "`special damages..., which [the victims] could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities.'" Id. at 869 (quoting Utah Code Ann. § 76-3-201(4)(b) (1990)). Based on this reasoning, we held the trial court did not abuse its discretion or exceed its legal authority by finding the victims' losses were "`[p]ecuniary damages'" under the restitution statute. Id. (quoting Utah Code Ann. § 76-3-201(4)(b) (1990)).

¶ 12 Similarly, in this case Corbitt contends that because the Lopezes received an insurance payment on their claim for the stolen truck, the Lopezes sustained no "actual loss" and therefore had no "pecuniary damages" as a result of Corbitt's criminal activity. Corbitt's argument parallels the defendant's "untenable" argument in Twitchell, id.832 P.2d at 869, and we are equally unpersuaded. First, as in Twitchell, Corbitt admitted in his plea affidavit the elements necessary to prove a conversion claim. Second, notwithstanding any subsequent insurance payment on behalf of the Lopezes,³ the fact remains that by Corbitt's admitted illegal possession of the stolen truck, Corbitt inflicted on the Lopezes "special damages... includ[ing] the money equivalent of property taken ... and [other] losses," "which [the Lopezes] could recover against [Corbitt] in a civil action" for conversion. Utah Code Ann. § 77-38a-102(6) (Supp.2002). Hence, a plain reading of the restitution statute reveals that the Lopezes did suffer "pecuniary damages" as contemplated by the restitution statute. See id. Furthermore, by admitting his guilt on the charge of possessing a stolen vehicle, Corbitt "firmly established" his responsibility for the pecuniary damages resulting from his criminal conduct, State v. Mast, 2001 UT App 402, ¶ 13, 40 P.3d 1143 (quoting State v. Watson, 1999 UT App 273, ¶ 5, 987 P.2d 1289 (per curiam)), and he cannot now be heard to argue otherwise on appeal. Accordingly, we hold the trial court did not abuse its discretion or exceed its authority in determining the Lopezes sustained pecuniary damages caused by Corbitt's criminal activity for purposes of the restitution statute.⁴

II. Amount of Restitution

¶ 13 Second, Corbitt argues the trial...