State v. Hughes

• Decision Date: 04 August 2010
• Docket Number: No. 09-130.,09-130.
• Citation: 5 A.3d 926,2010 VT 72
• Parties: STATE of Vermont, v. Michael HUGHES.
• Court: Vermont Supreme Court

5 A.3d 926
2010 VT 72

STATE of Vermont,
v.
Michael HUGHES.

No. 09-130.

Supreme Court of Vermont.

Aug. 4, 2010.

5 A.3d 928

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Late on a Saturday night in the parking lot of a Price Chopper grocery store, defendant Michael Hughes joined in the theft and destruction of three motorized shopping carts. Today he appeals a portion of his punishment and specifically requests that this Court vacate the Bennington District Court's order of joint and several restitution. We affirm.

¶ 2. The facts are straightforward and uncontested. On the evening of May 10, 2008, defendant and two companions visited a Price Chopper in Bennington, Vermont. While he was inside the store purchasing cigarettes, defendant's companions took two motorized shopping carts out of the store's vestibule and began driving around the parking lot. Upon exiting the store, defendant joined his friends, driving a third cart out of the store. They eventually drove onto a public street, over a pedestrian bridge, down a path, and into a river. Though the store was able to recover the carts from the river, they were all irreparably damaged when their electric motors contacted the water.

¶ 3. Defendant was subsequently charged with one count of grand larceny for stealing "electric shopping carts, having a value in excess of $900.00, in violation of 13 V.S.A. § 2501" and one count of unlawful mischief for damaging property with a value exceeding $1000, in violation of 13 V.S.A. § 3701(a). He eventually accepted a plea agreement, admitting guilt to the two charged offenses. At his plea hearing, defendant specifically pled guilty to taking the "electric shopping carts." The trial court sentenced him to sixteen to twenty-eight months. The court also ordered him to pay $3573 in restitution to the store under Vermont's restitution statute, 13 V.S.A. § 7043(a)(1) ( "Restitution shall be considered in every case in which a victim of a crime ... has suffered a material loss [including an 'uninsured property loss,' id. § 7043(a)(2) ].").

¶ 4. At the restitution hearing, defendant described his actions preceding the crime, explaining that he and his companions "decided to get on these mart carts. That's when we went to Price Chopper." After confirming that defendant and the other two individuals all drove the carts off the parking lot together, the trial court asked if all three were together "when ... the carts got driven down the path and into the water?" Defendant answered affirmatively. The court then went on: "You all were there, and you all were talking about putting them in the water; is that right?" To which defendant responded: "Yes, it was a joint decision." The court then specifically found that defendant's acts were

a childish lark that depended on mutual encouragement by all three of the participants. In the Court's view, one person didn't drive one cart off. They all got on carts, they all thought it was fun, and they all encouraged one another to drive the carts off the property, which was the beginning of the crime.... The discussions that occurred were concluded when, as [defendant] described it, they drove each of [the carts], all three together, down a path, and within seconds of one another, all the carts ended up in the river.

¶ 5. The State called the store's loss-prevention manager, a twenty-nine-year employee of Price Chopper, to testify to the replacement cost of the electric carts. He stated that each cart was worth $1191, making the total loss to the store $3573 for all three carts. The witness also explained that the store carried limited insurance:

5 A.3d 929

"Anything after $350,000 we're insured for. Anything before that, we take the loss on." At the close of the hearing, the court imposed "joint and several responsibility for the entire loss in this case" upon defendant individually.

¶ 6. Appealing this restitution order, defendant makes two claims. Primarily, he argues that Vermont's restitution statute does not permit joint and several liability. He contends the statute limits restitution to damage directly caused by a crime, and thus he can be liable only for harm to the cart he personally drove into the river. His second claim is that the State failed to meet its burden in proving that the store's losses were uninsured as required by the restitution statute. Specifically defendant suggests that the trial court erred by placing the burden of proving the store was not insured on him and by improperly ignoring evidence that the store's form of self-insurance precluded restitution under the statute. We find no error in the trial court's...