State v. Kenvin

• Decision Date: 04 November 2011
• Docket Number: No. 10–138.,10–138.
• Citation: 38 A.3d 26,2011 VT 123
• Parties: STATE of Vermont v. Joseph KENVIN.
• Court: Vermont Supreme Court

2011 VT 123

38 A.3d 26

STATE of Vermont

v.Joseph KENVIN.

No. 10–138.

Supreme Court of Vermont.

Nov. 4, 2011.

Stuart G. Schurr, Department of State's Attorneys, Montpelier, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Rachel Westropp, Montpelier, for Defendant–Appellant.

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

JOHNSON, J.

¶ 1. Defendant Joseph Kenvin appeals from a district court judgment requiring him to pay restitution and sentencing him to a term of eleven to twelve months to serve. Following a car accident that resulted in a fatality, a jury convicted defendant of negligent operation of a motor vehicle, in violation of 23 V.S.A. § 1091(a). On appeal, he contends the trial court erred in ordering him to pay restitution where: (1) the State failed to establish the amount of loss by a preponderance of the evidence; (2) the State failed to show that the loss was the direct result of the crime committed or that the decedent's family members were the direct victims of the crime; and (3) the court failed to make findings regarding his ability to pay. Defendant also contends the trial court erred in sentencing him to eleven to twelve months to serve because a sentence with a gap of thirty days between the minimum and maximum term is a fixed sentence. We reverse and remand for reconsideration of the restitution awards.

¶ 2. Defendant's conviction arose out of an accident that occurred on September 3, 2008. Defendant was traveling northbound in his pickup truck. At an intersection, defendant turned left in front of the decedent, who was traveling on a motorcycle in the opposite direction. The decedent, unable to avoid defendant's pickup truck, collided with defendant and flew off his motorcycle. He died from injuries sustained in the accident.

¶ 3. Defendant was charged with grossly negligent operation, death resulting, in violation of 23 V.S.A. § 1091(b). At trial, the court instructed the jury on the elements of the charge. The court explained that, for the jury to find defendant guilty, one of the seven elements that the State must prove was that defendant's grossly negligent operation of the motor vehicle caused the decedent's death. The court also instructed the jury on the lesser-included charge of negligent operation, id. § 1091(a), which required the State to prove that defendant “failed to exercise that amount of care that a reasonably prudent person would have exercised under the circumstances to avoid injury to others and to himself.” The court explained that the jury had to consider the lesser-included charge if it concluded that the State failed to prove an element of grossly negligent operation, death resulting, or if the jury members could not agree that the State had proven each essential element. The jury found defendant guilty of the lesser-included charge—operating a vehicle in a negligent manner—thereby acquitting him of grossly negligent operation, death resulting.

¶ 4. The court sentenced defendant to eleven to twelve months. The State requested that the court order defendant to refund the victims' compensation program, which it said “had already provided restitution for the [decedent's] family,” and to pay restitution to the decedent's wife. According to the State, the restitution covered the family's travel costs to attend the decedent's funeral, a radiology bill for the decedent not covered by insurance, and storage costs for the decedent's motorcycle.

¶ 5. Defendant objected to the award of restitution. He argued first that by acquitting him of grossly negligent operation with death resulting, the jury found that he was not legally responsible for the decedent's death. The court rejected this argument. Defendant also argued that the travel expenses were not a direct result of negligent operation. In addition, defendant objected when the State offered the restitution order. Before defense counsel could elaborate on the objection, the court stated that the travel expenses of the decedent's wife, children, grandchildren, and mother were “directly connected” to his death. Without making any findings regarding defendant's ability to pay, the court made two restitution orders on March 10, 2010. It ordered defendant to pay the decedent's wife $8,702.38 and to pay the victims' compensation program $4,970.01. Defendant appealed.

I.

¶ 6. On appeal, defendant challenges the trial court's restitution orders. Specifically, defendant argues that the restitution orders are invalid because the State failed to establish the amount of loss by a preponderance of the evidence; the State failed to show that the restitution was the direct result of the crime committed or that the family members were the direct victims of the crime; and the trial court failed to make any findings regarding defendant's ability to pay. We review the orders for an abuse of discretion. See State v. VanDusen, 166 Vt. 240, 245, 691 A.2d 1053, 1056 (1997) (affirming restitution order as within trial court's discretion). The proper interpretation of the controlling statutes is a question of law that we review de novo. State v. Bohannon, 2010 VT 22, ¶ 5, 187 Vt. 410, 996 A.2d 196.

¶ 7. We first address the substance of the restitution that defendant was ordered to pay. The court signed two restitution orders based on the totals offered by the State: one for the decedent's wife for $8,702.38, and one for the victims' compensation program for $4,970.01. Although it is not clear from the record exactly what costs were included in each restitution order, and the court made no findings in this regard, the State reported that the restitution included the costs for the decedent's wife and family to travel to the funeral, storage costs charged to the decedent's wife for his motorcycle, and a radiology bill from the decedent's hospitalization not covered by insurance. According to the State, the medical bill totaled $5,138, and an additional $7,000 of the restitution was “mostly travel.” We conclude that, of these losses, only the decedent's medical bill may be compensated through restitution.

¶ 8. The restitution statute, 13 V.S.A. § 7043, sets forth the kinds of losses that may be covered by restitution. It provides that restitution must be considered “in every case in which a victim of a crime, as defined in subdivision 5301(4) of this title, has suffered a material loss.” Id. § 7043(a)(1). The statute defines “material loss” as “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2). Most importantly for our analysis here, § 5301(4) defines “victim” as “a person who sustains physical, emotional or financial injury or death as a direct result of the commission or attempted commission of a crime or act of delinquency and shall also include the family members of a minor, incompetent or a homicide victim.”

¶ 9. Restitution may not be awarded to the decedent's wife and other family members for their travel expenses or for storing the motorcycle because the facts and law do not support a finding that these financial injuries were the “direct result” of the crime. Id. § 5301(4). We have noted that § 7043 is “much narrower” than restitution statutes in other jurisdictions and as such requires a “direct link” between the crime and the financial injury for which restitution is sought. State v. Forant, 168 Vt. 217, 223, 225, 719 A.2d 399, 403, 404 (1998) (holding that expenses incurred by domestic-assault victim to change locks and telephone number were “indirect costs” from the crime and therefore “not recoverable as restitution”); accord Bohannon, 2010 VT 22, ¶ 12, 187 Vt. 410, 996 A.2d 196 (holding that extradition costs incurred by the Department of Corrections were “simply too tenuous to trigger restitution”). As these and other decisions demonstrate, the travel and storage expenses incurred by the decedent's family are not directly linked to the offense for which defendant was convicted. Accordingly, there is no basis for the award.

¶ 10. There is statutory language, to be sure, that appears to broaden the definition of “victim” by providing that it “ also include[s] the family members of a minor, incompetent or a homicide victim.” 13 V.S.A. § 5301(4) (emphasis added). Even assuming, however, that this provision would allow restitution for financial loss where it might not otherwise qualify as a “direct result” of the offense, the provision is inapplicable here. Obviously, neither the provision for family members “of a minor” or an “incompetent” applies to the decedent. See State v. Fletcher, 2010 VT 27, ¶ 10, 187 Vt. 632, 996 A.2d 213 (mem.) (explaining that we begin with plain meaning of statute to determine and effectuate legislative intent).

¶ 11. Nor does the provision for family members of a “homicide victim” apply according to the jury's verdict. Although initially charged with grossly negligent operation, death resulting, the jury here found defendant guilty only of the lesser-included charge of negligent operation, 23 V.S.A. § 1091(a). We have repeatedly “cautioned that a restitution order may not be based on conduct that was not covered by the defendant's conviction.” State v. Rollins, 2007 VT 127, ¶ 7, 182 Vt. 644, 944 A.2d 218 (mem.) (emphasis added) (holding that defendant's conviction of attempted assault and robbery could not support restitution order for money taken from victim); see also State v. LaFlam, 2008 VT 108, ¶ 17, 184 Vt. 629, 965 A.2d 519 (mem.) (holding that defendant's conviction of driving with suspended license did not support restitution award to owner of store damaged when defendant drove into it, as there was no “direct link between the loss for which restitution [was] ordered and the conduct for which defendant [was] convicted”); Forant, 168 Vt. at 222, 719 A.2d at 403 (holding that State must demonstrate “causation between the...