State v. Morse

Citation106 A.3d 902,2014 VT 84
Decision Date25 July 2014
Docket NumberNo. 13–045.,13–045.
CourtUnited States State Supreme Court of Vermont
PartiesSTATE of Vermont v. Phillip MORSE.

Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for PlaintiffAppellee.

Matthew F. Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for DefendantAppellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

Opinion

REIBER, C.J.

¶ 1. Defendant appeals a restitution order requiring him to pay $2,427.36 for damage to a car. On appeal, defendant argues that (1) the State failed to meet its burden of demonstrating that the victim's loss was uninsured; (2) the court failed to make a specific finding that the damage was uninsured; (3) the court erred in admitting and using a repair estimate because it was hearsay; and (4) the court erred in calculating the amount of restitution by using the cost of repair rather than the difference in fair market value before and after the accident. We affirm.

¶ 2. The charges in this case stem from an incident in October 2012 between defendant and his ex-girlfriend. The ex-girlfriend was driving her mother's car when defendant followed her, passed her, and then stopped in the middle of the roadway. When the ex-girlfriend tried to pass, defendant swerved his truck, damaging the car's right side. Defendant was charged with aggravated domestic assault, aggravated stalking, negligent operation of a vehicle and reckless endangerment. In November 2012, defendant pleaded guilty to grossly negligent operation and reckless endangerment, and the State dismissed the other charges. Defendant was sentenced to two-to-five years.

¶ 3. The State requested restitution. The ex-girlfriend testified at the restitution hearing. She explained that she was driving her mother's green car when defendant crashed his red truck into the car, causing damage to the front and back passenger doors. She described that there were scratches up and down the side of the door, the back door was dented in and there was red paint on the side of the car. She also testified that none of the damage was present before defendant's truck hit the car. She testified that she had no automobile insurance.

¶ 4. The car owner, the ex-girlfriend's mother, also testified. She explained that she obtained an estimate for the repairs. Defense counsel questioned the car owner about the estimate during voir dire, and she admitted that she knew little about vehicles and could not elaborate on the meaning of particular items in the estimate. Defendant moved to exclude the estimate as hearsay. Upon further questioning by the State, the witness clarified that there was no other damage to her vehicle prior to October 2012, and the estimate was to repair damage caused by the October

2012 collision. The court admitted the estimate in conjunction with the owner's testimony. The car owner also testified that she did not have collision insurance. She explained that she had tried to get information from the state's attorney about defendant's insurance, but did not receive a response to her request.

¶ 5. Defendant's cousin, who is a friend of the ex-girlfriend, testified for defendant. She stated that there were dents in the car prior to the October 2012 accident. She also testified that she did not notice additional damage after the accident.

¶ 6. The court made findings on the record. The court found that the State had met its burden of showing that defendant crashed his truck into the vehicle driven by his ex-girlfriend and caused substantial damage to the car's right side. The court found credible the car owner's testimony that there was not any significant damage prior to the accident. The court also found that the estimate represented a fair and reasonable amount to repair the damage caused by the accident. The court issued a written form order, finding: “The victim incurred an uninsured material loss in the total amount of $2427.36.” Defendant timely appealed.

¶ 7. The purpose of the restitution statute is to compensate the victim for his or her “material loss,” 13 V.S.A. § 7043(a), which is defined as an “uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2). The State has the burden of proving “that a loss attributable to a crime victim is uninsured.” State v. Hughes, 2010 VT 72, ¶ 11, 188 Vt. 595, 5 A.3d 926 (mem.). The standard of proof is a preponderance of the evidence. State v. VanDusen, 166 Vt. 240, 245, 691 A.2d 1053, 1055 (1997).

¶ 8. On appeal, defendant first argues that the State failed to meet its burden of proving that the damage was not insured. Although the State introduced testimony from the car owner that her insurance did not cover the damage and that she did not receive any information in response to her inquiries regarding defendant's insurance, defendant contends that the State failed to meet its burden of proving that defendant lacked insurance to cover the damage.

¶ 9. We conclude that the State's failure to affirmatively demonstrate that defendant lacked insurance does not require reversal because defendant has not demonstrated or even alleged that the victim's loss was covered by his insurance, and therefore

that, if such an inquiry had been made at the restitution hearing, the result would have been different. See United States v. Zangari, 677 F.3d 86, 96 (2d Cir.2012) (holding that there was no unfair prejudicial impact where defendant did not show that restitution would have been less if error had not occurred). If, in fact, defendant has insurance coverage, he will not suffer any prejudice because any payment from his insurer will operate as a credit against his restitution obligation.1 Therefore, any error was harmless. See V.R.Cr.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).

¶ 10. Relatedly, defendant argues that the court failed to make a specific finding that the damage was uninsured. Defendant focuses on the court's on-the-record findings made at the conclusion of the restitution hearing, which did not mention insurance. However, in addition to those findings, the court issued a written form restitution order. On that order, the court checked the box, finding specifically that [t]he victim incurred an uninsured material loss.” Defendant claims that this finding in the written order is not sufficient because it conflicts with the court's earlier oral findings. That the court did not mention insurance in its oral findings does not conflict with its subsequent written finding that the victim suffered an uninsured loss. The finding on the written order was sufficient to demonstrate that the court found the loss was uninsured. See Hanson–Metayer v. Hanson–Metayer, 2013 VT 29, ¶¶ 45–46, 193 Vt. 490, 70 A.3d 1036 (holding that written findings control).

¶ 11. Next, defendant contends that the court erred in admitting and using a repair estimate because it was hearsay. At trial, the car owner testified concerning the cost of repairs to her vehicle, and the State sought to admit an estimate of the repair cost. Defendant objected that there was an insufficient basis to admit

the document and, following a voir dire, the court admitted the repair estimate in conjunction with the victim's testimony. On appeal, defendant contends that the estimate was hearsay and admission was error.

¶ 12. Hearsay is a statement made by someone not testifying at trial “offered in evidence to prove the truth of the matter asserted.” V.R.E. 801(c). Hearsay is not admissible unless it fits within an exception. V.R.E. 802. The court's evidentiary rulings are reviewed for an abuse of discretion. See State v. Burke, 2012 VT 50, ¶ 23, 192 Vt. 99, 54 A.3d 500.

¶ 13. We agree that the estimate was hearsay since the author of the estimate did not testify at trial, and it was introduced to prove the truth of the car owner's claim for damages.2 See Towle v. St. Albans Publ'g Co., 122 Vt. 134, 139, 165 A.2d 363, 366 (1960) (holding that it was error to admit letter where author did not testify and contents were used to support damage award). Nonetheless, we conclude there was no error in admitting the estimate because the Rules of Evidence do not apply in restitution proceedings.

¶ 14. Under Vermont Rule of Evidence 1101(b)(3), the rules of evidence are not applicable in sentencing proceedings. Restitution is part of sentencing, and thus employs rules that “are less formal than in the criminal trial.” VanDusen, 166 Vt. at 245, 691 A.2d at 1055. Further, there is no constitutional bar to admission of hearsay at restitution. “A sentencing hearing is not a guilt-determining proceeding. Therefore, the Confrontation Clause does not prohibit the introduction of hearsay testimony.” State v. Gallagher, 150 Vt. 341, 350, 554 A.2d 221, 226–27 (1988).

¶ 15. This conclusion is supported by both federal and state cases. Vermont Rule 1101 employs similar language to the parallel

federal rule, which also states that the rules of evidence do not apply to “sentencing.” F.R.E. 1101(d)(3). Federal courts interpreting this language have concluded that because restitution is part of sentencing it is not governed by the rules of evidence. See United States v. Gushlak, 728 F.3d 184, 197 n. 10 (2d Cir.2013) (explaining that because rules of evidence do not apply at sentencing proceedings, admission of expert testimony in restitution cases is not governed by F.R.E. 702 ); United States v. Yeung, 672 F.3d 594, 606 (9th Cir.2012) (holding that federal rules of evidence not applicable to restitution hearing and no error to admit hearsay), abrogated on other grounds by Robers v. United States, ––– U.S. ––––, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014) ; United States v. Sunrhodes, 831 F.2d 1537, 1543 (10th Cir.1987) (holding that restitution is part of sentencing and that defendant has no right to confrontation).

¶ 16....

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  • State v. Baker
    • United States
    • Vermont Supreme Court
    • October 6, 2017
    ...with our previous decisions. For example, in State v. Morse, the defendant crashed his truck into a car owned by the car driver's mother. 2014 VT 84, ¶ 22, 197 Vt. 495, 106 A.3d 902. While not stating it explicitly, we defined the mother as a victim for purposes of restitution and affirmed ......
  • State v. Willis
    • United States
    • Minnesota Supreme Court
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    ... ... 2010) (same, reasoning that "restitution is a sentencing determination"); In re James C. , 871 A.2d 940, 943 (R.I. 2005) (same); State v. Weeks , 61 P.3d 1000, 1004 (Utah 2002) (same, reasoning that "a restitution hearing clearly qualifies" as a sentencing proceeding); State v. Morse , 197 Vt. 495, 106 A.3d 902, 906-07 (2014) (same, because "[r]estitution is part of sentencing"). And other states have determined outside of any specific rule that restitution hearings, as part of sentencing, do not require the strict application of their rules of evidence. See State v ... ...
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    ...example, restitution is a sentencing condition. See 28 V.S.A. § 252(6) (referring to restitution as "a condition of the sentence"); State v. Morse, 2014 VT 84, ¶ 14, 197 Vt. 495, 106 A.3d 902 ("Restitution is part of sentencing."). In sentencing, a trial court considers whether a condition ......
  • State v. Baker
    • United States
    • Vermont Supreme Court
    • October 6, 2017
    ...with our previous decisions. For example, in State v. Morse, the defendant crashed his truck into a car owned by the car driver's mother. 2014 VT 84, ¶ 22, 197 Vt. 495, 106 A.3d 902. While not stating it explicitly, we defined the mother as a victim for purposes of restitution and affirmed ......
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