State v. Snouffer
| Decision Date | 13 October 2015 |
| Docket Number | No. 2 CA-CR 2014-0344,2 CA-CR 2014-0344 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JENNIFER MICHELLE SNOUFFER, Appellant. |
| Court | Court of Appeals of Arizona |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge
VACATED IN PART; AFFIRMED IN PART
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Brammer1 concurred.
¶1 Following a jury trial in absentia, Jennifer Snouffer was convicted of class four felony theft by control and/or by controlling stolen property and trafficking in stolen property. On appeal, she argues the trial court erred by ordering restitution to the victim, E.R., for certain unrecovered items and for amounts E.R. paid to Snouffer's employer. Because we conclude the court abused its discretion in finding that Snouffer directly caused the loss of the unrecovered items, and because the wages paid by E.R. were not economic losses caused by Snouffer's criminal conduct, we vacate the portion of the restitution order relating to E.R., but otherwise affirm.
¶2 We view the evidence relating to restitution in the light most favorable to sustaining the trial court's order. State v. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d 409, 412 (App. 2009). In September 2010, E.R. hired Christian Companions to provide twenty-four-hour, in-home, non-medical care for her husband. Snouffer worked as a caregiver for Christian Companions and occasionally worked at E.R.'s home. After Snouffer left on the morning of December 3, E.R. noticed some of her jewelry was missing. A Pima County Sheriff detective discovered that Snouffer had pawned one piece of E.R.'s jewelry on November 7 and another twelve pieces on November 28,and detectives later found several additional pieces of E.R.'s jewelry in Snouffer's home.
¶3 At the grand jury hearing, the detective testified that E.R. initially had said the value of all the stolen items was "roughly under $10,000" and the value of the recovered jewelry specifically was between $3,000 and $4,000. The grand jury then indicted Snouffer for theft by control and/or controlling stolen property with a value between $3,000 and $4,000, a class four felony, A.R.S. § 13-1802(G), and first-degree trafficking in stolen property, A.R.S. § 13-2307(B).
¶4 After the grand jury hearing, but before trial, E.R. claimed additional pieces of jewelry were missing that she had not previously remembered and that the unrecovered jewelry was valued at $40,600. The state chose not to re-indict Snouffer based on E.R.'s revised valuation and the case proceeded to trial on the class four felony charge of theft by control and/or controlling stolen property. The parties agreed to limit the evidence at trial to the recovered jewelry. The parties additionally agreed the trafficking charge would be limited to the jewelry pawned on November 28, and the trial court amended the indictment accordingly. A jury subsequently found Snouffer guilty of both counts. The court suspended the imposition of sentence and placed Snouffer on concurrent terms of probation, the longest of which is five years.
¶5 E.R. then filed a restitution affidavit requesting $40,600 for the unrecovered jewelry, which included approximately eleven additional pieces of jewelry and four sterling silver dinner knives, $500 for the insurance deductible she had paid for her claim on all of the stolen items, and $2,146.42 for wages she had paid to Christian Companions for Snouffer's services. Following a restitution hearing, the trial court ordered Snouffer to pay E.R. restitution in the amount of $43,246.42 for "unrecovered jewelry and other items stolen, [E.R.'s] insurance deductible and wages she paid to [Snouffer]." The court additionally ordered Snouffer to pay restitution to the pawn shops and E.R.'s insurance company. We have jurisdiction over Snouffer's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). See State v. Fancher, 169 Ariz. 266, 266 n.1, 818 P.2d251, 251 n.1 (App. 1991); see also Ariz. R. Crim. P. 31.3(b) and 32.1(f) ().
¶6 Our review of the record revealed that Snouffer was not present at the restitution hearing or when the trial court issued its restitution order. Snouffer did not raise a presence issue below or on appeal. However, because a presence error can be structural error, State v. Forte, 222 Ariz. 389, ¶ 15, 214 P.3d 1030, 1035 (App. 2009), and reversal is mandated if we find such error, State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 236 (2009), we must determine whether such error occurred here.
¶7 A defendant's physical presence is required at sentencing, which includes the imposition of restitution. Ariz. R. Crim. P. 26.9; see also State v. Lewus, 170 Ariz. 412, 414, 825 P.2d 471, 473 (App. 1992). The trial court therefore erred in imposing restitution without Snouffer's presence. See Lewus, 170 Ariz. at 414, 825 P.2d at 473. Because Snouffer did not object below, she is entitled to relief only if "the error was fundamental and prejudicial, or . . . structural and therefore prejudicial per se." Forte, 222 Ariz. 389, ¶ 14, 214 P.3d at 1035.
¶8 A presence error can amount to structural error when it "so undermine[s] the integrity of the trial process that [it] will necessarily fall within that category of cases requiring automatic reversal." State v. Garcia-Contreras, 191 Ariz. 144, ¶ 16, 953 P.2d 536, 540 (1998), quoting Hegler v. Borg, 50 F.3d 1472, 1476 (9th Cir. 1995) (second alteration in Garcia-Contreras). This court therefore must evaluate "'the character of the proceeding from which the defendant was excluded . . . to ascertain the impact of the constitutional violation on the overall structure of the criminal proceeding.'" Id., quoting Hegler, 50 F.3d at 1477.
¶9 The purpose of the rule requiring a defendant to be present at sentencing is to ensure "essential warnings and information regarding appeal . . . [are] given after sentence is pronounced." Ariz. R. Crim. P. 26.9 cmt.; see State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983). It also allows the defendant to"exercise [her] right to allocution," and provides "a chance for the judge to personally question and observe the defendant." Fettis, 136 Ariz. at 59, 664 P.2d at 209.
¶10 Snouffer was present at the first sentencing hearing at which the trial court ordered she be placed on probation, ordered the fines and fees she was required to pay, and ordered restitution to the pawn shops and insurance company. Because the state was not prepared with an exact amount of the restitution owed to E.R., the court scheduled a restitution hearing on the matter. Snouffer's counsel waived her presence at the restitution hearing. The court then set the amount of restitution in a subsequent ruling.
¶11 Because Snouffer was present at the initial sentencing hearing, the trial court was able to provide her the "essential warnings and information regarding appeal." She also was given the opportunity to speak, which she declined, and the court was able to personally observe her demeanor. And she actually appealed the restitution order. The purposes of requiring a defendant's presence at sentencing therefore were met in this case. See Forte, 222 Ariz. 389, ¶ 21, 214 P.3d at 1036 (), quoting Fettis, 136 Ariz. at 59, 664 P.2d at 209.
¶12 Snouffer also waived her right to be present at the restitution hearing. State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992) (). And, in her absence, Snouffer's attorney actively participated in the process and was able to "contest the information on which the [restitution] award w[as] based." See Lewus, 170 Ariz. at 414, 825 P.2d at 473. The trial court's error in ordering restitution to E.R. in Snouffer's absence thus did not "so insult[] the basic framework of a criminal sentencing such that the proceeding could no longer serve its core function" and was not structural. See Forte, 222 Ariz. 389, ¶¶ 16, 20-21, 214 P.3d at 1035-36.
¶13 Furthermore, because, as discussed above, Snouffer was not prejudiced by her absence at the hearing, the error is notfundamental and prejudicial. Id. ¶ 14; see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (). Thus, although the trial court erred in imposing restitution in Snouffer's absence, because the error does not mandate reversal, we address Snouffer's arguments on appeal.
¶14 Snouffer first argues the trial court abused its discretion in ordering her to pay restitution for the unrecovered jewelry because class four theft is limited to a $3,000 to $4,000 range—"the value of the recovered jewelry"—and thus she never was charged with or convicted of the theft or trafficking of the unrecovered items. See A.R.S. § 13-1802(G). We review a court's restitution order for an abuse of discretion. State v. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d 409, 411 (App. 2009). "A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles." State v. Jackson, 208 Ariz. 56, ¶ 12, 90 P.3d 793, 796 (App. 2004).
¶15 F...
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