State v. Vezina, 14–021.

• Citation: 121 A.3d 1195,2015 VT 56
• Decision Date: 10 April 2015
• Docket Number: No. 14–021.,14–021.
• Parties: STATE of Vermont v. Robert VEZINA.
• Court: Vermont Supreme Court

121 A.3d 1195
2015 VT 56

STATE of Vermont
v.
Robert VEZINA.

No. 14–021.

Supreme Court of Vermont.

April 10, 2015.

121 A.3d 1197

Rhonda F. Sheffield, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and MORRIS, Supr. J. (Ret.), Specially Assigned.

Opinion

ROBINSON, J.

¶ 1. Defendant Robert Vezina challenges a restitution order for various items of musical equipment, arguing the trial court erred by concluding that certain cymbals that had been stolen but then returned in a degraded but functional condition were worthless; by awarding restitution based on the subjective value of the cymbals to the victim; and by ordering defendant to pay restitution without making a finding on his ability to pay. We affirm on the first two issues, and reverse and remand for further proceedings concerning defendant's ability to pay.

¶ 2. On September 20, 2013, defendant pleaded guilty in the Superior Court, Windsor Unit, Criminal Division, to one count of petit larceny, 13 V.S.A. § 2502, in connection with the theft of seven pieces of musical equipment in July 2012. Defendant's sentence included a restitution order.¹ After a restitution hearing, the trial court made the following findings, which are supported by substantial evidence in the record. The equipment's owner collects rare drumming equipment, much of which is no longer being produced. The owner currently has 538 pieces in his collection, including 133 Zildjian drum cymbals. The logo on a cymbal is an important component of its value. Damage to cymbals decreases their value. The trial court summarized the status of each of the seven items at issue:

• Sonor Force Boom Stand —[The owner] purchased this new stand for $133 from a German company. The company does not make this stand any more. A portion of this piece was returned to him, but pieces are missing.

• Gibraltar Rod Cymbal Attachment —[The owner] purchased this item new for $41.50. This is a stand which is a mount for a cymbal. This was returned to [the owner] but is missing “toppers, sleeves and a wing nut.”

• A Series 10? Extra Thin Splash Zildjian Cymbal —[The owner] purchased this cymbal new for $191. It is a discontinued item. This was returned to [the owner], but in a damaged state. This cymbal was cleaned by Defendant

121 A.3d 1198

with a harsh, abrasive cleaner and materials were rubbed into the grooves of the cymbal. This affects the value of the cymbal and its performance. This cymbal is presently at the Springfield Police Department.

• A Series 6? Splash Custom Cymbal —[The owner] purchased this cymbal new for $136.00. This cymbal had a rare stamp on it. This stamp is not put on cymbals any more, so it has a value as a collector['s] item. This cymbal was not returned to [the owner].

• A Series 10? EFX Cymbal —[The owner] purchased this cymbal new for $198.00. It is a rare, discontinued model which has not been made since 2002. This is missing and has not been returned to [the owner] although he believes he has seen it at a music store.

• A Custom 10? Splash Cymbal —[The owner] purchased this cymbal new for $206. It has been returned to him, but in a damaged state. The damage is [the same as described above in connection with the A Series 10? Extra Thin Splash Zildjian Cymbal].

• 19? Zildjian Custom Rock Crash —[The owner] purchased this symbol new for $427.00. It is [a] rare, discontinued cymbal. It was damaged similarly to the cymbals noted ... above. In addition, the logo has been polished off this cymbal and there are nicks, dents, and edge damage to the cymbal. Defendant agrees that he played this cymbal and wiped off the label.

¶ 3. The court further found that the items which were damaged or stolen were collector's items, for which there is no “blue book” value as there is for automobiles. They were in “impeccable” condition before the larceny, as the owner did not let others play or touch his drum equipment. Because they are no longer being produced, most of the items in the owner's collection, when they were intact, were probably more valuable than when the owner originally purchased them. The cymbals that were damaged are no longer valuable collector's items. The total amount that the owner originally paid for the equipment at issue was $1332.

¶ 4. Defendant produced evidence of various items of equipment for sale on eBay for prices that were lower than the original purchase price for the similar items at issue in the restitution hearing. The trial court concluded that a proposed replacement for the owner's damaged A Custom 10? Splash cymbal for $124.95 was the only one of the items identified by defendant that is likely comparable to one of the items at issue in the restitution hearing.

¶ 5. The trial court also found that “[t]here was no evidence presented showing that Defendant does not have the ability to pay restitution.”

¶ 6. Based on these findings, the trial court calculated the owner's material loss as his original purchase price for the items, with the exception of the A Custom 10? Splash cymbal, which the trial court valued at $124.95. The total restitution order was for $1251.

¶ 7. Defendant appealed, arguing that the trial court erred in awarding restitution as if the cymbals that were returned, and still functional, had not been returned; that the trial court improperly awarded restitution on the basis of the cymbals' subjective value to the owner rather than on the material loss suffered; and that the trial court erred in ordering defendant to pay restitution without making a finding that he has the ability to pay.

¶ 8. “The trial court has discretion in determining the amount of restitution, and only a reasonable certainty of

121 A.3d 1199

estimated loss is required.”State v. Driscoll, 2008 VT 101, ¶ 8, 184 Vt. 381, 964 A.2d 1172. “We review restitution orders for an abuse of discretion, and interpret controlling statutes de novo.” State v. Gorton, 2014 VT 1, ¶ 8, 195 Vt. 460, 90 A.3d 901.

¶ 9. Vermont's criminal-restitution statute mandates that restitution “be considered in every case in which a victim of a crime ... has suffered a material loss.” 13 V.S.A. § 7043(a)(1). “ ‘[M]aterial loss' means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.” Id. § 7043(a)(2) ; see also State v. Jarvis, 146 Vt. 636, 638–39, 509 A.2d 1005, 1006 (1986) (noting that “only liquidated amounts which are easily ascertained and measured are recoverable under the legislative [restitution] scheme,” and that damages “that are not readily ascertainable,” including pain and suffering and emotional trauma, are not recoverable).

¶ 10. Generally, diminution in fair market value is the proper measure of restitution for material losses of personal property. State v. Curtis, 140 Vt. 621, 622, 443 A.2d 454, 455 (1982) (per curiam); Driscoll, 2008 VT 101, ¶ 11, 184 Vt. 381, 964 A.2d 1172 (affirming restitution order for market value that owner would have received if two lost deer which escaped due to defendant's actions had been sold in an arm's-length transaction). However, we have affirmed a restitution order based on the replacement cost of items that were damaged or destroyed where the items were of modest cost and had no readily ascertainable market value. State v. Tetrault, 2012 VT 51, ¶ 13, 192 Vt. 616, 54 A.3d 146 (mem.) (“[Although] fair market value is the proper measure of damages for items with a readily ascertainable value, there is no ‘blue book’ for used toasters or microwaves. A victim of a home invasion should not have to visit local thrift stores or pore through the classifieds to determine the value of a used blender.”). We have recognized that because of the difficulty of valuation, some restitution awards “necessarily involve[ ] an approximation.” Driscoll, 2008 VT 101, ¶ 14, 184 Vt. 381, 964 A.2d 1172.

¶ 11. With these principles in mind, we turn to defendant's first challenge—that by awarding the full purchase price of the used-but-returned items, the trial court essentially concluded that the returned equipment had no value, even though the returned cymbals were functional. We conclude that the trial court's approach is supported by the evidence.

¶ 12. The boom stand and cymbal attachment were both only partially returned; pieces were missing from both.² The boom stand is no longer manufactured, and with various pieces missing, it does not have value as a collector's item. The total value ascribed to an intact Gibraltar Rod Cymbal Attachment is only $41.50. The trial court did not abuse its discretion in declining to ascribe significant value to the returned portions of either of these items.

¶ 13. The cymbals that were returned to the owner were functional as percussive instruments, but the trial court found that their primary value did not lie in their percussive qualities. They...