Bryce Andrew Davis v The State Of Oklahoma

F-2012-212

Filed: Dec. 7, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bryce Andrew Davis appealed his conviction for Aggravated Assault and Battery. His conviction and sentence resulted in 10 years of deferred sentences and an order to complete a special program. Davis was also ordered to pay restitution of $30,528.43 to the victim’s family. However, he argued that this amount was too high and should be reduced. The court agreed with Davis, saying that the previous court made a mistake in calculating the medical expenses. It found that the actual medical expenses paid by the victim’s family were much less than originally claimed. Therefore, the restitution amount was modified to be fairer to both sides. Judge Lewis dissented, believing the restitution ordered by the lower court was appropriate and should not be changed.

Decision

The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. This case is REMANDED to the district court, however, for MODIFICATION of the RESTITUTION ORDER consistent with this opinion herein. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an abuse of discretion by the District Court in ordering restitution that exceeds the authority granted under 22 O.S.2001, § 991(f)?
• Did the trial court properly consider the actual financial detriment suffered by the victim when determining the amount of medical expenses for restitution?
• Was the restitution for Mr. Hahne's lost income supported by sufficient proof of loss?
• Did the trial court err in granting a 25% upward adjustment for future medical expenses due to a lack of reasonable certainty in the evidence presented?
• Were the expenses incurred for copying related medical and court records appropriately addressed in the restitution order?

Findings

• the District Court abused its discretion in ordering restitution
• the restitution order for medical expenses was modified to $6,801.00
• the grant of restitution for Mr. Hahne's lost wages was stricken
• the upward adjustment for future medical expenses was stricken
• the expenses incurred for copying related medical and court records were appropriately addressed

F-2012-212

Dec. 7, 2012

Bryce Andrew Davis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

On May 24, 2011, Bryce Andrew Davis entered a plea of nolo contendere to the crime of Aggravated Assault and Battery in violation of 21 O.S.Supp.2002, § 646, in the District Court of Tulsa County, Case No. CF-2010-3176. The Honorable Kurt G. Glassco withheld a finding of guilt and passed judgment and sentencing for Davis to complete the Regimented Inmate Discipline Program (RID). On January 13, 2012, after Davis completed the RID program, a sentencing hearing was held. The court sentenced Davis to a ten year deferred sentence under the supervision of the Department of Corrections. A restitution hearing was held on February 24, 2012, after which the court ordered Davis to pay restitution in the amount of $30,528.43. From this Order of restitution, Davis appeals. He raises one proposition of error in support of his petition.

1. The Order of restitution exceeds the authority of the District Court and should be modified.

After thorough consideration of the entire record before us, including the original record, transcripts, briefs and exhibits, we find that the District Court did abuse its discretion in ordering restitution in this case, and we therefore remand this case for modification of the restitution Order in accordance with this opinion.

The facts of the underlying crime and the extent of the victim’s injuries are not disputed. In June of 2010, Bryce assaulted E.H., a minor, at a Walmart, by punching him twice in the face. He suffered injuries to his face including a crushed cheek bone and an orbital wall fracture, requiring the insertion of metal plates and screws and additional plastic surgery. A restitution hearing was held where the parents of E.H. testified to their medical expenses, lost income as a result of caring for their son, mileage incurred as a result of traveling to doctor visits and copying expenses for records relating to the assault. At the conclusion of the restitution hearing, the court ordered restitution in the amount of $30,528.43. This number included $20,383.30 for medical expenses; $3,076.90 for Mr. Hahne’s lost wages; $1,558.80 for Mrs. Hahne’s lost wages; $288.20 for Mrs. Hahne’s mileage; $221.23 for copying expenses; and $5,000.00 described as a 25% upward adjustment for future medical expenses.

Davis argues that the court exceeded its authority by failing to limit the restitution award to the amount of economic loss suffered by the Hahnes as required by 22 O.S.2001, § 991(f). Davis requests this Court modify the restitution order to reflect the actual damages incurred for out-of-pocket medical expenses; for Mrs. Hahne’s lost income; and for mileage. Davis further requests this Court strike the grant of restitution for Mr. Hahne’s lost income and for future medical expenses, because they cannot be determined with a reasonable certainty, and for expenses incurred for copying documents, because the statute does not extend to copying expenses.

22 O.S.2001, § 991(f) provides for restitution in criminal cases. The same statute also limits the scope of restitution. A victim may only be compensated up to three times the amount of the economic loss suffered as a direct result of the criminal act of the defendant. 22 O.S.2001, § 991(f)(C)(2)a. See also 22 O.S.201, § 991(f)(A)(1). Economic loss is defined as the actual financial detriment suffered by the victim consisting of medical expenses actually incurred, damage to or loss of real and personal property and any other out-of-pocket expenses, including loss of earnings, reasonably incurred as the direct result of the criminal act of the defendant. No other elements of damage shall be included as an economic loss for purposes of this section. 22 O.S.2001, § 991(f)(A)(3).

Section 991(f)’s limitation of economic loss to actual financial detriment suffered by the victim dictates that a restitution remedy must be based upon the medical costs the victim must pay after insurance, rather than the initial bill issued by the medical provider. Other sections of the statute bolster this conclusion. Section 991(f)(C)(3)e, for example, directs that trial courts shall consider any pre-existing orders imposed on the defendant, including but not limited to, orders imposed under civil and criminal proceedings. Section 991(f)(F) requires crime victim[s] to provide all documentation and evidence of compensation or reimbursement from insurance companies or agencies of this state, any other state, or the federal government received as a direct result of the crime for injury, loss of earnings or out-of-pocket loss.

The State urges this Court to interpret these provisions to mean that a court must contemplate any compensation to a victim as a direct result of the crime but need not deduct that compensation from the restitution award. This argument is without merit. Sections 991(f)(C)(3)e and 991(f)(F) direct courts to consider compensation resulting from the crime because that compensation impacts the actual financial detriment of the victim.

We conclude that the trial court abused its discretion when it assessed $20,383.30 restitution for medical expenses, the total value initially billed by the service providers, prior to being written down by the insurer’s contract with the providers, and prior to satisfaction by the insurance company. The appropriate value, the medical expenses actually paid by the Hahnes, was $2,267.00. The trial court had the authority to triple this number. See Logsdon v. State, 2010 OK CR 7, ¶ 12, 231 P.3d 1156, 163 ([m]erely totaling up payments made to Logsdon without accounting for any compensation that victims may have received from other sources (e.g., insurance, civil judgments, etc.), does not produce the accurate measure of a victim’s ‘actual financial detriment’ contemplated by 22 O.S.2001, § 991f(A)(3). Nor does it explain whether any excess amount of restitution was allowed. See 22 O.S.2001, § 991f(A)(1) and (C)(2).). We hereby modify the Order for medical expenses to reflect an award of 3 times $2,267.00, the amount of actual economic damages incurred, or $6,801.00.

Davis also seeks a modification of the amount awarded for Mrs. Hahne’s loss of income and mileage expenses, arguing that there was insufficient evidence to support her claims. To the contrary, we find the State established both by the preponderance of the evidence.

Davis argues that both Mr. Hahne’s estimated loss of income as well as the need for and cost of future medical expenses in this matter were not established with reasonable certainty and should, therefore, be stricken. Inherent in the definition of reasonable certainty is the requirement of proof of a victim’s loss. The record must reflect a basis for the trial judge’s determination of a victim’s loss or the decision is arbitrary and violative of Section 991a.

[S]uch determination should be shown by a preponderance of the evidence. This standard does not dictate a certain amount or type of evidence, or that the evidence be corroborated, but rather the focus is on whether the testimony contains inherent improbabilities or contradictions, which alone, or in connection with other circumstances in evidence, justify an inference that the amount is or is not the actual amount of a victim’s loss. Honeycutt v. State, 1992 OK CR 36, ¶ 34, 834 P.2d 993, 1000.

We find that Mr. Hahne’s estimation of lost income was not supported by sufficient proof of loss. He did not know which or how many days he took off from work. As a proxy, he used the number of days that his son had related doctor appointments, stopping short of testifying that he went to each of the appointments. Mr. Hahne failed to testify to any specific opportunity that he lost as a result of the appointments. The State has not established by a preponderance of the evidence that Mr. Hahne suffered $3,076.00 in losses, or even what loss is appropriate. The grant of restitution for Mr. Hahne’s lost wages was an abuse of discretion. This sum must be stricken from the restitution award.

Davis also challenges the court’s order for a 25% upward adjustment for future medical expenses. 22 O.S.2001, § 991f(A)(3) plainly limits criminal restitution to damages suffered or incurred. No other elements of damage shall be included as an economic loss for purposes of this section. Id. The only record evidence of a need for future treatment is found in the testimony of Mrs. Hahne, wherein she explains that she must take her son to bi-annual checkups for an undetermined time. Her co-pay for those visits is $25.00. There is no testimony or documentary evidence about the cost of those visits independent of the insurance benefit. The only other indication that there may be future medical expenses is a letter written by E.H.’s dentist, Dr. Befans, stating:
[a]s of November 14, 2011, [E.H.] is still experiencing numbness in the upper left quadrant of his mouth. An injury such as [this] one may have long term dental implications, which may or may not include root canal therapy, crowns, extractions, tooth replacements, maxillofacial surgery, etc. In cases involving trauma, it may take years for problems to manifest.

This prognosis is too indefinite to form a basis for incurred economic loss and, but for the trebling of actual, incurred damages, there simply is no statutory provision for insuring against potential damages. Where a victim is undergoing a defined course of treatment and can establish through competent testimony, with reasonable certainty, what the scope of the remainder of the treatment will be and what the cost of that treatment will be, it is reasonable to conclude that sum has been incurred, and to include that sum in the restitution order, subject to amendment. See 22 O.S.2001, § 991(f)(C)(3)c. The evidence presented here, however, is too speculative and cannot support a grant of restitution for potential future treatment under this statute. The trial court abused its discretion by granting the 25% upward adjustment. This $5,000.00 sum should be struck from the restitution award.

Finally, we find that the expenses incurred for copying related medical and court records were appropriately addressed in the restitution order. In Taylor v. State, 2002 OK CR 13, ¶ 6, 45 P.3d 103, 105-06, we recognized that [i]n defining its terms, the [Victim’s Rights] Act specifically notes that trial courts may order defendants to pay a victim’s out-of-pocket loss, including unreimbursed and nonreimbursable economic losses incurred as a consequence of participation in prosecution and proceedings related to the crime. Id. (citing 21 O.S.Supp. 1997, § 142B and §§ 142A-1(4), 142A-1(6)). Though the Hahnes had not received a bill at the time of the restitution hearing, the work was completed and the testimony of Mrs. Hahne that she was responsible for the same was sufficient to support the award.

DECISION

The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. This case is REMANDED to the district court, however, for MODIFICATION of the RESTITUTION ORDER consistent with this opinion herein. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.Supp.2002, § 646
2. 22 O.S.2001, § 991(f)
3. 22 O.S.2001, § 991(f)(C)(2)a
4. 22 O.S.201, § 991(f)(A)(1)
5. 22 O.S.2001, § 991(f)(A)(3)
6. 22 O.S.2001, § 991(f)(C)(3)e
7. 22 O.S.2001, § 991(f)(F)
8. Logsdon v. State, 2010 OK CR 7, I 12, 231 P.3d 1156, 163
9. 21 O.S.Supp.1997, § 142B
10. 21 O.S.Supp.1997, §§ 142A-1(4), 142A-1(6)
11. Honeycutt v. State, 1992 OK CR 36, 1933, 34, 834 P.2d 993, 1000
12. Marshall U. State, 2010 OK CR 8, "I 24, 232 P.3d 46, 47
13. 22 O.S.2011, § 991(f)(A)(3)
14. 22 O.S.2011, § 991f(C)(3)(c)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 646 (2002) - Aggravated Assault and Battery
• Okla. Stat. tit. 22 § 991 (2001) - Restitution in Criminal Cases
• Okla. Stat. tit. 22 § 991(f)(C)(2)a - Limitation of Restitution
• Okla. Stat. tit. 22 § 991(f)(A)(1) - Definition of Economic Loss
• Okla. Stat. tit. 22 § 991(f)(A)(3) - Definition of Economic Loss
• Okla. Stat. tit. 22 § 991(f)(C)(3)e - Consideration of Prior Orders
• Okla. Stat. tit. 22 § 991(f)(F) - Documentation of Compensation
• Okla. Stat. tit. 21 § 142B (1997) - Out-of-Pocket Loss
• Okla. Stat. tit. 21 § 142A-1(4) - Definition of Economic Loss
• Okla. Stat. tit. 21 § 142A-1(6) - Definition of Economic Loss
• Okla. Stat. tit. 22 § 991(f)(C)(3)(c) - Authority to Amend Restitution Orders

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Logsdon v. State, 2010 OK CR 7, I 12, 231 P.3d 1156, 163
• Honeycutt v. State, 1992 OK CR 36, 1933, 34, 834 P.2d 993, 1000
• Taylor v. State, 2002 OK CR 13, I 6, 45 P.3d 103, 105-06
• Marshall v. State, 2010 OK CR 8, "I 24, 232 P.3d 46, 47