EBONY LATREECE DUBOISE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001860-MR
EBONY LATREECE DUBOISE
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 03-CR-00400
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; PAISLEY, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
Ebony Latreece Duboise has appealed from the
McCracken Circuit Court’s Order as to Restitution entered August
18, 2004, in which the amount of restitution was determined to
be $39,504.
Because we have determined that the Commonwealth
did not produce sufficient evidence to establish that amount, we
must reverse the order and remand.
1
Senior Judge Lewis G. Paisley, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
On November 7, 2003, the McCracken County Grand Jury
indicted Duboise on one count of Complicity to Theft by
Deception over $300, a Class D Felony. 2
She was accused of
taking property valued over $300 from the Paducah area K-Mart
store while she was employed there from March 1 through
September 3, 2003.
Duboise entered a guilty plea as charged in
the indictment, which the circuit court accepted.
The Final
Judgment/Sentence of Imprisonment was entered on May 17, 2004,
in which the circuit court followed the Commonwealth’s
recommendation and sentenced Duboise to 2 ½ years in prison and
ordered her to pay restitution in an amount to be determined
upon her release from prison.
The circuit court held a hearing on restitution in
August.
The Commonwealth relied upon the testimony of K-Mart
store manager David Bender, who stated that his review of the
business records, including the in-store videotapes and
electronic journal, confirmed a theft amount of $38,954.
When
added to Duboise’s admitted theft of food in the amount of $450,
the total amount of loss was $39,504.
Bender based this amount
on a three-year review of loss reports, and stated that although
he could not pinpoint the exact amount of merchandise Duboise
stole, the figure he came up with represented the spike in the
various departments’ losses from previous years.
2
KRS 514.040.
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Bender
produced register tapes and a videotape for one day in
September, which revealed three separate incidents of theft
totaling $903.30. 3
Bender also testified that when she was
confronted, Duboise confessed to stealing $450 in food and a
total of $40,000 in other items.
Detective Rob Estes, called by
Duboise, testified that she recanted her confession that she had
stolen $40,000 in merchandise and stated that the amount was
closer to $25,000.
Although they are not in the record, the
Commonwealth produced and had admitted two signed statements
from Duboise, in which she first admitted that she had stolen
$40,000, and then that she had stolen $25,000 in merchandise.
Duboise testified that she had stolen approximately
$2,000 of items, including clothes, baby items, kitchen items
and candles, while she was employed at K-Mart.
She indicated
that the investigators forced her to raise the amount and that
she was told she would not be prosecuted if she cooperated.
Duboise also provided the names of the other people involved
with the thefts to the investigators.
Based upon this testimony, the circuit court
determined that Duboise owed $39,504 in restitution, which would
3
Neither the documents nor the videotape is contained in the certified
record.
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be paid on a monthly basis upon her release from incarceration
in an amount to be determined later.
This appeal followed. 4
On appeal, Duboise argues that she is not precluded
from seeking review of this order, even though she entered an
unconditional guilty plea.
She also argues that the
Commonwealth did not meet its burden of proof in establishing
the amount of restitution owed, that the restitution order
violates her due process rights, that K-Mart is not a
compensable victim under the statute, and that Bender was not
qualified to testify as an expert.
After stating that Duboise
did not preserve any of her arguments for review, the
Commonwealth simply argues that the circuit court did not abuse
its discretion in ordering restitution.
We disagree.
KRS 532.032(1), the criminal restitution statute,
provides:
Restitution to a named victim, if there is a
named victim, shall be ordered in a manner
consistent, insofar as possible, with the
provisions of this section and KRS 439.563,
532.033, 533.020, and 533.030 in addition to
any other part of the penalty for any
offense under this chapter. The provisions
of this section shall not be subject to
suspension or nonimposition.
KRS 532.350(1)(a) defines restitution as “any form of
compensation paid by a convicted person to a victim for
4
We note that the circuit court granted Duboise shock probation on September
13, 2004, and that she appears to have been making monthly restitution
payments.
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counseling, medical expenses, lost wages due to injury, or
property damage and other expenses suffered by a victim because
of a criminal act.”
The restitution statute applies regardless
of whether a person is sentenced to incarceration or is
conditionally released. 5
In Fields v. Commonwealth, 6 this Court addressed the
standard of proof necessary to establish restitution, and
envisioned that restitution be considered at the sentencing
hearing, where due process standards are less:
The due-process clauses of the federal
constitution require that sentences not be
imposed on the basis of material
misinformation, . . . and that facts relied
on by the sentencing court “have some
minimal indicium of reliability beyond mere
allegation.”
The Fields court determined that the trial court must justify a
restitution award:
“[T]he record must establish an adequate
factual predicate for a restitution order.” 7
Looking to our
sister states, the Arizona courts have held that it is within
the court’s discretion to award a specific amount of restitution
according to the facts, and that the amount of restitution
claimed must bear a reasonable relationship to the loss incurred
by the victim. 8
In Florida, “the amount of restitution need be
5
See Commonwealth v. O’Bryan, 97 S.W.3d 454 (Ky.App. 2003).
123 S.W.3d 914, 917 (Ky.App. 2003)(citations in footnotes omitted.)
7
Id. at 918.
8
State v. Fancher, 818 P.2d 251 (Ariz. 1991), citing State v. Scroggins, 810
P.2d 631 (Ariz. 1991).
6
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established only by the greater weight of the evidence[,]” as
opposed to beyond a reasonable doubt. 9
We also note that under
Kentucky’s sentencing statutes, the determination as to whether
a court should grant probation or a conditional discharge is
within the trial court’s discretion. 10
Because restitution is
left to the sentencing judge to decide, the amount of
restitution, if it is awarded at all, is also within the trial
court’s sound discretion.
It is clear in the present case that the trial court
abused its discretion, not in awarding restitution, but in
awarding the amount of $39,504.
There is no actual factual
predicate in the record to establish this amount, other than
Bender’s for the most part unsupported testimony.
The
Commonwealth did not present any documentary evidence to
establish losses even close to this figure.
Bender only
produced one day’s worth of documentation, establishing a loss
of $903.30.
Bender’s testimony, alone, that Duboise stole
$38,954 in items and an additional $450 in food is not
sufficient to establish this loss amount, especially in light of
Bender’s admission that he was unable to document it entirely.
We note that the Commonwealth also relied upon Duboise’s two
written statements, in which she first admitted to stealing
$40,000 in merchandise, and then amended the figure to $25,000.
9
10
J.O.S. v. State, 668 S.2d 1082 (Fla. 1996).
Turner v. Commonwealth, 914 S.W.2d 343, 347-48 (Ky. 1996).
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At the hearing, although admitting that she had no idea how much
she had stolen, Duboise testified that she thought the amount
was in the $2,000 range, that she was forced into the admission
that she had stolen $40,000, and that she never admitted that
the amount was $25,000.
While we of course do not condone
Duboise’s conduct, we believe she is entitled to fair treatment
in regard to restitution and that the Commonwealth must produce
proof to establish the amount to be awarded.
The facts of this case also lead us to question
whether the amount is an inflated one.
It is undisputed that
Duboise was one of eighteen people who participated in the
scheme.
Duboise was one of three K-Mart employees who would
either not scan items or greatly discount or refund items that
passed through their registers.
The majority of people involved
in the scheme were K-Mart customers.
Bender testified that the
other employees admitted to what they took, which equaled $500
to $1,000 in merchandise.
The record does not reflect that
amounts were repaid, or that any of the stolen merchandise was
returned by any of the customers.
The trial court should have
at least considered this information before deciding upon the
restitution amount.
To conclude, there is simply no evidence in the record
to establish the full amount of restitution awarded.
Had
Duboise not admitted to stealing $2,000 at the hearing, the
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Commonwealth would be limited to a restitution award of $903.30,
representing the amount actually established in the record.
The
trial court clearly abused its discretion in awarding $39,504 in
restitution absent the necessary proof in the record to support
that amount.
Having reached this conclusion, we need not address
the other issues Duboise raised in her brief.
For the foregoing reasons, the restitution order is
reversed, and this matter is remanded for the entry of a
restitution award not to exceed $2,000.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Patrick F. Graney
Assistant Public Advocate
Frankfort, KY
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, KY
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