State of Utah v. Wilber

State of Utah,
Plaintiff and Appellee,

v.

Jolene M. Wilber,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981271-CA

F I L E D
(February 19, 1999) 1999 UT App 048

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Third District, Salt Lake Department
The Honorable Anne M. Stirba

Attorneys:
Catherine L. Begic and Rebecca C. Hyde, Salt Lake City, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

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Before Judges Wilkins, Davis, and Jackson.

PER CURIAM:

Appellant, who pleaded guilty to one count of communications fraud, a third degree felony, for her actions in purchasing a used vehicle from Tim Dahle, challenges an order of the district court directing her to pay $8,100 in restitution to Tim Dahle. We affirm.

This court will not vacate an order of restitution unless the district court abused its discretion or exceeded its authority. State v. Westerman, 945 P.2d 695, 696 (Utah Ct. App. 1997); State v. McBride, 940 P.2d 539, 541 (Utah Ct. App. 1997). Trial courts are authorized, and, in fact, mandated to order a defendant to make restitution under certain circumstances. The applicable statute provides that a court shall order a defendant convicted of a crime that has resulted in pecuniary damages to make restitution to victims of the crime. Utah Code Ann. § 76-3-201(4)(a)(i) (Supp. 1997). "Restitution" is defined as full, partial or nominal payment for pecuniary damages to a victim. Utah Code Ann. § 76-3-201(1)(d) (Supp. 1997).

Appellant asserts that the trial court abused its discretion in ordering her to pay restitution to Tim Dahle because Tim Dahle's losses were a result of the unforeseeable intervening actions of appellant's other victim, not of appellant. Appellant's argument is gratuitous. A careful review of the transcript, record and restitution hearing exhibits reveals that the district court, in fact, decreased the restitution order by the exact amount demonstrated to be attributable to the conduct of the other victim. Specifically, Tim Dahle demonstrated that it suffered $8,958 in damages. Appellant demonstrated that $850 of the damage was attributable to depreciation due to excess mileage caused by the other victim ($1450, the value of the mileage discount for a car with 80,000 miles on it, minus $600, the value of the mileage discount for a car with 74,000 miles on it). In ordering restitution in the amount of $8,100, the district court decreased Tim Dahle's recovery by $850.

Appellant also asserts, very generally, that the "court similarly abused its discretion in imposing $8,100 in restitution where the evidence regarding the actual monetary value of the damages, as well as information that Tim Dahle was back in possession of the vehicle and that [appellant] had already deposited $13,500 with the court does not support the dollar amount of the restitution order." In making this argument, appellant trivializes the consequences of her conduct. The $13,500 she received when she sold the vehicle fraudulently obtained from Tim Dahle was not the only pecuniary loss caused by her crime. There was an additional $8,100 of loss experienced by Tim Dahle to finally recover the vehicle and restore it to selling condition, after having received absolutely nothing of value from appellant when appellant originally defrauded them of the vehicle. Clearly, appellant put into motion a series of events that resulted in a substantial loss to both victims.

The district court did not abuse its discretion in ordering appellant to pay $8,100 in restitution to Tim Dahle. Accordingly, we affirm the district court's order.
 

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Michael J. Wilkins,
Presiding Judge
 

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James Z. Davis, Judge
 

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Norman H. Jackson, Judge