State v. VanDusen

State v. Vandusen  (96-120); 166 Vt. 240; 691 A.2d 1053

[Filed 31-Jan-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-120


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            Addison District Court

Scott C. VanDusen                                 November Term, 1996


Matthew I. Katz, J.

       John T. Quinn, Addison County State's Attorney, Middlebury, and
  Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

       Peter F. Langrock and Lisa B. Shelkrot of Langrock Sperry & Wool,
  Middlebury, for defendant-appellant


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ.


       DOOLEY, J.   On May 31, 1995, Frederick Bennett was informed that
  several hundred feet of stainless steel pipe were missing from his barn in
  Shoreham.  The steel pipe was traced to defendant Scott VanDusen, an
  employee at a farm in Addison.  In August 1995, defendant was charged in a
  one-count information with felony possession of stolen property valued at
  approximately $4,500, in violation of 13 V.S.A. § 2561.  Upon defendant's
  motion, the court reduced the charge to a misdemeanor, having found that
  the "only evidence is poss[ession] of 18" pieces; hence [of] little value." 
  Defendant waived the right to trial by jury, and after a court trial, was
  found guilty of misdemeanor possession of stolen property.  Defendant was
  sentenced to serve three months in jail, to pay a fine of $1,000, and to
  pay restitution of $4,000.  The issues on appeal are (1) whether the
  evidence was sufficient to support defendant's conviction of possession of
  stolen property valued at less than $500, (2) whether restitution is
  limited to the amount in the charge on which defendant was found guilty,
  and (3) whether the evidence is

 

  sufficient to support the restitution order.  We affirm.

       In December 1994, Bennett installed in his barn 500-700 feet of
  two-inch, stainless steel pipe, some of it new, and some of it used.  The
  pipe was stolen from Bennett's barn between May 26 and May 31, 1995. 
  According to the district court's written findings of fact, the pipe was
  "readily identifiable by the blue markings" of the person who installed it. 
  Bennett conducted his own investigation of the theft and located the pipe,
  cut into short pieces of scrap, at Rutland Waste and Metal Company.  A
  salesperson at Rutland Waste and Metal testified that she bought the scrap
  metal in July 1995 for $76 and was able to identify defendant as the
  seller. The court also found that, during the month of June, defendant was
  in possession of a chop saw that he borrowed from his employer without his
  employer's permission.  The court concluded that defendant had been in
  possession of the steel pipe when it was in long pieces, that he had
  knowledge the pipe was stolen, and that he had used his employer's chop saw
  to cut the pipe into small pieces.

       Defendant's first claim of error is that there was insufficient
  evidence to support his conviction.  We will affirm the conviction if the
  "evidence, when viewed in the light most favorable to the State, fairly and
  reasonably supports the finding of guilt beyond a reasonable doubt."  State
  v. Derouchie, 140 Vt. 437, 441, 440 A.2d 146, 147 (1981).  The test is the
  same whether the evidence is direct or circumstantial.  State v. Paradis,
  146 Vt. 345, 347, 503 A.2d 132, 133 (1985).

       Defendant admits to selling sawed-off pipe ends to Rutland Waste and
  Metal, but he disputes knowing that the pipe was stolen.  Defendant claims
  that he received some of the scrap from his employer and found the rest
  abandoned near a bridge; he hypothesizes that someone else stole the pipe,
  cut it into pieces, and discarded the marked ends.  The court rejected
  defendant's explanation that he was given the pipe by his employer, or that
  he found the pipe in short pieces along the side of the road.  It
  determined that defendant "could not give a clear answer to the question of
  where he had stored the pipe" and "was surreptitious in borrowing the

 

  saw from his employer."  Defendant "answered questions [about the steel
  pipe] in terms of pounds," whereas a "person having an actual use for pipe
  would be expected to think of it in terms of length."  In the court's
  opinion, defendant was not a credible witness and his version of events was
  "not believed."

       Although defendant is not required to explain his possession of stolen
  goods, an explanation "shown to be contrived and false" can be taken as
  evidence of guilty knowledge. State v. Beyor, 129 Vt. 472, 475, 282 A.2d 819, 821 (1971); see also State v. Ashey, 86 Vt. 479, 481, 86 A. 308, 309
  (1913) (jury can reject false explanation, leaving fact of possession
  unexplained).  The court found that defendant offered conflicting
  statements about where he obtained the stolen pipe and how long the pipe
  was in his possession.  Having found that defendant's statements were
  deceitful, the court could properly infer from other evidence that
  defendant knew or believed the pipe was stolen.  Defendant answered
  questions about the pipe in terms of pounds instead of length; defendant
  surreptitiously borrowed a chop saw during the same period that the pipe
  was in his possession; and defendant appeared nervous at the time he sold
  the pipe.  We conclude that the State's evidence was sufficient to lead a
  reasonable trier of fact to conclude beyond a reasonable doubt that
  defendant knew or believed the property in question was stolen.  See
  Paradis, 146 Vt. at 347, 503 A.2d  at 134.

       Defendant next argues that the court lacked the authority to order
  restitution of $4,000 when he was convicted only of misdemeanor possession
  of stolen property, which involves property not exceeding $500 in value. 
  See 13 V.S.A. §§ 2561(b) (person who possesses stolen property, knowing it
  to be stolen, shall be punished same as for stealing property), 2502
  (larceny of property not exceeding $500 in value is misdemeanor). 
  Restitution must be considered in every case "in which a victim of crime
  has suffered a material loss or has incurred medical expenses."  13 V.S.A.
  § 7043(a).  Restitution may include "cash . . . to the victim . . . to
  compensate for damages to the victim's property . . . ."  Id. § 7043(b)(2). 
  To support a restitution order, the State must establish both the amount of
  the victim's loss and causation

 

  between the defendant's acts and the victim's loss.  We have upheld the
  power of the court to award property damage restitution against a possessor
  of stolen property.  See State v. May, 7 Vt. L.W. 343, 344 (1996).

       A restitution order may not include amounts resulting from conduct on
  which defendant was acquitted, see State v. Knapp, 147 Vt. 56, 60, 509 A.2d 1010, 1012 (1986), or conduct that was not covered by defendant's
  conviction.  See State v. Stimpson, 151 Vt. 645, 646, 563 A.2d 1001,
  1001-02 (1989) (mem.).  In essence, defendant argues that these holdings
  should control because defendant was not convicted of possessing more than
  $500 worth of stolen property.

       Although the restitution award exceeds the value limit for petit
  larceny, it relates directly to the conduct for which defendant was
  convicted.  This fact distinguishes the current case from Knapp and
  Stimpson.  Although there are decisions to the contrary, see Peralta v.
  State, 596 So. 2d 1220, 1221 (Fla. Dist. Ct. App. 1992); State v. Francois,
  548 So. 2d 1284, 1287 (La. Ct. App. 1989), the better reasoned decisions
  from other states authorize full restitution in these circumstances, at
  least where there is no contrary plea agreement.  See State v. Fancher, 818 P.2d 251, 253 (Ariz. Ct. App. 1991); Nix v. State, 925 S.W.2d 802, 803-04
  (Ark. Ct. App. 1996); State v. Johnson, 711 P.2d 1295, 1298 (Haw. 1985);
  State v. Terpstra, 546 N.W.2d 280, 284 (Minn. 1996); People v. Meade, 600 N.Y.S.2d 353, 354 (N.Y. App. Div. 1993); State v. Selland, 772 P.2d 534,
  536 (Wash. Ct. App. 1989).

       We hold that the court could award restitution beyond the amount
  contained in the misdemeanor charge associated with petit larceny of which
  defendant was convicted.  Two considerations in particular induce us to
  follow these decisions.  First, we find no suggestion in the statute that
  the Legislature intended to limit damages based on the dollar amount in the
  charge against a defendant.  The statute is based on the principle of
  compensation to the victim, rather than punishment of the defendant.  See
  13 V.S.A. § 7043(b)(2) (restitution may include cash or installment
  payments "to compensate for damages to the victim's property or person");
  Fancher, 818 P.2d  at 253; Nix, 925 S.W.2d  at 804; Terpstra, 546 N.W.2d  at
  283.

 

       Second, at sentencing, matters need be proven only by a preponderance
  of the evidence, see State v. Grenier, 158 Vt. 153, 159, 605 A.2d 853, 857
  (1992); V.R.Cr.P. 32(c)(4), and proceedings are less formal than in the
  criminal trial.  Thus, it is not inconsistent that the State could not
  prove the higher value in the criminal trial, but could during sentencing. 
  See Terpstra, 546 N.W.2d  at 282; Meade, 600 N.Y.S.2d  at 354.

       Defendant's final argument is that restitution of $4,000 is not
  supported by the evidence. The issue is whether the evidence established by
  a preponderance damages of $4,000 caused by defendant.  Bennett testified
  that in 1994 he had both new and old pipe installed in his barn and that
  the total cost of the installation was $5,000.  In addition, defendant
  introduced an exhibit indicating that the replacement cost of the stolen
  steel pipe, not including labor, was $3,264.08. In convicting defendant,
  the court inferred that defendant had knowledge the pipe was stolen and
  that, while the pipe was in defendant's possession, "defendant cut the pipe
  from Bennett's farm into short lengths, using [his employer's] saw."  An
  employee from Rutland Scrap and Metal testified that defendant sold her 200
  pounds of steel pipe, which consisted of new and old, marked and unmarked
  pieces.  Given the totality of the evidence, the court could reasonably
  find by a preponderance of the evidence that defendant was responsible for
  losses to Mr. Bennett amounting to $4,000.

       The district court had discretion in determining the amount of
  restitution, and only a reasonable certainty of estimated loss is required. 
  See State v. May, 7 Vt. L.W. at 344.  We conclude that the restitution
  order was supported by the evidence and was within the court's discretion.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice