State v. Forant

State v. Forant  (97-386); 168 Vt. 217; 719 A.2d 399

[Filed 21-Aug-1998]


       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. 97-386


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.						 District Court of Vermont
                                                 Unit No. 3, Lamoille Circuit
	
Brian Forant	                                 May Term, 1998



Alan W. Cook, J.

       William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant
  Attorney General,  Montpelier, for Plaintiff-Appellee.

       Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
  Montpelier, for  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       JOHNSON, J.  Defendant appeals his conviction and sentence for the
  domestic assault of  his wife.  Defendant claims that (1) the trial court
  committed plain error when, while instructing the  jury, it made a
  contradictory statement that the State's burden of disproving self-defense
  was by a  preponderance of the evidence; and (2) the security measures
  taken by a victim of a crime and  expenses incurred by a victim in
  preparation of and participation in a trial are not authorized by  statute
  to be compensable as restitution.  We disagree as to the first issue and
  affirm defendant's  conviction.  We agree, however, that the restitution
  order was unauthorized.

       The evidence showed that at the time of the offense, defendant and
  Corinne Forant were  married with four children.  Upon returning home from
  work on the evening in question, defendant  and his wife had an argument
  over household issues.  While defendant was in a separate room, a  fight
  ensued between two of the children in Corinne's presence in the kitchen. 
  Corinne attempted  to discipline one of the children, but the child
  responded by biting her leg.  

  

  Corinne then attempted  to spank the child, but instead struck the child's
  arm.  Defendant entered the room and witnessed  his wife hitting the child. 
  Defendant then assaulted his wife by throwing her into a table, hitting 
  her head on the floor, and striking her chin.  Corinne Forant made numerous
  attempts to call the  police, which defendant thwarted.  At trial,
  defendant asserted a claim of self-defense and defense  of his child.  The
  court instructed the jury regarding self-defense in relevant part as
  follows:

    Since the evidence in this case does raise the issue of self-defense,
    the burden is on the State  to prove beyond a reasonable doubt that the
    acts of the defendant were not done in self-defense.  If the State fails
    to prove to your satisfaction beyond a reasonable doubt that the  defendant
    did not act in self-defense, then the State has not met its burden of
    proving that  the use of force was unlawful and you must find the defendant
    not guilty.

    . . . Thus, in order to overcome the defendant's claim of
    self-defense, the State must prove  each of the following essential
    elements by a preponderance of the evidence: First, that the  defendant did
    not reasonably believe that he was in imminent danger of immediate bodily 
    harm; second, that the defendant did not reasonably believe that the use of
    force was  necessary to avoid danger and; third, that the defendant did not
    use only that force which  was reasonably necessary to repel his attacker.

    . . . If you find that the State has established each of these
    elements beyond a reasonable  doubt, then you may find that the claim of
    self-defense has not been successfully  established."

(Emphasis added).

       The defense did not object to the jury instructions, and the jury
  returned a verdict of guilty.  Defendant was sentenced to not less than
  eleven and not more than twelve months, all suspended  except for sixty
  days on a work crew.

       At the sentencing hearing, the victim requested restitution for the
  following: (1) security  measures taken after the assault (the cost of
  changing her telephone number and for changing the  locks on her home,
  $115.00), and (2) expenses incurred due to meetings with the prosecutor's 
  office in preparation for trial and for attending court proceedings (lost
  wages due to missed work,  $499.20, child care costs, $312.00, and mileage
  expenses, $67.50).  Defendant argued that the  items requested were not
  proper subjects of restitution under the restitution statute.  The trial
  court  ordered restitution for all of what was requested, totalling
  $993.70.  

  

  Defendant now appeals,  challenging the conviction and the restitution
  order.

                                     I.


       Defendant first argues that the trial court committed error when it
  instructed the jury that the  State could disprove self-defense by a
  preponderance of the evidence.  We disagree.  When the  instructions are
  viewed in their entirety, defendant has failed to show that he was
  prejudiced by the  reference.

       Since the defendant failed to object to the jury instructions at
  trial, reversal is appropriate  only if the court below committed plain
  error.  See V.R.Cr.P. 30, 52(b); State v. Pelican, 160 Vt.  536, 538, 632 A.2d 24, 26 (1993).  Plain errors are those that affect a defendant's
  substantial rights  that were not brought to the trial court's attention. 
  See V.R.Cr.P. 52(b).  Plain error exists only in  extraordinary situations
  where it is "obvious and strikes at the heart of defendant's constitutional 
  rights or results in a miscarriage of justice."  State v. Streich, 163 Vt.
  331, 353, 658 A.2d 38, 53  (1995).  When determining plain error in the
  content of jury instructions, we review the instructions  in their
  entirety.  See Pelican, 160 Vt. at 539, 632 A.2d  at 26.  If the charge as a
  whole is not  misleading, there is no plain error.  See Streich, 163 Vt. at
  352-53, 658 A.2d  at 53; Pelican, 160  Vt. at 539, 632 A.2d  at 26.  

       Defendant is correct that the proper jury instruction is that the
  State must disprove self-defense 

  

  beyond a reasonable doubt.  See State v. Bartlett, 136 Vt. 142, 144, 385 A.2d 1109, 1110  (1978).  The question is whether a single reference to a
  preponderance standard in the middle of the  charge misled the jury.  The
  court made three references to the State's burden of disproving self-
  defense as beyond a reasonable doubt, and one statement that the State
  could disprove self-defense  by a preponderance of the evidence.  This
  error went unnoticed by all, and in all probability was  not noticed by the
  jury in light of the entire instruction.  The jury did not ask for
  clarification on  this issue.  The error was not obvious and is unlikely to
  have confused the jury.  Cf. Streich, 163  Vt. at 353, 658 A.2d  at 53 (two
  isolated phrases in lengthy jury charge not plain error where court 
  repeatedly instructed jury that State's burden of proof was beyond a
  reasonable doubt and charge as  whole was not misleading).  Defendant has
  failed to show that he was prejudiced by this  instruction.  

                                     II.


       We turn now to whether the trial court erred in ordering defendant to
  pay the victim  restitution for costs she incurred in meeting with the
  prosecutor and attending court proceedings and  for security measures she
  took at home.  Defendant argues first that the expenses his wife incurred 
  in preparation for and participation in trial are costs of prosecution that
  are not taxable against him  under 13 V.S.A. § 7172(b), and therefore may
  not be ordered as restitution.  

       Section 7172(b) states that the "cost of prosecution" shall not be
  taxed against a respondent  in any criminal case."  Similarly, § 7253
  requires the cost of prosecution for a criminal case to be  paid by the
  state.  Although neither statute defines "cost of prosecution,"  we have
  previously held  that a defendant in a criminal case cannot be ordered to
  make restitution to the State for costs of a  search warrant, subpoenas,
  continuance, term fees, travel fees, and attorney's fees.  See Fay v. 
  Barber, 72 Vt. 55, 57-58, 47 A. 180, 182 (1899); In re Pierce, 103 Vt. 438,
  439, 156 A. 137, 138  (1931).  If subpoenas and travel fees for witnesses
  are non-taxable costs of prosecution, it is logical  to conclude that the
  expenses of a prosecution witness in attending and preparing for trial,
  even if  voluntarily incurred, should be treated the same.  The purpose of
  the restitution statute is not to  shift the costs of prosecution to the
  defendant by providing a detour around the statutes placing that  burden on
  the State.  Therefore, despite our recognition that Corinne Forant's travel
  and child-care  expenses are real costs to her, they are nonetheless so
  directly related to the cost of prosecution that  they are not taxable to
  defendant under the present statutory scheme.  

       The State directs our attention to our recent decision in State v.
  Lewis, 9 Vt. L.W. 98  (1998).  In Lewis, we held that the cost of
  extraditing a defendant after he escaped from custody  and fled the
  jurisdiction were not costs of prosecution, and were properly chargeable to
  him as  restitution.  Because the defendant in Lewis was a fugitive from
  justice, the costs incurred to 

  

  extradite and return him to the custody of the Commissioner were more
  closely related to restoring  custodial authority on prior charges than to
  his subsequent prosecution for escape.  The decision  was limited to the
  specific facts of the case, see id. at 99, and does not support the
  reimbursement  of costs incident to a witness's preparation for or
  attendance at trial.

       Whether the costs incurred by Corinne Forant to change the locks and
  telephone number at  her home are subject to restitution presents a
  different question.  Because these are not costs of  prosecution, but are
  expenditures by a victim of a crime, we analyze them under the restitution 
  statute.  Defendant argues that the restitution statute is narrowly drawn
  and permits only direct  rather than consequential losses.  He contends the
  expenses incurred by his wife were for the  purpose of improving her
  security, and were not to repair property damage inflicted by him.  
  Therefore, he concludes that the expenditures were not directly related to
  the crime and are not  compensable.   

	Section 7043 provides:

    (a)  Restitution shall be considered in every case in which a victim
    of a crime has  suffered a material loss or has incurred medical expenses.

    (b)  When ordered, restitution may include;
	    (1)	return of property wrongfully taken from the victim; or
	    (2)	cash or installment payments to the victim or to the victim's 
            compensation fund . . . to compensate for damages to the victim's 
            property or person . . . .
	
  13 V.S.A. § 7043 (emphasis added).

       The statute is narrowly drawn, and damages to the victim's property or
  person are not  defined or specified.  As a result, our prior jurisprudence
  interpreting the statute has attempted to  draw lines between categories of
  damage based on whether the sums requested were liquidated  amounts that
  were readily ascertainable.  Therefore, we have held that such damages as
  "hospital  bills, property value, and lost employment income," and easily
  measurable lost profits resulting  from stolen goods are compensable. 
  State v. Jarvis, 146 Vt. 636, 638-39, 509 A.2d 1005, 1006  (1986); accord
  State v. May, 166 Vt. 41, 43-44, 689 A.2d 1075, 1077 (1996).  Damages that 

  

  are not readily ascertainable, such as pain and suffering, emotional
  trauma, loss of earning capacity,  and wrongful death awards are not proper
  subjects of restitution under § 7043, because "a  restitution order in a
  criminal case is not the same as, and is no substitute for, an award of
  civil  damages."  Jarvis, 146 Vt. at 640, 509 A.2d  at 1007; cf. In re
  Fadden, 148 Vt. 116, 122, 530 A.2d 560, 564 (1987) (restitution for
  emotional damage upheld on ground that it was product of  voluntary plea
  bargain).

       Here, because the victim spent money to change the locks and obtain a
  new telephone  number, there is no dispute as to the amount of damages.  In
  a very limited sense, the amounts are  liquidated and ascertainable. 
  Indeed, if the victim had hired a security guard to protect her, the 
  amount of the guard's wages would be liquidated and ascertainable.  The
  more pertinent question  for this case is whether the statute permits
  recovery of damages that were not directly caused by  defendant's crime. 
  In other words, if defendant did not directly damage the locks or use the 
  telephone number to harass the victim, does the statute permit restitution?

       We agree with defendant that to support an award of restitution, the
  State must demonstrate  both the amount of the victim's loss and causation
  between the defendant's criminal act and the  victim's loss.  See State v.
  VanDusen, 166 Vt. 240, 244, 691 A.2d 1053, 1055 (1997).  An order  of
  restitution must relate directly to the damage caused by the defendant's
  criminal act for which he  was convicted.  If there is no direct link
  between the crime and the restitution, the claimed damage  may not be
  awarded under § 7043.  See State v. Knapp, 147 Vt. 56, 60, 509 A.2d 1010,
  1012  (1986); State v. Barnett, 110 Vt. 221, 231-232, 3 A.2d 521, 525
  (1938).  

       Our requirement that the injury be directly linked to the crime is
  supported by other statutes  relating to victim's compensation.  See Lewis,
  9 Vt. L.W. at 99-100.  The statute creating and  governing the Victim's
  Compensation Board, defines "victim" as "a person who sustains injury or 
  death as a direct result of the commission or the attempted commission of a
  crime."  13 V.S.A. § 5351(7)(A) (emphasis added).  Victims are eligible for 
  compensation for 

  

  pecuniary losses sustained  as a result of the crime.  See id. § 5353(g). 
  "Pecuniary loss" is defined as the amount of medical  or medically-related
  expenses, lost wages, and any other expenses that the Victim's Compensation 
  Board considers were a direct result of the crime.  See id. § 5351(5). 
  Also, in § 5301(4),  governing the victim's assistance program, another
  reference is made to the injury having to be a  direct result of the crime. 
  Here, "victim" is defined as "a person who sustains physical, emotional  or
  financial injury or death as a direct result of the commission . . . of a
  crime."  Id. § 5301(4)  (emphasis added).

       The expenses ordered as restitution in this case cannot be viewed as
  the direct result of  defendant's crime of domestic assault.  They were
  indirect costs, resulting from Corinne Forant's  fear of her husband's
  access to the house and concern that he would harass her using the
  telephone.  These concerns, although real, were related to fear of future
  crimes, not the crime for which  defendant was convicted and sentenced. 
  Even if one views the victim's fear as related to the crime  committed
  against her, expenditures made by her to restore her sense of security
  relate more to  emotional distress damages.  Such damages are not
  recoverable as restitution under our prior  holding in Jarvis, 146 Vt. at
  638, 509 A.2d at ___, because they are generally not liquidated and 
  ascertainable.  The fact that Corinne Forant reduced her damages to an
  amount certain by making  specified expenditures does not make what are
  essentially emotional distress damages liquidated and  ascertainable under
  § 7043.  See id. at 639, 509 A.2d  at 1006-07 (since civil liability is not
  a  prerequisite to restitution and victim retains right to bring civil
  action, restitution generally should  be more limited in scope than civil
  damages).  Therefore, they are not compensable under § 7043.  

       The State urges a different result based on cases from other
  jurisdictions, including Arizona  and Wisconsin, in which similar costs
  have been allowed, arguing that the courts possess broad  discretion in
  awarding restitution.  Indeed, we have previously recognized Arizona's
  restitution  statute as most similar.  See May, 166 Vt. at 47, 689 A.2d  at
  1079 (Dooley, J., concurring).   Restitution is wholly statutory, however,
  and the outcomes in cases 

  

  of other jurisdictions are  dependent on different statutory language. 
  More importantly, these statutes differ from Vermont's  restitution statute
  in ways that are critical to this case.

       First, the definitions of who may recover losses and how those losses
  are defined are  broader under Arizona law.  Arizona's statute allows for
  restitution to "any person" who suffered a  loss as a result of a crime,
  while Vermont's restitution law specifically refers to a "victim."  
  Compare Ariz. Rev. Stat. Ann. § 13-804 (West Supp. 1997), with 13 V.S.A. §
  7043; Cf. State v.  Webb, 151 Vt. 200, 202, 559 A.2d 658, 660 (1989)
  (insurance company that actually suffered loss  from defendant's crime
  could not recover as "victim").  Second, Arizona's statute states that an 
  "economic loss" is recoverable as restitution, while Vermont's refers to a
  "material loss."  Compare  Ariz. Rev. Stat. Ann. § 13-603(C), with 13
  V.S.A. § 7043.  The broader definitions are reflected  in the case law
  interpreting the statutes and has resulted in a more expansive view of the
  meaning of  direct loss.

       The general rule in Arizona is that the loss must directly flow from
  or be a direct result of  the defendant's offense to be an "economic loss"
  compensable by restitution.  The statute mandates  a "but for" analysis,
  and Arizona courts utilize a foreseeability or natural consequence analysis
  to  determine the question.  See Ariz. Rev. Stat. Ann. § 13-105(14); State
  v. Morris, 839 P.2d 434,  437-38 (Ariz. Ct. App. 1992); State v. Wideman,
  798 P.2d 1373, 1378 (Ariz. Ct. App. 1990).   For example, in Morris, the
  Arizona Court of Appeals held that a defendant was required to pay 
  restitution to a victim for property damage to her automobile, expenses for
  rental cars, taxi charges,  and the cost of telephone calls made as a
  result of damage from an accident caused by the  defendant.  See 839 P.2d 
  at 438-39.  The court held that these expenses were proper subjects of a 
  restitution order because they were "the natural consequences" of the
  defendant's conduct that  would not have occurred but for the defendant
  driving while under the influence.  Id. at 439.

       Although Arizona disallows restitution for pain and suffering in its
  statute, as we have in  Vermont through case law, it has construed
  "economic loss" to permit restitution for 

  

  ascertainable  measures victims have taken on the basis of emotional
  trauma.  See Ariz. Rev. Stat. Ann. § 13-105(14); Wideman, 798 P.2d  at
  1378; State v. Brady, 819 P.2d 1033, 1034 (Ariz. Ct. App. 1991).  In
  Wideman, upon sentencing the defendant for first degree murder and theft of
  the victim's  automobile, the defendant was ordered to pay restitution to
  the victim's family for costs of mental  health counseling they incurred
  after the victim's death.  See 798 P.2d  at 1378.  The court held that  even
  though pain and suffering is not an "economic loss," the costs of
  alleviating the pain and  suffering were "economic losses" compensable by
  restitution under the Arizona statute.  See id.   The court found the
  counseling expenses to be an "economic loss" because they were directly 
  attributable to the defendant's conduct.  See id.  On a similar rationale,
  the Brady court allowed  economic losses attributable to establishing a new
  residence for a rape victim to restore her  "equanimity."  Brady, 819 P.2d 
  at 1034.  

       Wisconsin's approach to restitution is similar, and its courts have
  granted restitution for the  kind of expenses allowed by the trial court
  below.  See, e.g., State v. Behnke, 553 N.W.2d 265,  273 (Wis. Ct. App.
  1996).  Again, the cost of changing locks were compensable in Behnke
  because  the Wisconsin statute allowed them as "special damage," which is
  defined in that statute as any  specific expenditure made by a victim
  because of the crime.  See id. at 273. 

       It is apparent that our own restitution statute is much narrower,
  requiring that a  compensable loss be material and flow from a direct
  injury to person or property, implying that  consequential economic losses
  are not permitted.  Therefore, the cases with similar facts from other 
  jurisdictions do not provide persuasive authority for permissible
  restitution in Vermont.  Generally,  we have viewed restitution damages
  more narrowly than damages in a civil case.  See State v.  Fontaine, 9 Vt.
  L.W. 96, 97 (1998) (reversing trial court order requiring defendant to pay
  child  support to children of fatal motor vehicle accident victim).  As
  stated above, restitution is not a  substitute for an award of civil
  damages.  See Jarvis, 146 Vt. at 640, 509 A.2d  at 1007.   Moreover, in
  Vermont, the damages claimed herein may very well be compensable from the 
  Victim's Compensation Board, as the State claims.  See 13 V.S.A. § 5352. 
  The discretion  of 

  

  the  court to order restitution as part of the sentencing process,
  however, is more limited and does not  extend to the costs ordered here.   

       Defendant's conviction is affirmed.  The restitution order is vacated.



	FOR THE COURT:



	_______________________________________
	Associate Justice