Marilyn M. Clontz v. State of Indiana (mem. dec.)
21A01-1609-CR-2125
| Ind. Ct. App. | Mar 16, 2017Background
- Marilyn Clontz was IOI’s business manager, board member, and authorized signer on company accounts; she and her husband later formed a related company, Dynamic Munitions (DM).
- IOI owners discovered missing funds, unauthorized bank accounts and a $160,000 loan, and reported the matter; Detective Johnson investigated and compiled bank-transaction exhibits with numerous flagged transactions from 2010–2012.
- Clontz pleaded guilty to corrupt business influence (Class C felony); the State dismissed other charges; sentencing suspended to probation with restitution to be determined by the court.
- At a restitution hearing, the trial court ordered Clontz to pay $321,147.93 for stolen funds, $20,000 for CPA fees, and $300,000 for lost business value; monthly payments were set at $800 then later reduced to $250 after an ability-to-pay hearing.
- On appeal, Clontz challenged (1) the sufficiency of evidence supporting the $321,147.93 theft figure, (2) the award of $20,000 CPA fees, (3) the $300,000 lost-value award, and (4) the $250 monthly payment as unaffordable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for $321,147.93 stolen funds | State relied on Detective Johnson’s transaction exhibit to prove unauthorized withdrawals | Clontz showed many transactions lacked IOI documentation and Detective Johnson did not confirm authorization with IOI; some payments were legitimate (e.g., taxes) | Reversed in part and remanded: record insufficient to support approx. $310k of the amount; new restitution hearing required to prove each questioned transaction |
| CPA fees ($20,000) as restitution | State argued CPA fees incurred due to defendant’s misconduct are compensable under restitution statute | Clontz argued those are expenditures to investigate/repair finances and not recoverable as restitution | Reversed: CPA fees are not recoverable as criminal restitution under I.C. § 35-50-5-3; civil claim only |
| Lost business value ($300,000) | State: lost sale value and marketability traceable to Clontz’s actions, supported by an earlier higher offer withdrawn due to discovered financial problems | Clontz disputed amount and basis | Affirmed: evidence (offer reduction from $1.4M to $1.0M) supported diminution in value; $300,000 award within court’s discretion |
| Monthly payment amount ($250) | State supported $250/month as reasonable condition of probation | Clontz showed minimal income (~$12,000/yr), poverty-level household, and requested $100/month; State presented no rebuttal | Reversed and remanded: court failed to make sufficient factual findings to show ability to pay $250; new hearing required to set affordable payment |
Key Cases Cited
- Henderson v. State, 848 N.E.2d 341 (Ind. Ct. App.) (restitution authority under I.C. § 35-50-5-3)
- Pearson v. State, 883 N.E.2d 770 (Ind.) (purpose of restitution; court must fix amount a probationer can pay)
- Kays v. State, 963 N.E.2d 507 (Ind.) (abuse-of-discretion review for restitution)
- Gil v. State, 988 N.E.2d 1231 (Ind. Ct. App.) (reversal standard where court misinterprets law)
- Dull v. State, 44 N.E.3d 823 (Ind. Ct. App.) (discussion of restitution standards)
- J.H. v. State, 950 N.E.2d 731 (Ind. Ct. App.) (estimates unsupported by evidence are speculation)
- Morgan v. State, 49 N.E.3d 1091 (Ind. Ct. App.) (State must prove nexus between missing funds and defendant’s crime)
- Lang v. State, 911 N.E.2d 131 (Ind. Ct. App.) (investigation/repair expenditures not proper criminal restitution)
- Garcia v. State, 47 N.E.3d 1249 (Ind. Ct. App.) (remand for new restitution hearing when record is insufficient)
- Iltzsch v. State, 981 N.E.2d 55 (Ind.) (remand procedure for restitution deficiencies)
- Serletic v. Noel, 700 N.E.2d 1159 (Ind. Ct. App.) (measure of business-diminution damages)
- Wittl v. State, 876 N.E.2d 1136 (Ind. Ct. App.) (lost earnings include business loss of income for restitution)
- Romine v. Gagle, 782 N.E.2d 369 (Ind. Ct. App.) (business valuation principles)
- Warrick Cty. v. Waste Mgmt. of Evansville, 732 N.E.2d 1255 (Ind. Ct. App.) (valuation context)
- Bell v. State, 59 N.E.3d 959 (Ind.) (court must inquire into ability to pay restitution)
- Smith v. State, 990 N.E.2d 517 (Ind. Ct. App.) (scope of inquiry into defendant’s financial status)
- Mitchell v. State, 559 N.E.2d 313 (Ind. Ct. App.) (restitution as punishment; court may balance hardship)