Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
N AOMI L UDLOW , Defendant and Appellant.
Opinion No. 20140106-CA Filed June 11, 2015 Fourth District Court, Provo Department The Honorable James R. Taylor No. 121402619 Douglas J. Thompson, Attorney for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
J UDGE J AMES Z. D AVIS authored this Opinion, in which J UDGES S TEPHEN L. R OTH and K ATE A. T OOMEY concurred.
DAVIS, Judge: Naomi Ludlow appeals the district court’s order of
restitution in connection with her conviction for theft. We reverse and remand for further proceedings.
BACKGROUND In September 2012, Ludlow was charged with vehicle
burglary and theft. She pleaded guilty to the theft charge, and the vehicle-burglary charge was dismissed. The State requеsted that restitution be paid to the victim of the theft. Ludlow objected to the State’s calculation of the restitution amount and requested a hearing. At the restitution hearing on November 14, 2013, the State
presented testimony from the victim of the theft regarding the items stolen from her vehicle. She testified that ‚a Gateway laptop, a fourth generation iPod, a Droid X smartphone, [a] Pioneer amp, . . . two Kicker [subwoofers], [a] Pioneer [stereo] deck*,+ . . . some cash*,+ . . . and some name brand clothes‛ were stolen. She also testified regarding the agе and retail value of the stolen items: her grandparents paid $1,500 for the laptop in 2009; she paid $300 for the iPod six months before it was stolen; her stepfather paid $300 for her smartphone a year before it was stolen; the amplifier, the two subwoofers, and the stereo deck were all ‚fairly new‛ and had retail values of $150, $200, and $150, respectively; the cash totaled approximately $100; and ‚six or seven shirts‛ and ‚four pairs of pants‛ that were ‚about a year old‛ cost ‚around $40 to $50 *apiece+ brand new.‛ [1] Ludlow asserted that the victim had ‚overstate*d+ the value of the items.‛ She requested that the court ‚downward depart from‛ the amount requested by the State and also that the court take into account that some of the items had been returned to the victim. However, Ludlow did not put on any specific 1. The victim testified that she took ‚wear and tear‛ into account when determining the value of the stolen items: ‚I just looked at the year of the item and went back and looked at what the retail price was back then and then I gave or take some because I knew wear and tear on it and everything so . . . it’s just my best estimation.‛ Nevertheless, her testimony regarding the individual items indicated that the values she assigned reflected either the price originally paid for the item or the ‚retail value‛ of the item. As Ludlow points out, the victim ‚gave absolutely no indication‛ in her testimоny regarding the individual items that her estimates ‚were in any way accounting for depreciation.‛ This was the district court’s impression as well: ‚The only testimony I have is the purchase price. . . . I don’t have any evidence from which I can discount the values . . . .‛ evidence regarding the value of the stolen items. The district court acknowledged that the stereo deck and some of the clothing items were returned and reduced the requested restitution by $350 to account for those items. [2] But because Ludlow had failed to contradict the State’s assertion of value, the court used the purchase prices identified by the victim to calculate the value of the remaining stolen items. Accordingly, the district court ordered that Ludlow pay restitution in the amount of $2,750.
ISSUE AND STANDARD OF REVIEW Because the victim testified as to only the retail value of
the stolen items and the State put on no evidence of the items’
fair market values, Ludlow asserts that the evidence was
insufficient to support the district court’s calculation of
restitution. We ‚will not disturb a trial court’s restitution order
unless it exceeds that prescribed by law or [the trial court]
оtherwise abused its discretion. A trial court will be deemed to
have abused its discretion only if no reasonable [person] would
take the view adopted by the trial court.‛
State v. Hight
, 2008 UT
App 118, ¶ 2,
ANALYSIS ‚In the calculation of . . . restitution, the victim is limited
to recovering only ‘pecuniary damages.’‛ State v. Brown , 2014 UT 48, ¶ 22, 342 P.3d 239 (quoting Utah Code § 77-38a-102(11) (‚‘Restitution’ means full, partial, or nominal payment for 2. The district court assessed the total value of the clothing at $400, based on the victim’s testimony, and reduced that amount by half to account for the returned items.
pecuniary damages to a victim . . . .‛)). ‚Pecuniary damages‛
relating to property are calculated based on ‚the fair market
value of property taken, destroyed, broken, or otherwise
harmed.‛ Utah Code Ann. § 77-38a-102(6) (LexisNexis 2012).
‚Fair market value is measured by what the owner [of the
property] could expect to receive, and the amount a willing
buyer would pay to the true owner for the stolen item.‛
State v.
Greene
, 2006 UT App 445, ¶ 11, 147 P.3d 957 (alteration in
original) (citation and internal quotation marks omitted).
Nevertheless, ‚the measure of damages is flexible, allowing trial
courts to fashion an equitable award to the victim.‛
State v.
Corbitt
, 2003 UT App 417, ¶ 14, 82 P.3d 211;
cf. Jenkins v.
Equipment Ctr., Inc.
, 869 P.2d 1000, 1004 (Utah Ct. App. 1994)
(holding that ‚*t+he primary objective in rendering an award of
damages for conversion[
[3]
] is to award the injured party full
compensation for actual losses‛ and that damages can therefore
‚be modified in the interest of fairness‛ (citation and internal
quotation marks omitted)). Thus, ‚*i+n some cases, a purchase
price may be appropriate to a determination of loss.‛
Corbitt
,
of restitution to compensate a victim for the loss of a two-week- old truck in State v. Corbitt , 2003 UT App 417, 82 P.3d 211, we held that a district court did not exceed its discretion by using the truck’s purchase price rаther than the insurance company’s much lower valuation of the truck. Id. ¶ 16. While it may have 3. Cases addressing damages in the context of civil conversion actions are relevant to our analysis because pecuniary damages in the restitution context are those damages ‚which a person could recover in a civil action arising out of the facts or events constituting the defendant’s criminal activities.‛ Utah Code Ann. § 77-38a-102(6) (LexisNexis 2012).
been unrealistic for the victim in
Corbitt
to expect to receive the
equivalent of the truck’s purchase price if he attempted tо sell
the truck when it was two weeks old, it would also have been
unrealistic to expect that the victim would have sold his two-
week-old truck except under urgent necessity. And ‚the price at
which someone would sell under urgent necessity‛ is not an
appropriate measure of fair market value.
State v. Gorlick
, 605
P.2d 761, 762 (Utah 1979). Thus, purchase price was a more
equitable estimate of the truck’s value in that case—and of the
victim’s loss—than the insurance valuation.
See Corbitt
, 2003 UT
App 417, ¶ 16;
see also State v. Ellis
,
valuate a victim’s loss of items for which there is little or no
market.
Cf. Haycraft v. Adams
, 24 P.2d 1110, 1112 (Utah 1933)
(‚The measure of damages for the conversion of property is the
market value,
if the property has a market value
, at the time of the
conversion.‛ (emphasis added)). For example, the victim in this
case may have been unable to sell her clothing items for more
than a nominal amount, but it is unlikely that she would have
ever considered doing so when the items were still of value to
her. Thus, the amount a willing buyer would pay for the victim’s
stolen shirts and pants may not have been an equitable
calculation of those items’ value.
See Ellis
, 838 P.2d at 1312
(‚*I+tems of personal clothing depreciate drastically almost as
soon as they are worn. In such cases it would be appropriate to
award the victim the purchase price of his loss.‛);
State v.
Tetrault
,
there are circumstances where the large gap between the amount
a willing buyer would pay and the amount a willing seller
would accept is such that the court cannot accurately calculate
fair mаrket value while still fashioning an equitable award for
the victim. In such circumstances, the court should err on the
side of compensating the victim for his or her loss.
See Monson v.
Carver
,
price may be appropriate to a determination of loss,‛ we have
also held that ‚in other cases it may not be appropriate.‛
Id.
In
the case at hand, where the majority of the stolen items were
electronics of various ages that would clearly have a market
value, the district court exceeded its discretion by using
purchase price to calculate the value of all the stolen property.
See, e.g.
,
Hunter v. State
,
actual or estimated amount of restitution.‛ Utah Code Ann. § 77-
38a-202(1)–(2) (LexisNexis 2012). The district court in this case
acknowledged, ‚The only testimony I have is the purchase
price.‛ Nevertheless, the district court declined to ‚discount the
values‛ presented by the State in the absence of evidence
supporting such a discount and simply calculated the amount of
restitution using the purchase prices provided by the victim. By
doing so, the court essentially shifted the burden of proof to
Ludlow to demonstrate fair market value without requiring thе
State to present prima facie evidence of fair market value.
In the context of proving damages for conversion, our
supreme court has held that ‚the cost or price paid or
reproduction value‛ of the converted item may be ‚a starting
рoint‛ for calculating damages but that unless such evidence ‚is
connected by some competent evidence that brings the cost or
purchase price into relation with market value . . . , the evidence
of cost or purchase price becomes incоmpetent and immaterial.‛
Haycraft
, 24 P.2d at 1112;
accord Smith v. Mine & Smelter Supply
Co.
, 88 P. 683, 685 (Utah 1907);
see also Grimes v. Commonwealth
,
prices identified by the victim to the market value of the items. As the district court observed, it could not ‚discount the values . . . just because‛ when it was presented with no evidence of the items’ market value. See In re R.H. , 728 S.E.2d 911, 912–13 (Ga. Ct. App. 2012) (vacating a restitution award, in which the only evidence of value was purchase price, where the trial court attempted to set the amount of restitution by arbitrarily subtracting from the purchase price without any actual evidence of fair market value). But when the State failed to meet its burden to demonstrate the appropriate amount of restitution, the district court should not have resolved the lack of evidence by granting the victim a windfall. Rather, the court should have calculated the values of the items for which purchase price provided an equitable approximation of value, if any, and awarded nominal restitution for the remaining items. Cf. Haycraft v. Adams , 24 P.2d 1110, 1112 (Utah 1933). See generally Utah Code Ann. § 77-38a-102(11) (LexisNexis 2012) (indicating that restitution may consist of nominal damages). By calculating the restitution award based on the purchase prices of the stolen items under the circumstances of this case, the district court exceеded its discretion.
CONCLUSION For the foregoing reasons, we agree with Ludlow that the
district court exceeded its discretion in calculating the amount of restitution based on the purchase prices of the stolen items rather than their fair market value. Accordingly, we reverse the district court’s restitution award and remand for a new restitution hearing.