Brent Simcox v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Jun 03 2015, 7:21 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Special Asst. to the State Public Defender Attorney General of Indiana Wieneke Law Office, LLC Cynthia L. Ploughe Plainfield, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brent Simcox, June 3, 2015

Appellant-Defendant, Court of Appeals Case No. 52A04-1501-CR-8 v. Appeal from the Miami Circuit Court. The Honorable Timothy P. Spahr, State of Indiana, Judge. Appellee-Plaintiff Cause No. 52C01-1405-FB-21

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 52A04-1501-CR-8 | June 3, 2015 Page 1 of 5 [1] Brent Simcox appeals the amount of restitution ordered by the trial court after

Simcox pleaded guilty to burglary as a class B felony. Simcox argues that there

is insufficient evidence supporting the trial court’s valuation of the victim’s

monetary loss. Finding no error, we affirm.

Facts [2] On May 10, 2014, Simcox broke into and entered the dwelling of his parents,

Donald and Kimberly Simcox. He stole a number of items including

Kimberly’s state tax refund check and jewelry. On November 13, 2014, Simcox

pleaded guilty to class B felony burglary. The plea agreement provided that he

would serve an eight-year sentence, with two years suspended to probation, and

left the amount of restitution for the trial court to determine. [3] On December 4, 2014, the trial court accepted the plea agreement and held an

evidentiary hearing regarding the value of the items stolen from Kimberly. At

the hearing, Kimberly testified as follows regarding the items and her estimate

of their value:

 A state tax refund check worth $288;  Four gold watches, two of which were antiques, which Kimberly testified were expensive watches and estimated their value at $300 apiece;  Half-carat diamond earrings whose replacement cost would be $2,500;  One-carat marquise diamond whose replacement cost would be $7,000;  Marquise diamond ring purchased at a cost of $375;  Two wedding bands that cost $700 when purchased thirty-seven years ago, and the replacement value of Kimberly’s band, which contains a diamond, would be $2,000;

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 Multiple necklaces belonging to Kimberly’s deceased mother, one of which was an emerald necklace with two diamonds that her father had made for her mother, and Kimberly estimated that the total value of all of the necklaces was $1,000;  A family heirloom diamond ring, and Kimberly estimated the replacement cost would be $25,000.

Tr. p. 7-14. [4] The trial court accepted Kimberly’s valuation of all items except for the family

heirloom ring, which it valued at $1,000 rather than $25,000, and the two

wedding bands, which it valued collectively at $2,200 rather than $2,700. The

trial court ordered Simcox to pay restitution in the amount of $15,563. Simcox

now appeals.

Discussion and Decision [5] Simcox’s sole argument on appeal is that the trial court abused its discretion in

calculating the amount of restitution he is ordered to pay. Indiana Code section

35-50-5-3 provides that a trial court may order the defendant to make restitution

to the victim of the crime. Among other things, the trial court “shall base its

restitution order upon a consideration of . . . property damages of the victim

incurred as a result of the crime, based on the actual cost of repair (or

replacement if repair is inappropriate)[.]” I.C. § 35-50-5-3(a)(1). We review

restitution orders for an abuse of discretion. Bickford v. State, 25 N.E.3d 1275,

1279 (Ind. Ct. App. 2015). The evidence supporting the amount of a restitution

order is sufficient if there is a reasonable basis for the loss and it is not based on

“mere speculation or conjecture.” T.C. v. State, 839 N.E.2d 1222, 1227 (Ind.

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Ct. App. 2005). Sworn victim testimony may provide sufficient evidentiary

support for a restitution order. Blixt v. State, 872 N.E.2d 149, 154 (Ind. Ct. App.

2007). [6] Initially, we note that Simcox does not dispute the valuation of the state refund

check ($288), the Marquise diamond ring ($375), the half-carat diamond

earrings ($2,500), or the one-carat diamond ring ($7,000). Simcox focuses on

the remaining items, arguing that because Kimberly was merely estimating their

value and had no basis upon which to support her estimation, the evidence was

mere speculation or conjecture. [7] With respect to the four gold watches, Kimberly testified that one of them was

an antique handed down from her mother-in-law and another was her mother’s

watch. All four were gold. Although she was unsure of their precise value, she

was able to estimate that they were worth approximately $300 apiece. [8] Regarding her mother’s necklaces, she was unable to describe each of them

with specificity. But she described one necklace that had been made for her

mother by her father when he was serving in Thailand, testifying that it had an

emerald with a diamond on either side of the emerald. Kimberly estimated that

the total value of all of the necklaces was $1,000. [9] With respect to the wedding bands of Kimberly and her husband, she testified

that when they were purchased over thirty years ago they cost approximately

$700. She also stated that her wedding band contains a diamond and estimated

its replacement cost to be $2,000. The trial court elected to value the two bands

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collectively at $2,200 rather than the full amount of $2,700 estimated by

Kimberly. [10] Finally, Kimberly estimated that her grandmother’s antique diamond ring was

worth approximately $25,000. The trial court found that to be far too high of a

valuation and instead valued that ring at $1,000. [11] With respect to each of these items, Kimberly was able to describe them with

specificity and detail. Cf. T.C., 839 N.E.2d at 1227-28 (holding that where

victim was unable to state with certainty which stolen items had been returned

to him, and which returned items were in a saleable condition, the evidence was

insufficient to support the restitution order). Many of them were antiques and

the jewelry included emeralds, diamond, silver, and gold. The trial court did

not give carte blanche to Kimberly’s valuation, decreasing her estimated

amounts when it deemed it necessary. While Simcox presented argument and

cross-examined Kimberly regarding her valuation, he presented no evidence of

his own to counter Kimberly’s testimony. We find that Kimberly’s testimony

about the value of these items was not mere speculation or conjecture, and that

the trial court did not abuse its discretion in ordering Simcox to pay restitution

in the amount of $15,563. [12] The judgment of the trial court is affirmed.

Najam, J., and Friedlander, J., concur.

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