Robert B. Coffey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 22 2018, 8:35 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert B. Coffey, October 22, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-479 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Plaintiff. Judge Trial Court Cause No. 22D01-1509-FD-1749

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-479 | October 22, 2018 Page 1 of 7 [1] Robert B. Coffey appeals from the trial court’s restitution order. We affirm.

Facts and Procedural History [2] Coffey was the Paymaster of The Southeast Marine Corps League (the

“League”), a military veterans league. On September 18, 2015, the State

charged him with theft as a class D felony and theft as a level 6 felony. In

October 2017, the State and Coffey entered into a plea agreement pursuant to

which he agreed to plead guilty to two counts as amended of criminal

conversion as class A misdemeanors. The parties agreed he would receive a

sentence of 365 days suspended on each count to be served concurrently and

that the League had a right to a restitution hearing. Coffey pled guilty pursuant

to the plea agreement, and the court accepted the plea and sentenced him

consistent with the plea agreement. [3] On January 25, 2018, the court held a restitution hearing. Jason Fessell, a

Senior Vice Commandant of the League, testified that Coffey told the League

that Harley Davidson would donate a motorcycle to the League for a raffle. He

indicated the League’s goal was to raise $30,000 by selling 300 raffle tickets for

$100 each. Fessell testified that he and members of the League, other than

Coffey, sold 175 of the tickets and that Coffey claimed to have sold 125 tickets.

He testified that Coffey, as the Paymaster, controlled the funds coming into and

out of the League and its checking account and that the League opened a

separate account for the raffle event. Fessell testified that Coffey was not

present for most of the day on the day of the raffle drawing, the League

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proceeded with the drawing and a winner was drawn, and at that time Coffey

showed up and said that he had locked the keys in the warehouse where the

motorcycle was located and did not have access to it. Fessell indicated that

several members of the League drove to the warehouse, looked through the

windows, and discovered that basically the warehouse was empty. Fessell

indicated that Coffey, at the sheriff’s office, admitted that there was no

motorcycle. [4] Fessell testified that the League knew that $17,500 should have been in its

account because it had sold 175 tickets and that, when Coffey turned over the

account, it contained about $550. Fessell also indicated that Coffey produced a

motorcycle for the raffle winner and that he assumed that Coffey used the

$17,500 that had been raised to purchase the motorcycle.1 Fessell testified that

Coffey took the League’s ability or opportunity to raise another $12,500 based

on the 125 tickets he claimed to have sold and that the League was seeking that

amount. Fessell also indicated that, when the members sold tickets, they gave

the money to Coffey to place into the League’s account. [5] Michael Maloney, the Commandant of the League at the time of the raffle,

testified that approximately 160 raffle tickets were sold. He indicated that he

and other League members met with a detective and that, when the detective

1 The State presented a document reflecting a purchase of a Harley Davidson vehicle for a total of $17,721.50 including sales tax and fees, and the name identified as the buyer on the document is the name of the person who Fessell testified was the raffle winner.

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asked what the League wanted to do, he told the detective that Coffey needed

to make the League whole on the motorcycle. He testified that he knew the

League had sold $16,000 worth of tickets, that there were expenses for the

shirts, trophies, and food, and that he believed the League was owed twelve or

thirteen thousand dollars. [6] Coffey testified that he thought 155 to 160 raffle tickets had been sold, that he

intended to obtain a donated motorcycle from Harley Davidson but that fell

through, and that he was embarrassed and panicked. He testified that he and

his wife took money from their retirement accounts to pay for the motorcycle,

and that he was asked to purchase, and did purchase, the motorcycle. [7] In closing, the prosecutor stated the League was requesting restitution in the

amount of $12,500. Coffey’s counsel argued that Coffey purchased the

motorcycle and did everything he was requested to do. He also stated he did

not know why the League was coming back for unsold tickets and argued that

whether the League would have sold those tickets was speculative. [8] The trial court indicated it would order restitution in the amount of $12,500 and

stated in part:

I believe there’s an argument for you to be responsible for [$16,000]. . . . I still don’t accept that [160] tickets were sold and that money just doesn’t, is gone. I just, I have a hard time understanding that there’s [$16,000] of T-shirts, registrations and trophies that have gone in and out when it’s an organization that never had large sums of money to begin with. . . . I think that [$16,000] could have gone to support veterans and instead had to

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be used, um, for I’m not sure. I still don’t know if that was partly used to purchased [sic] the bike that should have been a donated bike. I don’t, I don’t know where the money is. But bottom line, it was your responsibility. [S]o I’m ordering that [$12,500] be paid toward the League.

Transcript at 132-133.

Discussion [9] Coffey argues that the League requested restitution based on the amount it

could have raised had Coffey given it the opportunity to sell the 125 tickets

which he claimed to have sold, that there is no evidence the League would have

sold his 125 raffle tickets, and accordingly that any conclusion the League

suffered losses of $12,500 is pure speculation. The State responds that, while

the trial court awarded restitution in the amount of $12,500 as the League

requested, it did not do so based upon any speculation regarding the value of

the 125 raffle tickets Coffey purported to have sold and that, instead, the court

properly found that the evidence showed that Coffey exercised unauthorized

control over the money collected for the raffle tickets that had been actually

sold by his fellow League members in an amount at least equaling $16,000. In

reply, Coffey argues that, at the restitution hearing, the State presented the

testimony of a representative from the League who stated the position of the

League that restitution be requested for the value of the unsold raffle tickets.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-479 | October 22, 2018 Page 5 of 7 [10] A person who knowingly or intentionally exerts unauthorized control over

property of another person commits criminal conversion, a class A

misdemeanor. Ind. Code § 35-43-4-3. [11] The primary purpose of restitution is to vindicate the rights of society and to

impress upon the defendant the magnitude of the loss the crime has caused.

Gonzalez v. State, 3 N.E.3d 27, 29 (Ind. Ct. App. 2014). Restitution also serves

to compensate the offender’s victim. Id. An order of restitution is generally

within the trial court’s discretion, and it will be reversed only upon a finding of

an abuse of that discretion. Id. at 30. [12] Indiana law authorizes the trial court to order restitution for damages incurred

as a result of the crime. See Ind. Code § 35-50-5-3. Any loss proven to be

attributable to the defendant’s charged crimes is recoverable as restitution.

Smith v. State, 990 N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied. Under

our abuse of discretion standard, we will affirm the trial court’s decision if there

is any evidence supporting the decision. Id. We will not reweigh the evidence.

Id. [13] The record shows that evidence was presented that 160 raffle tickets were sold

for a total of $16,000 and that the proceeds of those ticket sales were given to

Coffey but not turned over to the League. Fessell testified that 175 tickets were

sold for a total of $17,500 and that the League was “out that money.”

Transcript at 27. He indicated that, when the League members sold the raffle

tickets, they gave the money to Coffey to place in the League’s account. Coffey

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indicated that he thought 155 to 160 raffle tickets had been sold. Maloney

indicated that approximately 160 tickets were sold and that he thought that the

League was owed, after accounting for expenses, twelve or thirteen thousand

dollars. We will not reweigh the evidence and will affirm if there is any

evidence supporting the restitution order. See Smith, 990 N.E.2d at 520. [14] Based upon the record, and in light of the raffle tickets actually sold, we cannot

say that the trial court abused its discretion in ordering Coffey to pay restitution

in the amount of $12,500. [15] For the foregoing reasons, we affirm the trial court’s order. [16] Affirmed.

Altice, J., and Tavitas, J., concur.

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