The Straight Dope on Restitution


State v. DeMello (ICA August 27, 2013)
Background. Lawrence DeMello was charged with harassment and simple trespass. At trial, Alex Kelekoma testified that he was married to Carleen Kelekoma. His ex-wife, Cherilyn Kelekoma, lived with her boyfriend, DeMello. One day there was a dispute over picking up Alex’s son between the couples. Alex called DeMello to talk about it. DeMello was argumentative, but calm. Carleen took the phone and started talking to DeMello, and according to Carleen, DeMello hung up on her. Then Cherilyn called and Carleen answered the phone. Carleen said to her that she didn’t do anything to him. A few minutes later, Alex saw DeMello in front of his house. Alex went outside, DeMello hopped the gate. Alex testified that DeMello approached Carleen and was very aggressive. Cherilyn showed up and approached Carleen. It looked to Alex like Cherilyn was going to attack Carleen so he got in between the women. Cherilyn was still trying to go for Carleen and all three fell on the lawn. Alex testified that at that point, DeMello grabbed Carleen’s hair and dragged her about ten feet across the lawn. Alex shoved DeMello away. According to Alex, DeMello started bouncing around saying, “[d]on’t put your hands on me. You know, like I will knock you out.” Alex told them to leave, but they wouldn’t.
Calreen testified that she felt excruciated pain after she fell on the lawn like her hair was being pulled. She also felt pain in her neck as it jerked back and forth then she testified that she lost consciousness. When she came to, she was under the lemon tree having a hard time breathing and feeling dizzy. She was still in pain. She told DeMello and Cherilyn to get off her property, but they wouldn’t leave. Carleen went inside the house and called the police. The police arrived to see DeMello yelling at the Kelekomas.
Cherilyn testified that Carleen attacked her first and continued to attack her even when Alex intervened. She testified that Carleen grabbed her hair before they all fell to the ground. Cherilyn testified that although she didn’t see DeMello grab Carleen’s hair, he might have done that to get Carleen to let go of her own hair. Cherilyn also testified that no one told them to leave the property.
DeMello testified that Alex invited him onto the property so he hopped the gate and came on like he normally did in the past. DeMello testified that Carleen came up to him aggressively and got in his face so he put up his hands. When Cherilyn came over, Carleen started attacking her. DeMello testified that Alex never fell to the ground with the women. He ran off into a corner. DeMello said that Carleen was pulling Cherilyn’s hair so he tried to pull her off. His hand got tangled in her hair, and he pulled her hair to protect Cherilyn. He told Carleen to let her go.
The district court found DeMello guilty as charged and expressly rejected the defense-of-others defense. According to the district court, there was no reason to pull Carleen’s hair to protect Cherilyn because Alex was in the middle. The district court sentenced DeMello to jail for 30 days and anger management classes. He also fined him $100 for the simple trespass. Carleen later claimed medical bills and lost wages as restitution. Carleen claimed that the incident exacerbated a pre-existing neck injury from a dirt bike accident. The district court awarded more than $3,000 in medical bills and lost wages. DeMello appealed.
The Defense-of-Others Defense Properly Rejected. The ICA held that the district court did not err in rejecting DeMello’s defense-of-others justification under HRS § 703-305. “The prosecution disproves a justification defense beyond a reasonable doubt when the trial court believes the prosecution’s case and disbelieves the defendant’s case.” State v. Juhn, 83 Hawai'i 472, 483, 927 P.2d 1355, 1366 (1996). That, according to the ICA, is exactly what happened here. The district court obviously credited Carleen and Alex’s version of what happened because it found that Alex was between the women. DeMello testified that Alex was in the corner. “Verdicts based on conflicting evidence will not be set aside where there is substantial evidence to support the trier of fact’s findings.” State v. Sua, 92 Hawai'i 61, 69, 987 P.2d 959, 967 (1999).
But the Sentence is Unlawful. Harassment is a petty misdemeanor. HRS § 711-1106. The maximum sentence for a petty misdemeanor is 30 days in jail. HRS § 706-663. Nothing in the statute authorizes the district court to order anger management or any other treatment program. The ICA noted, however, that HRS § 706-624(2)(j) allows the district court to place a defendant on probation and order mental health treatment. But that would mean there can be no thirty-day jail term. The prosecution conceded this error.
Restitution is Required when Requested by Victim. “The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense when requested by the victim.” HRS § 706-646(2). According to the ICA, the statute plainly and unambiguously requires restitution when the victim requests it and can show losses caused by the defendant. “[A] defendant cannot be ordered to pay restitution unless he caused a victim’s losses.” State v. Domingo, 121 Hawai'i 191, 194, 216 P.3d 117, 120 (App. 2009). Here, the ICA held that the district court had sufficient evidence to find causation for the medical bills and it did not need to apportion what he caused and what Cherilyn might have caused from the hair pulling.
Wage Losses are not Part of a Restitution Award. The ICA agreed with DeMello that the $1,155 in lost income cannot be part of the restitution award. The ICA began by noting that HRS § 706-646 does not expressly prohibit or allow lost wages. However, the legislative history shows that lost wages were considered, but rejected by the House. H. Stand. Comm. Rep. No. 683-98, 1998 Hse Journal at 1305-06. It never made it back into the legislation. Thus, the ICA held that the omission was intentional and HRS § 706-646 does not authorize lost wages.
Preexisting Injury Complicates Restitution Findings. Restitution is limited to “reasonable and verified losses suffered by the victim or victims as a result of the defendant’s offense[.]” HRS § 706-646(2). That means there must be a nexus between the defendant’s conduct and the victim’s loss. See Domingo, supra. The ICA relied on cases from other jurisdictions that have dealt with problems in causation for restitution. The ICA held that “where there is more than one possible cause for the loss, the court must determine whether the evidence supports the finding that the defendant’s conduct caused or contributed to the victim’s loss.” See State v. Gibson, 160 N.H. 445, 449, 999 A.2d 240, 243 (2010); Commonwealth v. Balisteri, 329 Pa. Super. 148, 155, 478 A.2d 5, 9 (1984).
In this case, the district court found that the DeMello exacerbated a preexisting injury, but found that apportionment was impossible because there was no expert testimony or medical opinion presented by the prosecution. This conclusion, according to the ICA, is “at odds” with the imposition of the award. The ICA vacated the entire award and remanded for a further evidentiary hearing, if necessary.
The Prosecution must Prove it by Preponderance of Evidence. The burden of proof has never been expressly established in Hawai'i. The ICA took this opportunity to lay it out clearly and succinctly. Restitution is “quasi-civil” and is “designed to compensate the victim as an adjunct of punishment.” State v. Feliciano, 103 Hawai'i 269, 272, 81 P.3d 1184, 1187 (2003). It is also intended to be an expedient method of compensation. Stand. Comm. Rep. 683-98, 1998 Hse. Journal at 1305.
Because it is quasi-civil, the ICA held that the prosecution has burden of proof to show causation by a preponderance of the evidence. The ICA noted that other jurisdictions concur. In re William L., 211 Ariz. 236, 238, 119 P.3d 1039, 1041 (2005); People v. Keichler, 129 Cal. App. 4th 1039, 1045, 29 Cal. Rptr. 3d 120, 124 (2005); People v. Carpenter, 885 P.2d 334, 336 (Colo. App. 1994); Winborn v. State, 625 So.2d 977, 977 (Fla. App. 1993); Lawrenz v. State, 194 Ga. App. 724, 724, 391 S.E.2d 703, 704 (1990); Commonwealth v. Palmer, 61 Mass. App. Ct. 230, 233, 808 N.E.2d 848, 850 (2004); State v. Kleppe, 800 N.W.2d 311, 319 (N.D. 2011); McCullough v. Commonwealth, 38 Va. App. 811, 816-17, 568 S.E.2d 449, 451 (2002); State v. Kinneman, 122 Wash. App. 850, 860, 95 P.3d 1277, 1283 (2004); State v. Shannon, 155 N.H. 135, 139, 920 A.2d 1163, 1166 (2007).
The ICA held that the initial burden is on the prosecution to make a prima facie showing for the restitution claim, but the defendant contesting the amount must "come forward with evidence to support his or her challenge."


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