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COA affirms $1,380 restitution order for missing CDs, coins

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The Indiana Court of Appeals held Thursday that a trial court did not err in letting the state present evidence of a victim’s loss for the first time at a restitution hearing. It affirmed an order that Kenneth Smith pay $1,380 to William Kirkham for missing CDs and coins.

Smith was convicted of Class D felony theft for stealing a radio, guitar, DVDs and a silver coin from Kirkham’s house while he was away. At the restitution hearing, Kirkham said he was also missing nearly 400 CDs and about $100 in cash in the form of silver dollars and half dollars. Smith objected, but the court allowed the testimony. It then determined the loss was $1,380.

The trial court asked if Smith could afford to pay $230 a month toward restitution, and Smith said he was paying $240 a month for home detention. The judge ordered Smith to pay the restitution first and then the court would address the home detention payments.

The COA found the trial court based its restitution order wholly on the acts underlying Smith’s convictions and that Kirkham’s testimony demonstrated his degree of loss attributable to Smith’s crime. Also, restricting evidence of the victim’s actual loss to that which the prosecutor uses to obtain a conviction might limit the amount the victim can recover under Indiana law, Judge Edward Najam pointed out in Kenneth Smith v. State of Indiana, 49A02-1212-CR-1017.

The judges also found the trial court looked into Smith’s ability to pay. Smith did not dispute that he could pay $240 a month for home detention so he could afford $230 for restitution every month.

 

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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