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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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