State v. VanDusen, 691 A.2d 1053 (Vt. 1997). · Go Syfert
State v. VanDusen, 691 A.2d 1053 (Vt. 1997). Cases Citing This Book View Copy Cite
Quick Summary

A court may award restitution exceeding the value limit of the misdemeanor charge for which a defendant was convicted, provided the order is based on a reasonable certainty of estimated loss.

After being convicted of misdemeanor possession of stolen property, the defendant challenged a $4,000 restitution order, arguing that the amount exceeded the value limit of the misdemeanor charge and was not supported by evidence. The court held that a restitution order may exceed the dollar amount in the criminal charge because the statutory purpose is victim compensation rather than defendant punishment. Furthermore, the court determined that the trial court acted within its discretion because a restitution order requires only a reasonable certainty of estimated loss, and the evidence supported a finding by a preponderance of the evidence that the defendant caused the loss.

65 citation events (56 in the last 25 years) across 1 distinct court.
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Cited for
691 A.2d at 1055 Establishing causation for restitution orders13 citing casesexplaining that, to support restitution order, State must establish causation between victim’s loss and conduct for which defendant was convicted1 citing court put it this way
  • State v. Toby Charbonneau, 2016 VT 83, 152 A.3d 462.published 2 cites
    “A restitution order may not include amounts resulting from conduct on which defendant was acquitted ... or conduct that was not covered by defendant’s conviction.” State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1054-55 (1997) (citat…
  • State v. Morse, 2014 VT 84, 106 A.3d 902.published 4 cites
    State v. VanDusen , 166 Vt. 240, 245 , 691 A.2d 1053, 1055 (1997). ¶ 8.
  • State v. Kenvin, 2011 VT 123, 38 A.3d 26.published 3 cites
    (explaining that, to support restitution order, State must establish causation between victim’s loss and conduct for which defendant was convicted)
  • State v. Plante, 2010 VT 116, 15 A.3d 120.published
    See 13 V.S.A. § 5301(4); State v VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997).
  • State v. Hughes, 2010 VT 72, 5 A.3d 926.published
    (A restitution order may not include amounts resulting from conduct on which defendant was acquitted ... or conduct that was not covered by defendant’s conviction.” (citation omitted))
  • State v. Driscoll, 2008 VT 101, 964 A.2d 1172.published
    State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997).
  • State v. Rollins, 2007 VT 127, 944 A.2d 218.published
    In State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997), we upheld an order of restitution after the State proved, in a sentencing hearing, that the defendant took an amount greater than supported by the defendant’s conviction…
  • State v. Lewis, 711 A.2d 669 (Vt. 1998).published
    Defendant’s argument, however, does not square with our holding in State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997), where we observed that with respect to restitution awards, the Legislature did not intend to limit damages…
  • State v. Thomas, 2010 VT 107, 14 A.3d 961.published 2 cites
    See State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997).
  • State v. Bohannon, 2010 VT 22, 996 A.2d 196.published 4 cites
    See State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997) (noting that restitution statute "is based on the principle of compensation to the victim, rather than punishment of the defendant").
Show 3 more citing cases
  • State v. LaFlam, 2008 VT 108, 965 A.2d 519.published 2 cites
    We have cautioned that “[a]n order of restitution must relate directly to the damage caused by the defendant’s criminal act for which he was convicted.” Id. at 222-23 , 719 A.2d at 403 ; see State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1…
  • State v. Forant, 719 A.2d 399 (Vt. 1998).published 2 cites
    See State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1055 (1997).
  • State v. Pollander, 706 A.2d 1359 (Vt. 1997).published 3 cites
    (it is not inconsistent that State could not prove issue at criminal trial under beyond-reasonable-doubt standard but could at sentencing hearing governed by preponderance-of-evidence standard)
166 Vt. at 245 Determining restitution amount based on preponderance of evidence4 citing cases“discretion in determining the amount of restitution, and only a reasonable certainty of estimated loss is required”4 citing courts quote it
  • State v. Gorton, 2014 VT 1, 90 A.3d 901.published
    State v. VanDusen, 166 Vt. 240, 245 , 691 A.2d 1053, 1056 (1997); see also State v. May, 166 Vt. 41, 45 , 689 A.2d 1075, 1078 (1996) (holding that a restitution order for lost profits was speculative and did not meet the reasonable certain…
  • State v. Randy Bluto, No. 23-AP-133 (Vt. Apr. 5, 2024).unpublished
    See State v. VanDusen, 166 Vt. 240, 245 (1997) 1 The State did not file a brief in this appeal but was granted permission to speak at oral argument. 2 (explaining that trial court has “discretion in determining the amount of restitution, a…
  • State v. Tiffany Marcotte, No. 2013-130 (Vt. Oct. 11, 2013).unpublished
    (explaining that court has “discretion in determining the amount of restitution, and only a reasonable certainty of estimated loss is required)
  • State v. Ty Baker, Sr., 2017 VT 91, 177 A.3d 1093.published
691 A.2d at 1056 Determining restitution amount and court discretion3 citing casesaffirming restitution order as within trial court’s discretion1 citing court put it this way
  • State v. Gorton, 2014 VT 1, 90 A.3d 901.published
    State v. VanDusen, 166 Vt. 240, 245 , 691 A.2d 1053, 1056 (1997); see also State v. May, 166 Vt. 41, 45 , 689 A.2d 1075, 1078 (1996) (holding that a restitution order for lost profits was speculative and did not meet the reasonable certain…
  • State v. Shepherd, 2012 VT 91, 60 A.3d 213.published
    State v. VanDusen, 166 Vt. 240, 245 , 691 A.2d 1053, 1056 (1997).
  • State v. Kenvin, 2011 VT 123, 38 A.3d 26.published 3 cites
    We have repeatedly “cautioned that a restitution order may not be based on conduct that was not covered by the defendant’s convictions State v. Rollins, 2007 VT 127, ¶ 7 , 182 Vt. 644 , 944 A.2d 218 (mem.) (emphasis added) (holding that de…
691 A.2d at 1054 Excluding acquitted conduct from restitution orders1 citing case
  • State v. Toby Charbonneau, 2016 VT 83, 152 A.3d 462.published 2 cites
    “A restitution order may not include amounts resulting from conduct on which defendant was acquitted ... or conduct that was not covered by defendant’s conviction.” State v. VanDusen, 166 Vt. 240, 244 , 691 A.2d 1053, 1054-55 (1997) (citat…
166 Vt. at 242 Sufficiency of evidence for possession of stolen property1 citing case“The court concluded that defendant had been in possession of the steel pipe when it was in long pieces, that he had knowledge the pipe was stolen, and that he had used his employer’s chop saw to cut the pipe into small pieces.”the opinion's own words at *242
Retrieving the full opinion text from the archive…
State of Vermont
v.
Scott C. VanDusen
96-120.
Supreme Court of Vermont.
Jan 31, 1997.
Published opinion
691 A.2d 1053
1997 Vt. LEXIS 10
John T. Quinn, Addison County State’s Attorney, Middlebury, and Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for Plaintiff-Appellee., Peter F. Langrock and Lisa B. Shelkrot of Langrock Sperry & Wool, Middlebury, for Defendant-Appellant.
Gibson, Dooley, Morse, Johnson.
Cited by 23 opinions  |  Published
[*242] Dooley, J.

On May 31, 1995, Frederick Bennett was informed that several hundred feet of stainless steel pipe were missing from his barn in Shoreham. The steel pipe was traced to defendant Scott VanDusen, an employee at a farm in Addison. In August 1995, defendant was charged in a one-count information with felony possession of stolen property valued at approximately $4,500, in violation of 13 V.S.A. § 2561. Upon defendant’s motion, the court reduced the charge to a misdemeanor, having found that the “only evidence is possession] of 18” pieces; hence [of] little value.” Defendant waived the right to trial by jury, and after a court trial, was found guilty of misdemeanor possession of stolen property. Defendant was sentenced to serve three months in jail, to pay a fine of $1,000, and to pay restitution of $4,000. The issues on appeal are (1) whether the evidence was sufficient to support defendant’s conviction of possession of stolen property valued at less than $500, (2) whether restitution is limited to the amount in the charge on which defendant was found guilty, and (3) whether the evidence is sufficient to support the restitution order. We affirm.

In December 1994, Bennett installed in his barn 500-700 feet of two-inch, stainless steel pipe, some of it new, and some of it used. The pipe was stolen from Bennett’s barn between May 26 and May 31, 1995. According to the district court’s written findings of fact, the pipe was “readily identifiable by the blue markings” of the person who installed it. Bennett conducted his own investigation of the theft and located the pipe, cut into short pieces of scrap, at Rutland Waste and Metal Company. A salesperson at Rutland Waste and Metal testified that she bought the scrap metal in July 1995 for $76 and was able to identify defendant as the seller. The court also found that, during the month of June, defendant was in possession of a chop saw that he borrowed from his employer without his employer’s permission. The court concluded that defendant had been in possession of the steel pipe when it was in long pieces, that he had knowledge the pipe was stolen, and that he had used his employer’s chop saw to cut the pipe into small pieces.

Defendant’s first claim of error is that there was insufficient evidence to support his conviction. We will affirm the conviction if the “evidence, when viewed in the light most favorable to the State, fairly and reasonably supports the finding of guilt beyond a reasonable[*243] doubt.” State v. Derouchie, 140 Vt. 437, 441, 440 A.2d 146, 147 (1981). The test is the same whether the evidence is direct or circumstantial. State v. Paradis, 146 Vt. 345, 347, 503 A.2d 132, 133 (1985).

Defendant admits to selling sawed-off pipe ends to Rutland Waste and Metal, but he disputes knowing that the pipe was stolen. Defendant claims that he received some of the scrap from his employer and found the rest abandoned near a bridge; he hypothesizes that someone else stole the pipe, cut it into pieces, and discarded the marked ends. The court rejected defendant’s explanation that he was given the pipe by his employer, or that he found the pipe in short pieces along the side of the road. It determined that defendant “could not give a clear answer to the question of where he had stored the pipe” and “was surreptitious in borrowing the saw from his employer.” Defendant “answered questions [about the steel pipe] in terms of pounds,” whereas a “person having an actual use for pipe would be expected to think of it in terms of length.” In the court’s opinion, defendant was not a credible witness and his version of events was “not believed.”

Although defendant is not required to explain his possession of stolen goods, an explanation “shown to be contrived and false” can be taken as evidence of guilty knowledge. State v. Beyor, 129 Vt. 472, 475, 282 A.2d 819, 821 (1971); see also State v. Ashey, 86 Vt. 479, 481, 86 A. 308, 309 (1913) (jury can reject false explanation, leaving fact of possession unexplained). The court found that defendant offered conflicting statements about where he obtained the stolen pipe and how long the pipe was in his possession. Having found that defendant’s statements were deceitful, the court could properly infer from other evidence that defendant knew or believed the pipe was stolen. Defendant answered questions about the pipe in terms of pounds instead of length; defendant surreptitiously borrowed a chop saw during the same period that the pipe was in his possession; and defendant appeared nervous at the time he sold the pipe. We conclude that the State’s evidence was sufficient to lead a reasonable trier of fact to conclude beyond a reasonable doubt that defendant knew or believed the property in question was stolen. See Paradis, 146 Vt. at 347, 503 A.2d at 134.

Defendant next argues that the court lacked the authority to order restitution of $4,000 when he was convicted only of misdemeanor possession of stolen property, which involves property not exceeding $500 in value. See 13 V.S.A. §§ 2561(b) (person who[*244] possesses stolen property, knowing it to be stolen, shall be punished same as for stealing property), 2502 (larceny of property not exceeding $500 in value is misdemeanor). Restitution must be considered in every case “in which a victim of a crime has suffered a material loss or has incurred medical expenses.” 13 V.S.A. § 7043(a). Restitution may include “cash ... to the victim ... to compensate for damages to the victim’s property . . . .” Id. § 7043(b)(2). To support a restitution order, the State must establish both the amount of the victim’s loss and causation between the defendant’s acts and the victim’s loss. We have upheld the power of the. court to award property damage restitution against a possessor of stolen property. See State v. May, 166 Vt. 41, 45-46, 689 A.2d 1075, 1078-79 (1996).

A restitution order may not include amounts resulting from conduct on which defendant was acquitted, see State v. Knapp, 147 Vt. 56, 60, 509 A.2d 1010, 1012 (1986), or conduct that was not covered by defendant’s conviction. See State v. Stimpson, 151 Vt. 645, 646, 563 A.2d 1001, 1001-02 (1989) (mem.). In essence, defendant argues that these holdings should control because defendant was not convicted of possessing more than $500 worth of stolen property.

Although the restitution award exceeds the value limit for petit larceny, it relates directly to the conduct for which defendant was convicted. This fact distinguishes the current case from Knapp and Stimpson. Although there are decisions to the contrary, see Peralta v. State, 596 So. 2d 1220, 1221 (Fla. Dist. Ct. App. 1992); State v. Francois, 548 So. 2d 1284, 1287 (La. Ct. App. 1989), the better reasoned decisions from other states authorize full restitution in these circumstances, at least where there is no contrary plea agreement. See State v. Fancher, 818 P.2d 251, 253 (Ariz. Ct. App. 1991); Nix v. State, 925 S.W.2d 802, 803-04 (Ark. Ct. App. 1996); State v. Johnson, 711 P.2d 1295, 1298 (Haw. 1985); State v. Terpstra, 546 N.W.2d 280, 284 (Minn. 1996); People v. Meade, 600 N.Y.S.2d 353, 354 (App. Div. 1993); State v. Selland, 772 P.2d 534, 536 (Wash. Ct. App. 1989).

We hold that the court could award restitution beyond the amount contained in the misdemeanor charge associated with petit larceny of which defendant was convicted. Two considerations in particular induce us to follow these decisions. First, we find no suggestion in the statute that the Legislature intended to limit damages based on the dollar amount in the charge against a defendant. The statute is based on the principle of compensation to the victim, rather than punishment of the defendant. See 13 V.S.A.[*245] § 7043(b)(2) (restitution may include cash or installment payments “to compensate for damages to the victim’s property or person”); Fancher, 818 P.2d at 253; Nix, 925 S.W.2d at 804; Terpstra, 546 N.W.2d at 283.

Second, at sentencing, matters need be proven only by a preponderance of the evidence, see State v. Grenier, 158 Vt. 153, 159, 605 A.2d 853, 857 (1992); V.R.Cr.E 32(c)(4), and proceedings are less formal than in the criminal trial. Thus, it is not inconsistent that the State could not prove the higher value in the criminal trial, but could during sentencing. See Terpstra, 546 N.W.2d at 282; Meade, 600 N.Y.S.2d at 354.

Defendant’s final argument is that restitution of $4,000 is not supported by the evidence. The issue is whether the evidence established by a preponderance damages of $4,000 caused by defendant. Bennett testified that in 1994 he had both new and old pipe installed in his barn and that the total cost of the installation was $5,000. In addition, defendant introduced an exhibit indicating that the replacement cost of the stolen steel pipe, not including labor, was $3,264.08. In convicting defendant, the court inferred that defendant had knowledge the pipe was stolen and that, while the pipe was in defendant’s possession, “defendant cut the pipe from Bennett’s farm into short lengths, using [his employer’s] saw.” An employee from Rutland Scrap and Metal testified that defendant sold her 200 pounds of steel pipe, which consisted of new and old, marked and unmarked pieces. Given the totality of the evidence, the court could reasonably find by a preponderance of the evidence that defendant was responsible for losses to Mr. Bennett amounting to $4,000.

The district court had discretion in determining the amount of restitution, and only a reasonable certainty of estimated loss is required. See State v. May, 166 Vt. at 45, 689 A.2d at 1078. We conclude that the restitution order was supported by the evidence and was within the court’s discretion.

Affirmed.