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THE COURT OF APPEALS OF THE STATE OF ALASKA
DON NOFFSINGER, )
)
Appellant, ) Court of Appeals No. A-4409
) Trial Court No. 4FA-S91-3220CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1294 - April 23, 1993]
______________________________)
Appeal from the Superior Court, Fourth
Judicial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: Susan M. Carney, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Daniel R. Cooper, Jr., Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Don P. Noffsinger pled no contest to and was convicted
of a single count of second-degree theft, in violation of AS
11.46.130(a)(1). Superior Court Judge Mary E. Greene suspended
the imposition of Noffsinger's sentence on condition that he
serve ninety days in jail, pay $8,300 restitution, and complete
five years of probation. On appeal, Noffsinger challenges the
restitution order on several grounds. We affirm.
Noffsinger's conviction stemmed from his theft of gold
from several of the sluice boxes at a gold mine in the Deadwood
Creek area, near Central. During the theft, Noffsinger was
accompanied by another man, Jeffrey R. Hunt. When the Alaska
State Troopers arrested Noffsinger and Hunt several days after
the theft, they recovered approximately four ounces of stolen
gold. In interviews with the troopers and, subsequently, with
the probation officer who wrote the presentence report,
Noffsinger alleged that the gold recovered upon his arrest
constituted approximately half of the total gold stolen. Relying
on an apparently undisputed value of $267.50 per ounce,
Noffsinger estimated that all of the stolen gold was worth
approximately $2,000.
The owners of the mine disputed Noffsinger's estimate.
In testimony at the sentencing hearing, George W. Seuffert, Jr.,
estimated that a total of about thirty-five ounces of gold had
been taken by Noffsinger and Hunt. Seuffert, a geological
engineer and part owner of the mine where the theft occurred, had
five years' experience working the mine's sluice boxes and
described himself as "fairly good at reading" them.
Seuffert testified that Noffsinger and Hunt took the
gold that had accumulated on "the top carpets on the side
[sluice] boxes, and those are by far the richest, particularly
one on the right side facing down the sluice." According to
Seuffert, on the evening before the theft, he had observed a
substantial amount of gold accumulating in the sluice boxes,
which had been operating for about a week without being cleaned
out. On the day after the theft, the owners of the mine cleaned
the remaining gold out of all of the mine's sluice boxes; their
efforts yielded a total of approximately sixty-five ounces of
gold. Based on his experience with the mine's operations, his
pre-theft observations, and the quantity of gold remaining after
the theft, Seuffert estimated that the thieves had stolen thirty-
five ounces of gold.
Noffsinger did not testify at the sentencing hearing,
relying instead on his claims to the troopers and to the author
of the presentence report that the four ounces of gold seized by
the troopers represented about half of the total amount stolen.
Noffsinger argued at the sentencing hearing that these claims
were more credible than Seuffert's speculative extrapolation.
Judge Greene, however, found Seuffert's estimate
credible and concluded that "it's more likely true than not true
that right around 35 ounces of gold were taken." Deducting the
four ounces of gold recovered by the troopers, and multiplying
the remainder by $267.50, Judge Greene calculated the value of
the unrecovered gold to be approximately $8,300. The judge
ordered Noffsinger to pay the full amount of restitution, noting
that he would be jointly and severally liable with his
accomplice, Hunt (who had absconded and whose whereabouts were
unknown).
On appeal, Noffsinger first claims that Judge Greene
did not properly determine the amount of restitution. He
alleges, initially, that the judge failed to make an adequate
inquiry into his ability to pay. See Ratliff v. State, 798 P.2d
1288, 1293 (Alaska App. 1990). However, the presentence report
contained a full account of Noffsinger's employment history and
summarized his financial condition at the time of the offense.
Although Noffsinger actively disputed the correct amount of
restitution, at no point did he raise any question concerning his
ability to pay; in fact, Noffsinger affirmatively urged the court
to impose restitution in the amount he estimated to be correct.
There is nothing in the record indicating that
Noffsinger cannot realistically be expected to pay the $8,300 in
restitution over the course of his five-year probationary term.
Given the totality of the circumstances, we conclude that further
inquiry into Noffsinger's ability to pay was unnecessary.
Noffsinger further alleges that there was insufficient
evidence to support the court's finding that thirty-five ounces
of gold were taken in the theft. An award of restitution must be
supported by substantial evidence. Harris v. State, 678 P.2d
397, 408 (Alaska App. 1984), rev'd on other grounds, Stephan v.
State, 711 P.2d 1156 (Alaska 1985). If uncertainty exists, the
appropriate amount for restitution must be proved by a
preponderance of the evidence. See Brakes v. State, 796 P.2d
1368, 1372 n.5 (Alaska App. 1990). When the accused, on appeal,
challenges the sufficiency of the evidence as to restitution,
this court does not pass on issues of credibility, which remain
within the sole province of the sentencing court. See Anthony v.
State, 521 P.2d 486, 492 (Alaska 1974). Instead, as in other
situations involving claims of insufficient evidence, we construe
the record in the light most favorable to the state and determine
whether a reasonable fact-finder could conclude that the disputed
amount of restitution was established by a preponderance of the
evidence.
Noffsinger argues that Seuffert's extrapolation of the
amount of gold stolen was too speculative to rely on. Noffsinger
points out that Seuffert never established precisely how he
arrived at his estimate. Yet Noffsinger failed to object to
Seuffert's testimony on the ground that it was speculative -- or,
for that matter, on any other ground. Noffsinger also failed to
request that Seuffert's expertise be established with greater
particularity. Despite the opportunity for cross-examination,
Noffsinger failed to question Seuffert about the precise manner
in which he calculated that thirty-five ounces of gold had been
taken.
From the current record, it appears that Seuffert's
testimony was based not on speculation but rather on a
combination of his extensive experience at the mine and his
personal observations, both pre- and post-theft. Judge Greene
was not clearly erroneous in relying on this testimony as a basis
for the restitution award.
Noffsinger next challenges the sentencing court's
decision to hold him jointly and severally liable for the full
amount of restitution. He relies on AS 09.17.080(d), a recently
enacted provision of Alaska's Code of Civil Procedure that
precludes joint and several liability in civil tort actions and
requires, instead, that judgment in such cases be entered
"against each party liable on the basis of several liability in
accordance with that party's percentage of fault." This
provision, however, has no direct bearing in the criminal
context, where the court's authority to require payment of
restitution exists independently of its authority to order
payment of damages in civil matters. See AS 12.55.045(b).
Noffsinger nevertheless proposes that this court
should, as a matter of sound policy, extend to the criminal
context the statutory prohibition against joint and several
liability for civil cases. As the sole basis for this proposal,
Noffsinger cites a recent law review article on restitution in
criminal cases that comments, in passing: "It would seem . . .
certain that criminal defendants are entitled to the benefits of
the `tort reform' package enacted as a result of Alaska's 1988
election, including the end of routine joint and several
liability orders in cases involving codefendants." C.R.
Pengilly, Restitution, Retribution, and the Constitution, 7
Alaska L. Rev. 333, 345 (1990) (footnote omitted). In advancing
this proposition, however, the article Noffsinger relies on is as
conclusory as Noffsinger's own argument.
The legislature presumably enacted AS 09.17.080(d) to
counter what it saw as the potential inequity of applying joint
and several liability in the tort context; this inequity consists
in large measure of the fact that, among several independently
negligent parties whose conduct combines to cause an injury, the
party who is capable of paying -- although only partially
responsible -- will end up paying the full award.
The scope of such inequity diminishes considerably in
the criminal context. Restitution awards in criminal cases are
expressly limited by statute to actual damages. See AS
12.55.045. Furthermore, unlike the civil context, restitution in
criminal cases serves multiple purposes: in addition to
compensating the victim, it can further the rehabilitation of the
defendant, deter the defendant and others, and express the
community's condemnation of the defendant's crime.
Finally, and perhaps most significantly, a restitution
award in a criminal case does not represent compensation for harm
resulting from an act of ordinary negligence; rather, it must be
predicated on an act committed with a culpable mental state
falling so far beyond the pale of ordinary negligence as to merit
criminal sanction.
We need not decide whether joint and several liability
for restitution should be permitted in all criminal cases or when
such liability might be impermissible. Here, Noffsinger
intentionally stole the property of another. Although Noffsinger
was accompanied by a confederate, in no realistic sense did
Noffsinger's acts cause only a limited portion of the loss, and
in no realistic sense was he only partially at fault. Any
attempt to divine Noffsinger's "percentage of fault" in these
circumstances would be a feckless exercise that would only serve
to reward Noffsinger for electing to commit his crime in the
company of an accomplice.
Hunt, Noffsinger's accomplice, has apparently absconded
and may remain unavailable as a source of restitution. The
resulting policy question, as we see it, is this: as between
Noffsinger and his victim, who should bear the risk of Hunt's
continued unavailability to make restitution? In context, we
believe the answer self-evident, and we find no abuse of
discretion in the trial court's decision to hold Noffsinger
jointly and severally liable for the full amount of restitution.
Noffsinger lastly argues that Judge Greene erred in the
course of her sentencing remarks by warning that if Noffsinger
did not make restitution as ordered, "I'll guarantee that . . . I
won't set your [suspended imposition of sentence] aside -- it
won't set the conviction aside." Noffsinger takes issue with
this comment, noting that only willful failure to pay restitution
can justify revoking probation and imposing sentence on a
defendant who is required to pay restitution as a condition of a
suspended imposition of sentence. See Lominac v. Anchorage, 658
P.2d 792, 794 (Alaska App. 1983).
We do not, as does Noffsinger, interpret Judge Greene's
remarks as threatening action regardless of Noffsinger's ability
to pay. Moreover, the action threatened by Judge Greene appears
at most to be denial of a set-aside order under AS 12.55.085(e),
not revocation of probation and imposition of sentence, as was
the case in Lominac.
This court has never had occasion to consider whether
non-willful failure to pay restitution might constitute good
cause for denial of a set-aside. Apart from citing Lominac,
which is inapposite, Noffsinger has provided us with no
meaningful briefing on this subject. If Noffsinger successfully
completes his probation but is unable to make restitution despite
good faith efforts, and if, as a consequence, Judge Greene
declines to set aside his conviction, Noffsinger will have the
right to an appeal, and the issue will be fully ripe. As the
cases stands now, however, we find Noffsinger's claim premature
and far too speculative to warrant a decision.
The sentence is AFFIRMED.
