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Dayton v. State (10/10/2003) ap-1902
Dayton v. State (10/10/2003) ap-1902
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEFFREY L. DAYTON, )
) Court of Appeals No.
A-8526
Appellant, )
Trial Court No. 4FA-S01-3433 CR
)
v. )
)
STATE OF ALASKA, ) O P I N
I O N
)
Appellee. )
[No. 1902 October 10, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Geoffry B. Wildridge, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Jeffrey OBryant, Assistant
District Attorney, Fairbanks, and Gregg D.
Renkes, Attorney General, Juneau, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Jeffrey L. Dayton challenges the restitution portion of
his sentence for third-degree assault. Dayton claims the court
erred when it ordered restitution of $2,416 for a computer and
$1,649.98 for software. As we discuss below, we direct the
superior court to reduce the award for the computer and software
to $3,500. Dayton also claims the court should have granted his
motion for reconsideration of the restitution order. We conclude
that Dayton has not shown that the superior court abused its
discretion when it denied reconsideration.
Background facts and proceedings
In October 2001, Abbie West occupied a cabin in Salcha
owned by Daytons brother, Eddie Dayton, a dog musher. West, also
a dog musher, was staying at the cabin with her dogs and was
caring for many of Eddie Daytons dogs.
On October 31, Dayton came to the cabin and demanded to
be let inside. He broke a window in the cabin. Although West
tried to keep the door closed, Dayton kicked in the door cutting
Wests hand.
Once inside, Dayton exhibited radical mood swings,
ranging from violence to caring. He yelled at West and started
removing her belongings from the cabin and throwing them in Wests
truck. Several items owned by West were damaged. Dayton
brandished a handgun he was carrying and asked West, Do you want
to mess with me? The troopers were called to the scene and
arrested Dayton.
The grand jury indicted Dayton on one count of first-
degree burglary and one count of third-degree assault.1 The
State filed an information charging one count of fourth-degree
assault and one count of fourth-degree criminal mischief.2
Ultimately, Dayton reached a charge bargain with the State;
Dayton would change his plea to third-degree assault, the State
would dismiss the remaining charges, and sentencing would be
open.
Before sentencing, the State filed a motion for
restitution to be ordered for Wests benefit. In support of the
motion, the State attached Wests list of property that Dayton
damaged, along with several documents supporting her financial
loss. At sentencing on September 25, 2001, Daytons attorney
asked the court to schedule a restitution hearing because he had
not had time to review the restitution request. Because West was
present at the sentencing, Superior Court Judge Charles R.
Pengilly suggested that West testify about her losses so that she
would not have to return later. Dayton agreed.
Under questioning by Judge Pengilly, West said that the
prices she submitted for her losses were accurate. West
acknowledged that the value of the computer hardware depreciated
between the time she bought it and when West destroyed it, but
she said she could have sold the system she had for $3,500.
Judge Pengilly tentatively suggested restitution in the amount of
$5,000 for all her losses, including the computer system, and
indicated that he would schedule a further hearing if Dayton
contested the amount and wished to present evidence.
Dayton requested a hearing which the court held on
December 2, 2002. West testified again and described the
financial losses she incurred, and the methodology she employed
to calculate her damages. Dayton cross-examined West and
presented testimony from an investigator from the Public
Defenders office.
When the court told Dayton that the State had presented
sufficient evidence to support the restitution award, Dayton
asked for yet another hearing so that he could present additional
evidence on the value of the damaged items. Judge Pengilly
denied that request and said that he would conclude the hearing.
Judge Pengilly found that West was a credible witness.
He found that the amount of the damages that West described was
uncontroverted. After deducting several items from the
restitution request, Judge Pengilly entered a judgment for
restitution in the amount of $6,592.82.
Dayton moved for reconsideration of the restitution
order. Dayton once more asked for another hearing to present
additional evidence, including information he had obtained on the
price of a computer. Dayton renewed his argument that there was
no proof that West had suffered any financial loss regarding the
computer software and claimed the value of the computer was
unverified. The superior court denied Daytons motion through
inaction.3
Restitution for the damaged computer
Dayton attacks the portion of the restitution order
attributable to Wests computer loss. First, Dayton argues
generally that the evidence does not support the value attributed
to the computer. But West testified at the two hearings and
described how she valued her computer equipment. She explained
that she went to the OfficeMax store and described her damaged
computer system to a salesman. The salesman provided her with a
written quote that included, among other things, the price for
the computer and the software that was installed on the damaged
machine. West provided this writing to the court. The court
found Wests testimony credible.
Dayton argues that the superior courts restitution
order is inflated because the court awarded restitution for Wests
broken computer based on the cost of a new, improved
[replacement] computer. But the record refutes this claim. The
State asked for computer hardware restitution in the amount of
$2,416. (West explained that the purchase prices of the various
items of equipment were reconstructed by a computer salesman at
OfficeMax.)
But even though Judge Pengilly did not order Dayton to
buy West a new, improved computer, the restitution order does
pose a problem. Judge Pengilly adopted the States restitution
figure of $2,416 for the computer hardware, even though West
explained that this was the original cost of the equipment, and
that the contemporaneous value of the equipment was less.
In her testimony, West acknowledged that her system was
worth less than its original purchase price because (1) her
system was one year old when Dayton destroyed it, and (2) Intel
had just issued its next generation chip (the Pentium IV). Even
so, West declared that her system (hardware and software
combined) could have been sold for at least $3,500 because the
system was in perfect working order when it was destroyed.
Judge Pengilly awarded combined restitution of $4,066
for Wests computer hardware and software i.e., some $550 more
than Wests estimate of the systems contemporaneous value.
Because Judge Pengilly awarded restitution for the full original
purchase price of the hardware and software, without discount for
the age of the system, we conclude that the record fails to
support this award. We therefore direct the superior court to
reduce the combined award for hardware and software to $3,500.
Dayton also complains that he did not have any
meaningful chance to contest the values testified to by West and
did not have sufficient notice of her claim. But the State filed
a motion for restitution before sentencing that listed the items
and the price for each that formed the basis for the restitution
request. The motion included a general description of each item
along with supporting documentation that West provided the State.
West testified at sentencing and Dayton had the opportunity to
ask her about the property during cross-examination. Several
weeks later, the court held another restitution hearing at
Daytons request, and West again testified and was available for
cross-examination. We reject Daytons claim that he did not have
a meaningful chance to contest the values proposed by the State.
Finally, Dayton argues that the restitution order
should be vacated because West had unclean hands. Dayton makes
this claim because West took all of the broken computer
equipment, except for the monitor, to the dump before Daytons
investigator could examine the equipment to assess its value.
But after West testified at the first restitution
hearing (on the day of Daytons sentencing), Judge Pengilly told
her that she was now free to dispose of [the] property [in] any
way [she saw] fit. Daytons attorney did not object to the courts
comment. In particular, Daytons attorney did not inform Judge
Pengilly that West should be ordered to hold onto the computer
equipment because the defense intended to pursue an independent
appraisal of the replacement value of the equipment. Thus, the
record fails to show even a colorable claim of unclean hands.
Restitution for software
Dayton next argues that the court should not have
ordered restitution for software that was installed on Wests
damaged computer. Dayton argues that restitution was not
warranted because there is no evidence that West permanently lost
the software discs used to install the software on the damaged
computer. Dayton argues that if West finds the discs, she could
install them on her new computer.
Dayton advances a view of the record in a light most
favorable to his argument. The final hearing on restitution
occurred over a year after Daytons crime, and West had been
unable to find the software. She testified that in reaction to
Daytons crime, she moved away from the cabin almost immediately.
By the time of the restitution hearing, she had not located the
discs.
This evidence provided the superior court with a
sufficient basis to conclude that West had to obtain replacement
software to make her whole. Thus, the superior court properly
ordered Dayton to make restitution for the software.
Daytons motion for reconsideration
Dayton filed a motion for reconsideration. The
superior court did not act on Daytons motion, and, by operation
of law, the motion was deemed denied.4
In the motion, Dayton again asserted that there was no
proof that the software was lost and renewed his claim that the
cost of the computer equipment was not verified. In the
alternative, Dayton asked for an additional hearing to present
evidence on the cost of an alternative computer.
As we discussed above, the superior court properly
ordered restitution for the computer and software. Furthermore,
Dayton had ample notice of the hearings during which the court
considered restitution. The court was not required to reconsider
its rulings and schedule a third hearing on restitution so that
Dayton could present evidence on the value of an alternative
computer.
From our review of the record, we conclude that the
superior court did not abuse its discretion by declining to act
on Daytons motion for reconsideration.5
Conclusion
We direct the superior court to amend the restitution
order to reflect a $3,500 value for the computer and software.
As amended, the restitution order of the superior court is
AFFIRMED.
_______________________________
1 AS 11.46.300(a) and AS 11.41.220(a), respectively.
2 AS 11.41.230(a) and AS 11.46.484(a), respectively.
3 See Alaska R. Crim. P. 42(k)(4).
4 See Alaska R. Crim. P. 42(k)(4).
5 See Neal & Co. v. Association of Village Council
Presidents Regional Housing Authority, 895 P.2d 497, 506 (Alaska
1995).
