COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Beales
Argued at Chesapeake, Virginia
O’DANE GREG MAYE
MEMORANDUM OPINION * BY
v. Record No. 2590-09-1 JUDGE RANDOLPH A. BEALES
FEBRUARY 8, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Kimberly Enderson Hensley (Office of the Public Defender, on
brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
O’Dane Greg Maye (appellant) was convicted of breaking and entering (under Code
§ 18.2-91), shooting inside an occupied dwelling (under Code § 18.2-279), two counts of
malicious wounding (under Code § 18.2-51), and two counts of use of a firearm in the
commission of a felony (under Code § 18.2-53.1). 1 The sole issue on appeal is whether the trial
court abused its discretion when it ordered restitution. Because the Supreme Court’s decision in
Howell v. Commonwealth, 274 Va. 737, 652 S.E.2d 107 (2007), is controlling on this issue, we
conclude that the trial court abused its discretion when it ordered the part of the restitution
related to an “indirect” financial loss suffered by one of appellant’s victims. Therefore, we
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant pled guilty to these offenses, conditioned on his right to appeal the denial of
his pre-trial motion to admit expert psychiatric testimony and evidence concerning his mental
state at the time of these offenses. An appeal was not granted on that issue, and, therefore, the
denial of the pre-trial motion is not before this Court on appeal.
reverse the trial court’s sentencing order only as to the amount of restitution it imposed, and we
remand the case to the trial court to recalculate restitution consistent with the Supreme Court’s
opinion in Howell.
I. BACKGROUND
On the night of April 26, 2009, appellant entered a dormitory on the campus of Hampton
University and shot the dormitory’s night manager (the victim), severely injuring him. 2 The
victim spent three days in the intensive care unit of the hospital after the shooting. He was
completely bedridden for a period of time after his release from the hospital, which required that
he stay with a relative who could help provide care for him rather than return to his own home.
In his victim impact statement, which was admitted into evidence at appellant’s
sentencing hearing, the victim reported a total loss of $62,615 because of appellant’s criminal
conduct on April 26, 2009. Of this total, $215 was listed as “direct” economic loss, $60,000 was
listed as “indirect” economic loss, and $2,400 was listed as lost wages. Explaining the “indirect”
economic loss, the victim testified that a pipe in his home burst while he was convalescing at his
cousin’s home. As a result, “a flood of water” damaged his house and the possessions inside. 3
“Had I been home,” he explained, “I could have caught the problem, and prevented the damage”
that occurred after the pipe burst.
The trial court sentenced appellant to a total of 68 years of imprisonment – with 54 years
suspended. Moreover, the trial court ordered, inter alia, that appellant pay $62,615 in restitution.
The trial court actually referred to the $60,000 loss that the victim sustained from the water
damage in his home as an “indirect loss.”
2
Appellant also shot and injured another person while inside the dormitory.
3
Insurance covered an unspecified amount of the damage, but the victim testified that he
was “out of approximately $60,000.00.”
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II. ANALYSIS
Appellant argues that the trial court erred when it ordered restitution for the victim’s
$60,000 “indirect loss” – a loss that occurred because a water pipe burst inside his home while he
was convalescing at his cousin’s home. As we are an appellate court reviewing the trial court’s
sentencing decision under an abuse of discretion standard, Martin v. Commonwealth, 274 Va.
733, 735, 652 S.E.2d 109, 111 (2007), this Court must address whether the trial court’s
discretion in this case was “‘guided by erroneous legal conclusions,’” Porter v. Commonwealth,
276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100
(1996)).
When a trial court suspends a defendant’s sentence or orders probation, the court has
authority to order that the defendant “make at least partial restitution” to an “aggrieved party or
parties for damages or loss caused by” by the offense or offenses for which the defendant was
convicted. Code §§ 19.2-303 and 19.2-305(B); see also Code § 19.2-305.1(A). According to the
Supreme Court’s opinion in Howell, these sentencing statutes have “limited the scope of
restitution a court may order to payments for ‘damages or losses caused by the offense.’”
Howell, 274 Va. at 740, 652 S.E.2d at 108. Given this statutory limitation on the scope of
restitution, the Supreme Court has held that restitution is proper only when a victim’s financial
loss is actually “caused” by the defendant’s offense – not when the financial loss is only
“related” to the offense. Id. at 741, 652 S.E.2d at 109.
In Howell, the defendant burglarized the victims’ business. After the burglary, the
owners “felt forced” to install a security system at the business because one of the owners no
longer felt comfortable being alone in the building. Id. at 740, 652 S.E.2d at 108. The cost of
this security system was included in the amount of restitution ordered by the trial court. Id. at
739, 652 S.E.2d at 108. This Court affirmed the restitution order, holding that it “was reasonably
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related to Howell’s criminal activities,” but the Supreme Court subsequently reversed the
restitution order, holding that “the installation of a security system, while related to Howell’s
burglary, was not caused by the offense as required by Code §§ 19.2-303, -305(B), -305.1(A).”
Id. at 739, 741, 652 S.E.2d at 108, 109. The Supreme Court explained that the “attenuation” was
“too great” to warrant ordering restitution for the cost of installing the security system. Id. at
741, 652 S.E.2d at 109.
Although the Supreme Court explained in Howell that “[c]osts that result only indirectly
from the offense” are “inappropriate for a restitution payment,” id. (emphasis added), the
Commonwealth here interprets Howell to permit restitution when the defendant’s criminal
conduct is a cause of the victim’s financial loss, but not necessarily a direct cause. The
Commonwealth notes that, at the conclusion of its analysis in Howell, the Supreme Court
determined that restitution was improper because the “attenuation” between Howell’s criminal
conduct and the victims’ financial loss was “too great.” Id. The Commonwealth contends that
an order of restitution can be proper, even when the defendant’s criminal conduct is not a direct
cause of the victim’s financial loss, provided that the attenuation is not “too great.”
Contrary to the Commonwealth’s position, however, the Supreme Court’s opinion in
Howell provides that, in order for a trial court to order restitution against a defendant, the
victim’s financial loss must be “caused by the offense,” meaning a loss directly caused by the
offense. The Supreme Court’s discussion of pertinent decisions from the United States Court of
Appeals for the Fourth Circuit – which, the Supreme Court expressly noted, involved “a federal
[restitution] statute similar to ours” in Virginia, id. at 740, 652 S.E.2d at 108 – makes this point
clear.
The Supreme Court quoted as instructive the language in a Fourth Circuit opinion, United
States v. McMichael, 699 F.2d 193 (4th Cir. 1983), that interpreted the federal restitution statute
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to “limit the damages or loss which the defendant can be ordered to repay to ‘those which were
directly caused by the offense.’” Howell, 274 Va. at 740-41, 652 S.E.2d at 108 (emphasis added)
(quoting McMichael, 699 F.2d at 195). The Supreme Court also noted the Fourth Circuit’s
opinion on restitution in United States v. Vaughn, 636 F.2d 921 (4th Cir. 1980), which
interpreted the same federal restitution statute as prohibiting courts from ordering
“‘reimbursement . . . [for] costs [that] result only indirectly from the offense.’” Howell, 274 Va.
at 741, 652 S.E.2d at 109 (emphasis added) (quoting Vaughn, 636 F.2d at 923).
Discussing these opinions from the Fourth Circuit, the Supreme Court stated, “Costs that
result only indirectly from the offense, that are a step removed from the defendant’s conduct, are
too remote and are inappropriate for a restitution payment.” Id. (emphasis added). The
Supreme Court then reinforced this principle by considering two Kansas state appellate court
opinions that also addressed the limitations of restitution orders.
The Supreme Court in Howell noted the Kansas Supreme Court’s holding in State v.
Beechum, 833 P.2d 988 (Kan. 1992), that “[n]ot all tangential costs incurred as a result of a
crime should be subject to restitution.’” Howell, 274 Va. at 741, 652 S.E.2d at 109 (emphasis
added) (quoting Beechum, 833 P.2d at 994). The Supreme Court then discussed State v.
Chambers, 138 P.3d 405 (Kan. Ct. App. 2006), in which the Kansas Court of Appeals applied the
holding in Beechum to a set of facts very similar to those in Howell. Discussing Chambers, the
Supreme Court explained in Howell:
The trial court [in Chambers] had ordered the defendant to pay for
the installation of a security system in the building that he
burglarized, finding that it was “‘a direct causal effect’” of the
crime. [Chambers, 138 P.3d] at 414. The Kansas Court of
Appeals reversed this portion of the restitution order, explaining
that “the purchase of the security system was prompted by concern
that [defendant], a neighbor of the victim, would reoffend, but this
purchase was an example of ‘tangential costs incurred as a result of
a crime,’ not a cost caused by the crime.” Id. at 415.
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Howell, 274 Va. at 741, 652 S.E.2d at 109. Thus, as the Supreme Court noted in Howell, the
Kansas Court of Appeals reversed the lower court’s finding of a “direct causal effect” between
Chambers’ criminal conduct and the victim’s financial loss – and concluded instead that, since
the victim’s financial loss was a “tangential” cost, the trial court could not order restitution for
that loss because it was not a “cost caused by the crime.”
In light of these federal and state decisions, the Supreme Court of Virginia held as a
matter of law in Howell that restitution does not include financial loss that results indirectly from
the defendant’s criminal conduct because that loss is not “caused by the offense” under
Virginia’s restitution statutes, Code §§ 19.2-303 and 19.2-305(B). Consequently, when a
victim’s financial loss is not directly caused by the defendant’s criminal conduct, the loss is “a
step removed from the defendant’s conduct” – and, accordingly, the attenuation between the
victim’s financial loss and the defendant’s conduct is “too great” to permit restitution. Howell,
274 Va. at 741, 652 S.E.2d at 109.
Because this Court, of course, is bound by the decisions of the Supreme Court of
Virginia, we must now apply the Supreme Court’s decision in Howell to the facts of this case.
Here, the trial court included $60,000 in its restitution order – the loss to the victim from
the damage resulting from the bursting of a water pipe inside his home that the trial court
referred to as an “indirect loss.” 4 The trial court clearly considered a victim’s “indirect loss” to
be within the proper scope of restitution. However, as discussed supra, costs to a victim “that
result only indirectly from the offense” are, pursuant to the Supreme Court’s decision in Howell,
4
A determination concerning causation is a factual finding, which is binding on this
Court on appeal unless plainly wrong. Lee County School Bd. v. Miller, 38 Va. App. 253, 260,
563 S.E.2d 374, 377 (2002); see Robinson v. Commonwealth, 274 Va. 45, 53, 645 S.E.2d 470,
474 (2007). In this case, the trial court’s reference to the $60,000 as an “indirect loss” was
undisputed – the victim himself listed this amount as an “indirect” financial loss in the “Financial
Loss” section of his victim impact statement, and the Commonwealth has never argued that
appellant’s criminal conduct directly caused the damages that resulted from the pipe that burst.
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“inappropriate for a restitution payment.” Id. Thus, the trial court here was guided by an
erroneous legal conclusion that “indirect loss” could be included in its restitution calculation.
Therefore, based on Howell, the trial court’s order of restitution that included $60,000 of
“indirect loss” was an abuse of discretion. See Koon, 518 U.S. at 100; Porter, 276 Va. at 260,
661 S.E.2d at 445.
III. CONCLUSION
Pursuant to the Supreme Court’s decision in Howell, we conclude that the trial court
abused its discretion when it ordered restitution for an “indirect” financial loss to one of
appellant’s victims. Accordingly, for the foregoing reasons, we reverse the portion of the
sentencing order that required appellant to pay restitution for this “indirect” financial loss of the
water damage to the victim’s home while he was recuperating from his gunshot injuries, and we
remand the case to the trial court for it to make the appropriate corrections to the amount of
restitution ordered in appellant’s sentencing order – consistent with the Supreme Court’s
decision in Howell.
Reversed and remanded.
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