FILED
Sep 19 2017, 8:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Racquel Postiglione, September 19, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1607-CR-1662
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1504-F5-14728
Pyle, Judge.
Statement of the Case
[1] Racquel Postiglione (“Postiglione”) appeals the trial court’s restitution order
entered following her conviction for Class A misdemeanor battery resulting in
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bodily injury.1 Postiglione argues that the trial court abused its discretion by
ordering her to pay $18,451.33 in restitution to the victim, contending that she
did not cause the victim’s injuries for which restitution was ordered.
Concluding that, in light of the facts and circumstances of this case, there was
evidence and reasonable inferences therefrom to show that the victim incurred
medical costs as a result of Postiglione’s crime, we find no abuse of discretion
and affirm the trial court’s order of restitution.
[2] We affirm.
Issue
Whether the trial court abused its discretion by ordering
Postiglione to pay $18,451.33 in restitution to the victim.
Facts
[3] Around 1:00 a.m. on April 24, 2015, Postiglione and three male friends,
including her boyfriend, Christopher Shafer (“Christopher”),2 and his brother,
Michael Shafer (“Michael”), went into the Alley Cat bar (“the bar”) in Broad
Ripple. Postiglione and her companions had already consumed varying levels
of alcohol prior to arriving at the bar. The bartender, Matthew Marcuccilli
(“Marcuccilli”), noticed Postiglione and the others as they walked in the bar
because they were “very loud” and “clearly intoxicated.” (Tr. Vol. 2 at 13).
Marcuccilli “immediately decided not to serve them” any alcohol and instead
1
IND. CODE § 35-42-2-1.
2
During the trial, some of the witnesses referred to Christopher as Nicholas or Nick.
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served them water. (Tr. Vol. 2 at 13). Marcuccilli considered Postiglione to be
“the rudest” of the group as she was “screaming profanities” and “[s]lurs” and
“bothering” customers. (Tr. Vol. 2 at 14). After Postiglione and the others
caused multiple “confrontations” and “squabbles” with other customers,
Marcuccilli asked them to leave the bar. (Tr. Vol. 2 at 18). They, however,
“kept sneaking back in” the bar, and Marcuccilli asked them to leave another
three times. (Tr. Vol. 2 at 20).
[4] Eventually, Marcuccilli, with a small, wooden bat in hand, hit the bat on the
bar and threatened to call the police if Postiglione and her friends did not
permanently leave the bar. Marcuccilli signaled to Joe Kelly (“Kelly”), who
worked across the street from the bar and was a regular customer, that he
needed help in getting Postiglione and her friends to leave the bar. Marcuccilli,
with Kelly behind him, walked Postiglione and her friends to the door. As
Postiglione walked out, she yelled, “I’ll kick that white bitch’s ass[,]”
referencing another female customer. (Tr. Vol. 2 at 52). Once Postiglione and
the others were out the door and had walked down the alley, Marcuccilli
returned to the bar to work, and Kelly stood in the doorway for several minutes.
[5] Shortly thereafter, Michael came back to the door of the bar, and Kelly, who
was still in the doorway, directed him back into the alley. Kelly walked
Michael down the alley near a dumpster, and Michael “took off running”
towards his two male companions. (Tr. Vol. 2 at 77). Postiglione then came
out from behind the dumpster, “got in [Kelly’s] face[,]” and started
“screaming” at him. (Tr. Vol. 2 at 77). Postiglione grabbed Kelly’s beard with
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both hands, put her feet on his thighs, and tried to “rip [his] beard out.” (Tr.
Vol. 2 at 78). Kelly, who felt “extreme[] pain[],” grabbed the top of his beard so
Postiglione would not rip it out. (Tr. Vol. 2 at 78). In an attempt to get
Postiglione to let go of his beard, he grabbed, but did not pull, Postiglione’s hair
and threatened to “rip her hair out” if she did not let go of his beard. (Tr. Vol. 2
at 78). Michael and Christopher came up and tried to pull Postiglione and
Kelly apart and then repeatedly punched Kelly. Kelly did not punch back or hit
anyone. As Postiglione was “latched onto” Kelly and the others were pulling
on them, Kelly “lost his balance[,]” fell to the ground, and broke his leg. (Tr.
Vol. 2 at 101). As Kelly was on the ground, Christopher kicked him in the face
and Michael “stomped” multiple times on Kelly’s ankle, causing it to break.
(Tr. Vol. 2 at 79). Postiglione and the others laughed at him and told him that
he was going to jail.
[6] Eventually, an employee of the bar, Maurice James (“James”), arrived in the
alley and pulled Michael off Kelly. James heard Postiglione yelling, “trailer
trash” and thought he saw her “kicking [Kelly] in his legs” while he was on the
ground. (Tr. Vol. 2 at 140-41). Kelly was unable to walk and struggled to sit up
against a fence. As he did so, he felt that “both places on [his] leg were
definitely hurting very bad[ly].” (Tr. Vol. 2 at 79). Thereafter, the police
arrived and arrested Postiglione and Christopher but not Michael because he
had run away. Postiglione was “verbally combative” with the police and gave
“smart aleck remarks.” (Tr. Vol. 2 at 166). Kelly was taken to the hospital. He
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suffered a broken leg, a broken ankle, and abrasions on his face. Kelly later had
a surgery to insert two screws in his ankle.
[7] The State jointly charged Postiglione, Michael, and Christopher with Level 5
felony battery resulting in serious bodily injury. Specifically, the State alleged
that the serious bodily injury was a broken bone in Kelly’s left leg.
[8] In May 2016, the trial court held a bench trial, in which Postiglione and her co-
defendants were tried jointly. The State presented testimony from Marcuccilli
and Kelly regarding the facts above. It also presented testimony from other bar
employees and the responding police officers.
[9] Postiglione testified on her own behalf. She acknowledged that she had
verbally argued with another customer and that she had used “combative
speech.” (Tr. Vol. 2 at 240). She admitted that she had been asked to leave the
bar but denied that she had been escorted out of the bar. Postiglione also
denied that she had hit or kicked Kelly’s leg. Her defense at trial was that Kelly
was the initial aggressor and that she had acted in self-defense. Specifically, she
testified that Kelly had yelled “slurs” at her from down the alley and that she
had yelled back at him. (Tr. Vol. 2 at 243). She also testified that, as Kelly had
gotten closer to her, he had “spit at [her], kind of like a sprinkler[.]” (Tr. Vol. 2
at 243). Postiglione testified that Kelly had spit at her three or four times “to
get a rise out of [her]” and “to provoke” her. (Tr. Vol. 2 at 243-44).
Additionally, she testified that Kelly had hit her jaw with an “open fist” and
opined that Kelly had “knowingly just hit [her] enough to knock [her] off [her]
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feet a bit.” (Tr. Vol. 2 at 244). Postiglione testified that Kelly had also
delivered “a blow to the back of [her] head[.]” (Tr. Vol. 2 at 244). Postiglione’s
counsel argued that Kelly was mad at Postiglione because she was an outsider
at the bar and had gotten into an argument with a regular customer and that
Postiglione was not the initial aggressor.3
[10] Before entering its verdict, the trial judge stated that “in listening to this case, . .
. it. . . [was] pretty clear . . . that this [wa]sn’t one which you c[ould] find a
whole lot of nuance or come up with some Solomonic resolution as to what
[had] really happened.” (Tr. Vol. 3 at 72). He added that it had “been a while
since [he had] heard a court trial in which one side or the other [had] clearly
lied to the Court.” (Tr. Vol. 3 at 72). The trial judge further stated that “out of
the people that [had] testified, [he] [had] believed [Postiglione] the least.” (Tr.
Vol. 3 at 72). The judge elaborated that it had “been a while since [he’d] had
somebody come in and try to snow the Court as much as they ha[d] with extra
verbiage and not answering things, and put[ting] things a particular way.” (Tr.
Vol. 3 at 72). The trial judge pointed out that the existence of Kelly’s injuries
was “undisputed” but that the dispute rested in “[h]ow they [had] occurred[.]”
(Tr. Vol. 3 at 72). The judge stated that it was clear that Postiglione and Kelly
were “engaged in mutual combat” but stated that she was not the person who
had “inflicted the blows to the extent of the damage[.]” (Tr. Vol. 3 at 75). The
3
Michael’s defense was also self-defense. He testified that he did not want to fight Kelly and that he had
engaged Kelly because he was trying to protect Postiglione from Kelly, who—according to Michael’s
testimony—had grabbed her and had thrown her on the ground. Michael also denied that he had stomped
on Kelly’s ankle. Christopher’s defense was that he was not involved in the situation between Postiglione
and Kelly.
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trial court found Postiglione guilty of the lesser-included offense of Class A
misdemeanor battery. The judge stated that Michael and Christopher were
“defending the person with the mouth” and found them not guilty. (Tr. Vol. 3
at 74-75).
[11] During the sentencing hearing, the parties disagreed about how restitution
should be handled. The State introduced: (1) State’s Sentencing Exhibit 1, a
restitution statement from the Indiana Criminal Justice Institute to show that it
had paid $15,000.00 from the Violent Crime Compensation Fund toward
Kelly’s medical bills; and (2) State’s Sentencing Exhibit 2, a list of Kelly’s
medical bills totaling $33,451.33. State’s Exhibit 2 included medical bills, from
varied dates, for the following: ambulance services; radiology services;
crutches; anesthesia services; and hospital services. Kelly testified that he had
had one surgery for his injuries and that it had taken him approximately six
months to recover from his injuries.
[12] Postiglione’s counsel argued that Postiglione should not have to pay the
restitution requested because Kelly’s medical bills were a result of his broken
leg, and Postiglione “did not cause the broken leg.” (Tr. Vol. 3 at 93). Her
counsel also argued that the trial court, by convicting Postiglione of the lesser
included misdemeanor battery, had determined that she was not “responsible
for the broken leg.” (Tr. Vol. 3 at 93). Postiglione’s counsel, however,
acknowledged that Kelly could seek restitution in civil court.
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[13] The State responded the restitution was proper because Postiglione was found
guilty of battery causing bodily injury to Kelly. Citing to Lowden v. State, 51
N.E.3d 1220 (Ind. Ct. App. 2016), trans. denied, the State argued that the injury
to Kelly did not have to be foreseeable and that, because Postiglione was found
guilty of battery, she was responsible for any injury that resulted from her
crime.4
[14] The trial court acknowledged the State had originally charged Postiglione with
battery resulting in serious bodily injury and that the court had found her guilty
of battery resulting in bodily injury. At the end of the hearing, the trial court
took the matter of restitution under advisement. The trial court then imposed a
one (1) year sentence suspended to non-reporting probation, and it ordered
Postiglione to complete 100 hours of community service.
[15] Thereafter, the trial court entered its restitution order and ordered Postiglione to
pay $18,451.33 in restitution to Kelly. Specifically, the trial court determined
that Kelly had incurred $33,451.33 in medical expenses, noted that Kelly had
received $15,000.00 from the Indiana Criminal Justice Institute’s Violent Crime
Compensation Fund, and ordered Postiglione to pay the remaining $18,451.33
4
In Lowden, our Court reviewed the aggravated battery statute when addressing the defendant’s jury
instruction argument. Specifically, the defendant argued that the State was required to prove that the
defendant “knew his conduct would lead to serious bodily injury.” Lowden, 51 N.E.3d at 1222. We rejected
the defendant’s argument and held that “the severity of the injury [wa]s not an element of the prohibited
conduct, but a result of it.” Id. at 1223. We explained that, “the State was required to prove only that [the
defendant] knowingly or intentionally inflicted injury upon [the victim] and not that [the defendant] knew he
would cause serious bodily injury.” Id.
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in restitution to Kelly. In its order, the trial court gave the following “support
of its ruling[:]”
1. [Postiglione] was found guilty of battery, a [C]lass [A]
misdemeanor, for physically striking Joseph Kelly. The Court
made the equitable ruling of not convicting [Postiglione] of the
more serious Class C [sic] felony battery resulting in serious
bodily injury, because the evidence suggested these injuries were
more likely inflicted by [Postiglione’s] co-defendants, Christopher
Schafer and Michael Schafer.
2. The battery committed by [Postiglione], however, started the
fracas and the codefendants[’] actions were not a separate,
intervening action which might have removed [Postiglione’s]
responsibility for restitution.
3. The injuries sustained by Joseph Kelly were reasonably
foreseeable and a direct consequence of the acts initiated by
[Postiglione].
(App. Vol. 2 at 6). Postiglione now appeals.
Decision
[16] Postiglione argues that the trial court abused its discretion by ordering her to
pay $18,451.33 in restitution to Kelly, contending that she did not directly cause
Kelly’s injury for which he sought restitution.
[17] Pursuant to the restitution statute, INDIANA CODE § 35-50-5-3, a trial court has
authority to “order [a defendant] to make restitution to the victim of the crime[.]”
IND. CODE § 35-50-5-3(a) (emphasis added). The trial court “shall base its
restitution order upon a consideration of . . . [among other things,] . . . medical
and hospital costs incurred by the victim (before the date of sentencing) as a
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result of the crime[.]” I.C. § 35-50-5-3(a)(2) (emphasis added). “Although the
[restitution] statute does not define the term ‘victim,’ [the Indiana Supreme]
Court has held that restitution is properly payable to ‘those shown to have
suffered injury, harm or loss as a direct and immediate result of the criminal
acts of a defendant.’” Sickels v. State, 982 N.E.2d 1010, 1013 (Ind. 2013)
(quoting Reinbold v. State, 555 N.E.2d 463, 470 (Ind. 1990), overruled in part on
other grounds by Wright v. State, 658 N.E.2d 563 (Ind. 1995)).
[18] “The principal purpose of restitution is to vindicate the rights of society and to
impress upon the defendant the magnitude of the loss the crime has caused.”
Pearson v. State, 883 N.E.2d 770, 772 (Ind. 2008), reh’g denied. “Restitution also
serves to compensate the offender’s victim.” Id. An order of restitution lies
within the trial court’s discretion and will be reversed only where there has been
an abuse of discretion. Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). A “trial
court abuses its discretion in ordering restitution ‘only if no evidence or
reasonable inferences therefrom support the trial court’s decision[.]’” Archer v. State,
--N.E.3d--, 2017 WL 3882430, *3 (Ind. Sept. 6, 2017) (quoting Little v. State, 839
N.E.2d 807, 809 (Ind. Ct. App. 2005)) (emphasis added by Archer).
[19] Postiglione does not challenge her Class A misdemeanor battery conviction;
thus, she does not dispute that she knowingly or intentionally touched Kelly in
a rude, insolent, or angry manner, resulting in bodily injury to Kelly. See I.C. §
35-42-2-1. She also does not dispute that: (1) Kelly sustained injuries in his
encounter with Postiglione and her co-defendants; (2) Kelly incurred medical
bills totaling $33,451.33 as a result of his injuries; and (3) the State presented
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evidence to show that he had incurred those medical bills. Instead, Postiglione
suggests that Kelly’s medical costs were all related to Kelly’s broken ankle
injury and his surgery for that ankle fracture, and she contends that “the State
failed to present sufficient evidence to prove that [she] caused the injury to Mr.
Kelly [that] required him to have surgery.” (Postiglione’s Br. 7). She asserts
that Kelly’s ankle injury was caused by Michael stomping on it and contends
that there was “no evidence that [her] criminal conduct caused Michael to
stomp repeatedly on Mr. Kelly’s ankle[.]” (Postiglione’s Br. 9). She seems to
argue that Kelly could not be considered her victim because she did not directly
or solely cause his specific ankle injury.
[20] Postiglione, however, ignores the fact that Kelly had a broken leg in addition to
a broken ankle and that Kelly broke his leg as he fell to the ground with
Postiglione latched onto him. Furthermore, the medical bills included in State’s
Exhibit 2 included medical bills that were related to all of Kelly’s injuries.
These medical bills, which were incurred on various dates, included ambulance
services, radiology services, crutches, anesthesia services, and hospital services.
[21] More importantly, the restitution statute and case law do not require that a
victim’s injury or loss be directly or solely “caused” by a defendant; instead,
they require the victim’s injury or loss be a “result of” the defendant’s crime.
See, e.g., I.C. § 35-50-5-3(a)(2); Archer, 2017 WL 3882430 at *3; Sickels, 982
N.E.2d at 1013.
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[22] Our supreme court has explained that “the word ‘victim’ in the statutes
authorizing restitution has not been construed so narrowly as to limit the
payment of restitution only to the person or entity actually subjected to the
commission of the crime” and further explained that a victim could include
third parties, such as survivors of a murder victim, as long as they had “shown
to have suffered injury, harm or loss as a direct and immediate result of the
criminal acts of a defendant.” Reinbold, 555 N.E.2d at 470. In Reinbold, our
supreme court held that the trial court had acted within its discretion when it
ordered a defendant to pay the victim’s “funeral and burial expenses incurred
by [the victim’s] family, as well a figure designated as child support for the two
minor children [the victim had] left.” Id. at 471. The Reinbold Court held that
“[t]hese monetary losses born by these parties were the result of appellant’s
criminal acts, and the trial court [had] acted within its statutory authority when
ordering restitution for their recompense.” Id. (emphasis added).
[23] More recently, in Archer, our supreme court reviewed the issue of restitution
and the evidence necessary to support a trial court’s restitution order. Archer,
2017 WL 3882430 at *3. In that case, a defendant stole a car, and, when the
car was found five hours later, it had some damage and red paint on various
places on the car. Id. at *1. The defendant pled guilty to auto theft, and the
trial court ordered her to pay $5,240.32 in restitution to the victim for the spray-
paint damage to the victim’s car. Id. On direct appeal, the defendant argued
that the trial court had abused its discretion by ordering her to pay restitution
because there was no evidence to show that the defendant “herself [had been]
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the one who [had] spray-painted the victim’s vehicle.” Id. at *3. Another panel
of our Court agreed and held, among other things, that “insufficient evidence
supported the restitution order because the record did not show that the spray-
paint damage was attributable to the theft.” Id. at *2. Our Indiana Supreme
Court granted transfer and affirmed the trial court’s restitution order. Id. at *3.
The Archer Court explained that appellate courts may find an abuse of
discretion in a trial court’s restitution order “only if no evidence or reasonable
inferences therefrom support the trial court’s decision[.]” Id. (emphasis in original
and internal quotation marks and citation omitted). The Archer Court held that
reasonable inferences supported the trial court’s restitution order at issue and
reasoned as follows:
Here, there is sufficient evidence that the spray-painting is a
result of the underlying auto theft. Archer pled guilty to auto
theft; that is, she “knowingly exert[ed] unauthorized control over
the motor vehicle of [the victim] . . . with the intent to deprive the
person of the vehicle’s value or use.” (App. 16.) The record
reveals that [the victim’s] vehicle was stolen. When it was
recovered five hours later, Archer was driving the vehicle and it
had fresh red paint all over its front and sides as well as covering
the vehicle’s VIN. While it is true that no one testified that
Archer was the one who spray-painted the vehicle, it can be
reasonably inferred that Archer is responsible for that damage.
For instance, it is a reasonable inference that the purpose of the
paint was to change the vehicle’s appearance and/or conceal the
VIN so it would not be recognized as stolen, facilitating the
crime. Also, Archer was driving the vehicle only five hours after
it was stolen so it is reasonable to infer that Archer was
responsible for the painting, even if she wasn’t the person who
actually sprayed the vehicle. Indeed, Archer stole the vehicle and
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is responsible for the damage done to it while it was in her
custody and control, including the spray-painting.
Id. at *3.
[24] Here, the trial court, when ordering restitution, explained that Postiglione had
“started the fracas” and that her “codefendants[’] actions were not a separate,
intervening action which might have removed [her] responsibility for
restitution.” (App. Vol. 2 at 6). The trial court specifically found that Kelly’s
injuries were a result of or a “direct consequence of the acts initiated by
[Postiglione].” (App. Vol. 2 at 6). Based on our supreme court’s guidance in
Archer and the purpose of restitution, we conclude that, in this specific case, the
evidence and reasonable inferences therefrom support the trial court’s
restitution order. Accordingly, we affirm the trial court’s restitution order
requiring Postiglione to pay $18,451.33 in restitution to Kelly.
[25] Affirmed.
Baker, J., and Mathias, J., concur.
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Racquel Postiglione v. State of Indiana
Combined Opinion