Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20110130001 The Honorable Terry L. Chandler, Judge
Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant
Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Brammer concurred.
¶1 Following a jury trial in absentia, Jennifer Snouffer was convicted of class four felony theft by control and/or by controlling stolen property and trafficking in stolen property. On appeal, she argues the trial court erred by ordering restitution to the victim, E.R., for certain unrecovered items and for amounts E.R. paid to Snouffer's employer. Because we conclude the court abused its discretion in finding that Snouffer directly caused the loss of the unrecovered items, and because the wages paid by E.R. were not economic losses caused by Snouffer's criminal conduct, we vacate the portion of the restitution order relating to E.R., but otherwise affirm.
Factual and Procedural Background
¶2 We view the evidence relating to restitution in the light most favorable to sustaining the trial court's order. State v. Lewis, 222 Ariz. 321, ¶ 5, 214 P.3d 409, 412 (App. 2009). In September 2010, E.R. hired Christian Companions to provide twenty-four-hour, in-home, non-medical care for her husband. Snouffer worked as a caregiver for Christian Companions and occasionally worked at E.R.'s home. After Snouffer left on the morning of December 3, E.R. noticed some of her jewelry was missing. A Pima County Sheriff detective discovered that Snouffer had pawned one piece of E.R.'s jewelry on November 7 and another twelve pieces on November 28, and detectives later found several additional pieces of E.R.'s jewelry in Snouffer's home.
¶3 At the grand jury hearing, the detective testified that E.R. initially had said the value of all the stolen items was "roughly under $10, 000" and the value of the recovered jewelry specifically was between $3, 000 and $4, 000. The grand jury then indicted Snouffer for theft by control and/or controlling stolen property with a value between $3, 000 and $4, 000, a class four felony, A.R.S. § 13-1802(G), and first-degree trafficking in stolen property, A.R.S. § 13-2307(B).
¶4 After the grand jury hearing, but before trial, E.R. claimed additional pieces of jewelry were missing that she had not previously remembered and that the unrecovered jewelry was valued at $40, 600. The state chose not to re-indict Snouffer based on E.R.'s revised valuation and the case proceeded to trial on the class four felony charge of theft by control and/or controlling stolen property. The parties agreed to limit the evidence at trial to the recovered jewelry. The parties additionally agreed the trafficking charge would be limited to the jewelry pawned on November 28, and the trial court amended the indictment accordingly. A jury subsequently found Snouffer guilty of both counts. The court suspended the imposition of sentence and placed Snouffer on concurrent terms of probation, the longest of which is five years.
¶5 E.R. then filed a restitution affidavit requesting $40, 600 for the unrecovered jewelry, which included approximately eleven additional pieces of jewelry and four sterling silver dinner knives, $500 for the insurance deductible she had paid for her claim on all of the stolen items, and $2, 146.42 for wages she had paid to Christian Companions for Snouffer's services. Following a restitution hearing, the trial court ordered Snouffer to pay E.R. restitution in the amount of $43, 246.42 for "unrecovered jewelry and other items stolen, [E.R.'s] insurance deductible and wages she paid to [Snouffer]." The court additionally ordered Snouffer to pay restitution to the pawn shops and E.R.'s insurance company. We have jurisdiction over Snouffer's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). See State v. Fancher, 169 Ariz. 266, 266 n.1, 818 P.2d 251, 251 n.1 (App. 1991); see also Ariz. R. Crim. P. 31.3(b) and 32.1(f) (permitting trial court to grant delayed appeal).
¶6 Our review of the record revealed that Snouffer was not present at the restitution hearing or when the trial court issued its restitution order. Snouffer did not raise a presence issue below or on appeal. However, because a presence error can be structural error, State v. Forte, 222 Ariz. 389, ¶ 15, 214 P.3d 1030, 1035 (App. 2009), and reversal is mandated if we find such error, State v. Valverde, 220 ...