EMANUEL DAVID HODGES v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Emanuel David Hodges appeals from a judgment of conviction, entered pursuant to a guilty plea, of second-degree murder with the use of a deadly weapon and pandering. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.

Hodges argues the district court plainly erred by ordering $5,000 in restitution because this amount was not based on reliable and accurate information. Because Hodges did not challenge restitution below, he is not entitled to relief absent a demonstration of plain error. See Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48-49 (2018). To demonstrate plain error, an appellant must show there was an error, the error was plain or clear, and the error affected appellant's substantial rights. Id. at 50, 412 P.3d at 48. Because the imposition of restitution is a sentencing determination, this court generally will not disturb a district court's restitution award so long as it does not rest upon impalpable or highly suspect evidence. See Martinez v. State, 115 Nev. 9, 12-13, 974 P.2d 133, 135 (1999).

The guilty plea agreement provided that Hodges understood he would be ordered to pay an unknown amount of restitution to the victim. The presentence investigation report (PSI) indicated that the Victims of Crime program requested $5,000 for funeral expenses paid on behalf of the victim and that “supporting documentation” had been provided to the Division of Parole and Probation (Division). Hodges contends the supporting documentation was an email, attached to a second PSI document, from the Victims of Crime program to the Division indicating that the program paid $5,000 for the victim's funeral expenses and asking for restitution. Hodges argues that no other supporting documentation was provided for the Victims of Crime program's restitution request and that the email is insufficient.

Hodges agreed to pay an unknown amount of restitution as part of his plea agreement and did not object to the facts contained in the PSI at sentencing, which included the Division's conclusion that sufficient documentation supported the Victims of Crime program's restitution request. See NRS 176.145(1)(c) (providing that investigation into a victim's financial loss is “solely at the discretion” of the court or the Division). Further, the second PSI document and the email from the Victims of Crime program to the Division are not contained in the appellate record. Because it is an appellant's duty to ensure that an adequate trial court record is prepared for this court's review, and we presume that items not contained in the record on appeal support the district court's decisions, see Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2008), we conclude Hodges fails to demonstrate the district court's restitution order rested upon impalpable or highly suspect evidence. Therefore, Hodges fails to demonstrate the district court plainly erred in ordering him to pay $5,000 in restitution.

Hodges also argues the district court plainly erred by awarding restitution to the Victims of Crime program. Hodges contends the program is not a victim because it does not meet the statutory definition of a victim and because it did not experience an unexpected harm or loss. He argues the program is akin to an insurance company, like the purported victim at issue in Martinez, 115 Nev. at 10, 974 P.2d at 134, and not akin to a government social services agency, like the victim in Roe v. State, 112 Nev. 733, 917 P.2d 959 (1996). We disagree that the district court plainly erred by ordering restitution be paid to the program for the following reasons.

First, NRS 176.015(5)(d) provides in relevant part that a victim is “[a] person who has been injured ․ as a direct result of the commission of a crime” for purposes of the sentencing hearing. The supreme court observed in Igbinovia v. State that “it is not without any foundation in logic that the government might” satisfy the statutory definition of a victim because it has been injured as a direct result of the commission of a crime. III Nev. 699, 706, 895 P.2d 1304, 1308 (1995). In Roe, the supreme court noted that “[w]hether the state or a state agency is a victim for purposes of restitution will depend on the facts of each case” and considered whether state social services agencies that spent money for the benefit of a child victim (foster care and medical costs) were victims. Roe, 112 Nev. at 734-35, 917 P.2d at 960. The court held:

The state agencies involved in the instant case can be considered “victims” for the purposes of restitution for two reasons. First, they qualify under the reasoning set forth in Igbinovia [v. State, 111 Nev. 699, 895 P.2d 1304 (1995)], i.e., the harm or loss suffered was unexpected and occurred without the voluntary participation of the agencies suffering the harm or loss. Second, the money expended by the agencies was for the benefit of the children in this case, the true victims of [the defendant's] criminal conduct. Reimbursing the agencies for the money expended is analogous to making restitution to a guardian acting on behalf of the children. In sum, we conclude that in the instant case, an order of restitution is appropriate, even though that restitution will be paid to state agencies.

Id. at 735-36, 917 P.2d at 960.

In Martinez, the Nevada Supreme Court applied the factors articulated in Roe and determined that an insurance company was not a victim for restitution purposes because: (1) it did not satisfy the statutory definition of a victim; (2) when an insurance company “pays for a victim's medical expenses, it does so pursuant to a contractual obligation to its insured”; and (3) an insurance company “does not suffer an unexpected harm or loss, as the very purpose of insurance is to cover such expenses.” Martinez, 115 Nev. at 11-12, 974 P.2d at 133.

Hodges argues that the Victims of Crime program does not experience an unexpected loss “because its very purpose is to cover expenses for victims,” and he therefore likens the program to the insurance company contemplated in Martinez. However, unlike an insurance company, the program has no contractual obligation to and does not receive any payments to provide coverage from an unknown, hypothetical victim and thus the loss the program ultimately suffers by covering expenses for the actual victim is unexpected. Further, the money expended by the Victims of Crime program was to cover funeral expenses for the benefit of the actual victim in this case, like the expenses expended for the benefit of the child victims in Roe. Thus, we conclude the Victims of Crime program acted in this circumstance more like the social services program discussed in Roe.

Second, the Nevada Supreme Court recently held “that restitution awards to Victims of Crime must be offset by compensation victims receive from a defendant, or in this case, a defendant's insurer, when both payments cover the same losses.” Gee v. State, 140 Nev., Adv. Op. 16, 545 P.3d 90, 95 (2024). In so doing, the court appeared to implicitly authorize a restitution award to the program so long as the award did not result in double recovery. For these reasons, we conclude Hodges fails to demonstrate the district court plainly erred by ordering restitution be paid to the Victims of Crime program. Accordingly, we

ORDER the judgment of the district court AFFIRMED.¹

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Insofar as Hodges raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.