BREWER v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Donavon Brewer shot Larry Yopp as they were traveling on a highway in separate vehicles, causing Yopp to sustain severe injuries. Brewer appeals the restitution order the trial court imposed after he pleaded guilty to Level 3 felony aggravated battery. Brewer argues there is insufficient evidence to support the trial court's order. Concluding the evidence does not present a reasonable basis for estimating Yopp's losses, we reverse and remand for a new evidentiary hearing on restitution.

Facts and Procedural History

[2] On March 28, 2024, Yopp was driving a semi-tractor trailer southbound on Interstate Highway 65 in Jasper County. Another semi driver, Duane Largent, saw Yopp's semi pass him, slow down, and weave slightly before stopping in the right lane of travel. As Largent passed the semi, he saw Yopp extending his blood-covered hands out of the driver's side window.

[3] Largent pulled over and went to aid Yopp. He saw a bullet hole in the windshield. Yopp was applying a towel to a facial wound and said someone in a white sport utility vehicle (“SUV”) had shot him. Largent called 911.

[4] Officers arrived at the scene and determined Yopp was bleeding from his neck and his mouth. His injury was consistent with a gunshot wound. Medics airlifted Yopp to a hospital.

[5] Largent's vehicle had a camera mounted on its front windshield. Officers reviewed the footage and saw a white GMC Acadia SUV pass Yopp's semi, after which the semi began swerving and came to a stop. The Acadia continued driving south, and officers could not read its license plate.

[6] On March 30, Jelisa Brown arrived at an Indiana State Police post in a neighboring county. She told officers that she had been driving the Acadia when the shooting occurred. Brown's partner, Brewer, was in the passenger seat, and their two children were in the back seats. She told the officers that Yopp's semi had swerved toward her vehicle as she passed him, which caused her to almost drive off the road. Brown next said that Brewer rolled down his window, and she saw him point a handgun at the semi. As they kept driving south on their way to visit family in another state, Brown asked Brewer if he had shot at the semi, and Brewer said that he had. Brown and Brewer returned to Indiana the next day because Brown saw a news story reporting that a semi driver had been shot on Interstate Highway 65 in Indiana. Brewer later turned himself in to the police.

[7] On April 30, officers interviewed Yopp, who was still hospitalized in Indianapolis. He told the officers the white SUV had been tailgating him, and as it passed him on the left, an individual shot at him two to three times. He also said that he had been comatose for several weeks after the shooting, and his jaw needed surgery. He also had to learn how to walk again.

[8] The State charged Brewer with attempted murder, a felony; Level 3 felony aggravated battery; Level 5 felony criminal recklessness; Level 5 felony battery resulting in serious bodily injury; Level 5 felony battery by means of a firearm; and Level 6 felony pointing a firearm.

[9] The parties negotiated a plea agreement.¹ Brewer agreed to plead guilty to Level 3 felony aggravated battery, and the State agreed to dismiss the other five charges. Sentencing was left to the trial court's discretion.

[10] Before sentencing, the State filed with the trial court a signed victim impact statement. Yopp swore or affirmed that his statement was true and provided the following assessment of his losses:

a. Value of property stolen: $2,500 out of truck belongings

b. Value of property damaged (cost to repair): $1200 windshield

c. Medical and/or counseling expenses incurred: $100,000-200,000 still coming in

d. Loss of wages: $360,000 at 6,000 a week

TOTAL CLAIM FOR RESTITUTION: $563,700

Appellant's App. Vol. II, p. 209.

[11] Yopp also attached an unsigned, unsworn, handwritten note to the form, in which he stated he had been in a coma for twenty-eight days and had to have operations “to remove teeth from [his] lungs” and reconstruct the right side of his jaw. Id. at 208. He also said that he had a feeding tube in his stomach, although it is unclear if he needed the tube only while hospitalized or will need to use the tube for the rest of his life. Yopp also said that he had high blood pressure and high cholesterol, but it is unclear whether he developed those conditions as a result of the shooting. He again reported that he had to relearn how to walk. Yopp further asserted he uses a walker and had to have a ramp installed in front of his home. He explained that his medical bills have been submitted to his insurance company, but the company had not paid anything.

[12] Next, Yopp said that he had recurring nightmares and “ptsd,” and he was being treated by a psychiatrist and psychologist. Id. He also has scars on his left leg, stomach, and on the right side of his throat. Yopp also said that he lost his job due to the shooting and lost his home while he was hospitalized. He cannot sit for more than twenty or thirty minutes before repositioning himself. Finally, Yopp had to pay for a plane ticket to fly home and paid additional funds to transport and care for his pets.

[13] Yopp did not testify at the sentencing hearing, and the State did not submit any other evidence in support of his claim for restitution. The trial court accepted the parties’ agreement and ordered Brewer to serve twelve years, with two years suspended to probation. The court also ordered him to pay $563,700 to Yopp as restitution, to be offset by any “insurance credit or minimization[.]” Id. at 218. This appeal followed.

Discussion and Decision

[14] Brewer asks this Court to reverse the trial court's restitution order because it lacks sufficient evidentiary support. In response, the State claims: (1) the evidence is sufficient; but (2) in the alternative, if this Court determines the evidence is insufficient, the appropriate remedy is to remand the case to the trial court for a new restitution hearing.

[15] “The primary 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.” Akins v. State, 39 N.E.3d 410, 412 (Ind. Ct. App. 2015). “Restitution also serves to compensate the defendant's victim.” Id.

[16] The General Assembly has provided that when a court imposes a sentence upon a defendant, the court may also order the defendant to pay restitution. Ind. Code § 35-50-5-3(a) (2018). Categories of losses for which restitution may be ordered include:

(1) property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate);

(2) medical and hospital costs incurred by the victim (before the date of sentencing) as a result of the crime;

(3) the cost of medical laboratory tests to determine if the crime has caused the victim to contract a disease or other medical condition; [and]

(4) earnings lost by the victim (before the date of sentencing) as a result of the crime including earnings lost while the victim was hospitalized or participating in the investigation or trial of the crime[.]

Id.

[17] “A restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime.” Akehurst v. State, 115 N.E.3d 515, 518 (Ind. Ct. App. 2018). “The amount of actual loss is a factual matter to be determined upon the presentation of evidence.” Baker v. State, 70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied. Consequently, an order of restitution is a matter within the trial court's sound discretion and will be reversed upon a showing of abuse of discretion. Archer v. State, 81 N.E.3d 212, 215 (Ind. 2017). “Evidence supporting a restitution order is sufficient ‘if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.’ ” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (quoting T.C. v. State, 839 N.E.2d 1222, 1227 (Ind. Ct. App. 2005)).

[18] The trial court granted Yopp's request for $2,500 for property lost due to theft. But “[a]bsent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did not result in a conviction.” N.R.H. v. State, 25 N.E.3d 1280, 1283 (Ind. Ct. App. 2015). Brewer was not charged with stealing Yopp's property, and there is no evidence that Brewer entered Yopp's semi. This portion of the restitution award lacks evidentiary support and must be reversed.

[19] Regarding Yopp's claim for $1,200 to replace his semi's windshield, he did not produce an estimate from a mechanic or otherwise indicate whether the amount is based on anything more than speculation. This is not a reasonable basis for estimating the loss. See J.H., 950 N.E.2d at 734 (reversing award of restitution for property damage; State presented only piece of paper with number written on it as support).

[20] Turning to Yopp's estimates of medical expenses and lost wages, there is no doubt that Yopp suffered serious, life-long injuries caused by Brewer's criminal misconduct. There also appears to be no dispute that Yopp lost his trucking job due to Brewer's battery. But Yopp's listing of his medical expenses and lost income appear to be imprecise estimates, lacking any supporting documentation such as medical bills or W-2 forms. Regarding medical expenses, he could not be more specific than a range of $100,000-$200,000. Yopp's indefinite statements on his restitution form and his handwritten unsworn note are insufficient to sustain his estimates of his medical expenses and lost wages. See Cooper v. State, 831 N.E.2d 1247, 1253-54 (Ind. Ct. App. 2005) (reversing restitution award for lost wages; victims did not testify and submitted unsworn form with no explanation to justify amounts listed), trans. denied; cf. Ault v. State, 705 N.E.2d 1078, 1084 (Ind. Ct. App. 1999) (affirming damages award of $100,000 to mother for child's care due to injuries inflicted by Ault; mother provided detailed explanation of amounts expended on at-home medical care, transportation, and related expenses). Restitution in a criminal case is limited to actual expenses incurred, unlike recovery in a civil case that can include damages for pain and suffering as well as other elements not restricted to actual financial loss. While $500,000.00 plus might be appropriate in a civil case it is not recoverable as a restitution order in a criminal case on this record. We conclude the trial court erred in ordering $563,700 in restitution based on the evidence presented.

[21] The next step is to determine the remedy. We agree with the State that it is appropriate to remand to the trial court to consider additional evidence on restitution. See Iltzsch v. State, 981 N.E.2d 55, 57 (Ind. 2013) (remanding to trial court for additional evidence on restitution after evidence related to property damage was deemed insufficient).

Conclusion

[22] For the reasons stated above, we reverse the trial court's restitution award and remand for a new hearing on restitution.

[23] Reversed and remanded.

FOOTNOTES

1.   Nothing in the plea agreement limited the trial court to considering only the facts presented in that document. As a result, we may also consider the statements in the probable cause affidavit and police reports. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (unless parties bargain in plea agreements for language excluding some circumstances of offense from trial court consideration, “it is not necessary for a trial court to turn a blind eye to the facts of the incident that brought the defendant before them”).

Crone, Senior Judge.

Bradford, J., and Brown, J., concur.