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Date: 11-30-2016

Case Style:


Case Number: 15-1223

Judge: Michael R. Mullins


Plaintiff's Attorney:

Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

Defendant's Attorney:

John L. Dirks

Description: Jonathan Davis appeals from the district court’s order requiring payment
of restitution for his conviction of operating while intoxicated (OWI) (marijuana),
first offense, in violation of Iowa Code section 321J.2 (2013). Davis previously
appealed his conviction, and we affirmed. State v. Davis, No. 14-1976, 2016 WL
1677591, at *1 (Iowa Ct. App. Apr. 27, 2016). After a hearing on Davis’s
objection to the victim’s pecuniary damage statement,1 the district court ordered
him to pay total net damages of $14,000.2 Davis now appeals, arguing the
district court erred in finding the criminal conduct for which he was convicted was
the proximate cause of the victim’s damages and the amount of restitution
ordered was not supported by substantial evidence.
After reciting applicable law, the district court made these findings
regarding causation:
First, the Court finds it was the reckless driving behavior of Davis that was the proximate and foreseeable cause of the accident resulting in damages to Miller’s property. Davis, who was intoxicated at the time, recklessly drove into the lane of traffic occupied by Miller’s truck and 9000-pound trailer causing Miller to strike the car driven by Davis. The resulting contact and Miller’s attempts to maintain control caused Miller’s truck to swerve into the median and the trailer to break loose from its hitch and flip over.

In addition to the damage to victim Miller’s truck and trailer, the district court
found Davis caused damage to several antique washing machines Miller was
hauling in his trailer.
In this restitution proceeding, if we find no error of law, we are bound by
the factual findings of the district court if they are supported by substantial 1 See Iowa Code § 910.3; see also id. § 910.1(3)–(5). 2 This is the net amount after an amending order.
evidence. See State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). The
district court applied the law correctly. Davis argues State v. Starkey, 437
N.W.2d 573, 574 (Iowa 1989), supports his challenge to the court’s reference to
reckless driving in its analysis. In Starkey, our supreme court held the victim’s
damages were not caused by the defendant leaving the scene of the accident,
the charge under which the victim’s damages were sought, but were caused by
OWI, a charge brought in a different case in a different county. 437 N.W.2d at
574–75. In our present case, the claim was in the OWI case. It was the manner
of “operating” the vehicle while intoxicated that caused the damages. The district
court’s findings of fact concerning intoxication are supported by substantial
evidence. We further find there is substantial evidence to support the district
court’s conclusion the manner of Davis’s operation of the vehicle while
intoxicated proximately caused the damages to the victim. See State v. Ihde,
532 N.W.2d 827, 829 (Iowa Ct. App. 1995) (“The restitution order must rest on ‘a
causal connection between the established criminal act and the injuries to the
victim.’ This causal connection is essentially the tort element of proximate
cause.” (quoting State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989))). His
intoxication caused him to operate his vehicle recklessly, which set in motion the
events causing damages to the victim.
Davis also argues the district court improperly admitted and relied on
hearsay evidence in making its findings concerning the amount of damages.
The district court had the unenviable task of trying to determine pecuniary
damages while faced with what it found to be “no evidence presented as to what
the fair rate for outside labor to complete the tasks [of repair],” no explanation as
to “what portion of the cost of labor and materials, if any, would be paid by
insurance,” and “no estimates as to the salvage value of the parts that were
undamaged or repairable.” In this case, the victim testified as to his opinion of
the value of the damaged property and his estimates of the cost of repair. See
State v. Savage, 288 N.W.2d 502, 504–05 (Iowa 1980) (“[A]n owner may testify
as to actual value without a showing of general knowledge of market value.”).
The court determined the victim’s valuation of his own time and his estimates of
work to repair the damaged property were not reliable.
The district court admitted into evidence two e-mailed estimates obtained
by the victim. The e-mails are out-of-court written assertions made by persons
other than the defendant, offered into evidence to prove the truth of the matter
asserted, i.e., damages. See Iowa R. Evid. 5.801. As such, they would
ordinarily be inadmissible in evidence. See Iowa R. Evid. 5.802. The court relied
heavily on the two e-mailed estimates, with purported foundation of the
qualifications of the e-mailers provided by the victim, in determining the cost “to
replace and/or restore the washing machines and the trailer to approximately the
value they had prior to the accident.” The e-mailed estimates were clearly
hearsay, but arguably admissible, if a pecuniary damages claim for restitution is
considered subject to rule 5.1101(c)(4), which provides the rules of evidence are
not applicable to sentencing hearings. See State v. Miller, Nos. 12-1448, 12
1449, 2014 WL 1714970, at *1 (Iowa Ct. App. Apr. 30, 2014). But see id. at *3–5
(Mullins, J., dissenting). The estimates were prepared by persons who had been
shown pictures of the damaged machines and presumably had relied on
representations made by the victim; but the estimators had not examined the
machines themselves. The district court determined the estimates “appear to be
from knowledgeable sources and both include labor.” One estimate showed total
damages of $14,575 and the other $14,000. The district court found the
damages were $14,000.
Our supreme court has quoted with approval from the Restatement
(Second) of Torts section 928 (Am. Law Inst. 1979):
When one is entitled to a judgment for harm to chattels[3] not amounting to a total destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm or, at his election in an appropriate case, the reasonable cost of repair or restoration, with due allowance for any difference between the original value and the value after repairs, and (b) the loss of use.

Papenheim v. Lovell, 530 N.W.2d 668, 672 (Iowa 1995).
The district court did not make separate findings as to specific damage
items but apparently accepted the lower of the two e-mailed estimates of
damages. Each estimate had valued one of the washing machines as a total
loss, with values of $7550 and $7500 respectively. The victim, however, had
considered it repairable and was making repairs using parts he had in his
possession or could obtain. There is no evidence of total destruction upon which
to base a pecuniary damages award. The victim provided actual costs for parts
he purchased for repairing some machines, in the amount of $414.75. He claims
his time was worth $45 per hour, which the district court discredited. The
remaining entries for repair estimates contain no itemization, no hourly labor
rates, and the rounded numbers appear as educated guesses rather than actual
costs of repairs. There was no evidence of any difference in value before and
after the damage to the machines. At the time of the hearing, there were no
actual costs for restocking the new trailer. We determine the evidence presented
of the cost estimates for restocking the new trailer are speculative, failing to
provide any specific time itemization or hourly costs, or equipment or hardware


On our review of the record and the district court’s ruling, we conclude substantial evidence does not support the amount of the restitution ordered. There is substantial evidence to support the award of $414.75. We reverse and remand for entry of a temporary order for pecuniary damages as restitution to the victim in that amount.

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