Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016 Page 1 of 6

ATTORNEY FOR APPELLANT

Donald E.C. Leicht

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kimberly Y. Morgan,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 29, 2016

Court of Appeals Case No.

34A05-1509-CR-1323

Appeal from the Howard Superior 

Court II

The Honorable Brant Parry, Judge

Trial Court Cause No.

34D02-1408-FD-211

Bailey, Judge.
Court of Appeals of Indiana | Opinion 34A05-1509-CR-1323 | January 29, 2016 Page 2 of 6

Case Summary

[1] Kimberly Y. Morgan (“Morgan”) appeals a restitution order following her pleas 

of guilty to three counts of Theft, as Class D felonies.1 She presents the issue of 

whether the trial court properly ordered her to pay $16,000.00 to the Howard 

County Convention and Visitors Commission, Inc. (“the Visitors 

Commission”), in addition to the $11,455.482 agreed-upon restitution to 

Selective Insurance Company of America (“Selective Insurance”). We affirm 

in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] During 2012, 2013, and part of 2014, the Visitors Commission employed 

Morgan as a sales manager. On January 22, 2014, Morgan was discharged 

from her employment and the Visitors Commission initiated an inquiry into 

Morgan’s alleged mishandling of funds.

[3] On August 25, 2014, the State charged Morgan with seven counts of Theft, for 

conduct on or about January 25, 2012 (Count I), on or about August 22, 2012 

(Count 2), on or about February 25, 2013 (Count 3), on or about June 11, 2013 

(Count 4), on or about October 17, 2013 (Count 5), on or about December 21, 

2013 (Count 6), and on or about January 13, 2014 (Count 7). Morgan pled 

 

1

Ind. Code § 35-43-4-2.

2 The trial court orally ordered the payment of $11,455.48; the written order states that the amount is 

$11,455.52. 
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guilty to three charges of Theft (Counts 1 through 3) but agreed to pay 

restitution related to the entirety of the charges.3 She was sentenced to three 

years imprisonment, with two days executed and the balance suspended to 

probation. 

[4] On August 18, 2015, the trial court conducted an evidentiary hearing on the 

issue of restitution. A representative of Selective Insurance testified that his 

employer had received a claim from the Visitors Commission for approximately 

$27,000.00. At the conclusion of its investigation, Selective Insurance had paid 

out $11,455.48 (after allowing for the $250.00 deductible). Greater Kokomo 

Economic Development Alliance controller Joleen Boyles (“Boyles”) testified 

that a “deep dive audit” had revealed “missing funds” of a greater amount, 

specifically, $21,450.00. (Tr. at 13-14.) She also requested restitution of the 

$6,500.00 expended for the deep audit. Morgan testified and admitted that she 

had misused a charge card such that $11,455 of funds belonging to the Visitors 

Commission were diverted. She denied taking additional sums.

[5] The trial court ordered Morgan to pay restitution to the Visitors Commission, 

as a condition of probation, in the amount of $16,000.00. She was ordered to 

pay Selective Insurance $11,455.52, but this was not made a condition of 

 

3 Absent an agreement to pay restitution, a defendant may not be ordered to pay restitution for an act that did 

not result in a conviction. Polen v. State, 578 N.E.2d 755, 756-57 (Ind. Ct. App. 1991), trans. denied.
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probation. Morgan appeals, challenging only the order with respect to the 

Visitors Commission. 

Discussion and Decision

[6] Morgan contends that the appropriate amount of restitution consists of 

$11,455.48 to Selective Insurance and $250.00 to the Visitors Commission (to 

satisfy the insurance deductible). She argues that Boyles offered an 

“unsubstantiated assertion” as to aggregate losses and that the costs of a special 

audit are not recoverable as criminal restitution because the costs are not an 

actual loss suffered by the victim. (Appellant’s Br. at 9.)

[7] As part of a sentence or as a condition of probation, a trial court may order a 

defendant to pay restitution to a victim. Bailey v. State, 717 N.E.2d 1, 4 (Ind.

1999). “[T]he 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, and that restitution also serves to compensate the victim.” Iltzsch v. 

State, 981 N.E.2d 55, 56 (Ind. 2013).

[8] The trial court is bound to comply with the applicable restitution statute when 

ordering restitution. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. 

denied. Indiana law authorizes the trial court to order restitution for damages 

incurred “as a result of the crime.” I.C. § 35-50-5-3(a)(1). Because restitution is 

penal in nature, the statute providing for restitution must be strictly construed 
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against the State to avoid enlarging it beyond the fair meaning of the language 

used. Cherry v. State, 772 N.E.2d 433, 439 (Ind. Ct. App. 2002), trans. denied. 

[9] Accordingly, a restitution order must reflect a loss sustained by the victim “as a 

direct and immediate result” of the defendant’s criminal acts. Rich, 890 N.E.2d 

at 51. The amount of actual loss is a factual matter to be determined upon the 

presentation of evidence. Id. at 49. We review a trial court’s order of 

restitution for an abuse of discretion and will affirm the order if sufficient 

evidence exists to support the decision. Id.

[10] Here, the State presented exhibits (1) indicating that forensic accountants 

reporting to Selective Insurance “confirmed an employee dishonesty loss 

totaling $11,705.48” and (2) documenting the insurance payout of $11,455.48 

($11,705.48 less the $250.00 deductible). (State’s Ex. 2.) According to 

information provided to Selective Insurance, Morgan had created a Square, Inc. 

credit card account to receive fraudulent credit card payments from the Visitors 

Commission. Selective Insurance was able to confirm, based upon a review of 

documentation provided by its insured, fraudulent charges totaling $14,045, a 

portion of which Morgan had repaid.

[11] Boyles testified that additional monies were missing from the coffers of the 

Visitors Commission, relative to 2012 and 2013, based upon a “deep dive” 

audit. (Tr. at 13.) However, she did not offer testimony or documentation 

showing a nexus between those missing funds and conduct by Morgan. As 

such, the State did not satisfy its burden to show losses as a “direct and 
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immediate result” of Morgan’s criminal acts beyond the $11,455.48 paid by 

Selective Insurance and the $250.00 deductible charged to the Visitors 

Commission. Rich, 890 N.E.2d at 51. As for the $6,500.00 awarded for the 

“deep dive” audit, this was also improper. See Lang v. State, 911 N.E.2d 131, 

136 (Ind. Ct. App. 2009) (concluding that an expenditure to determine the 

amount of a loss is outside the parameters of I.C. 35-50-5-3, a criminal 

restitution statute, although it may be the subject of a separate civil claim).

 Conclusion

[12] The trial court properly concluded that Morgan is to pay restitution to Selective 

Insurance. To the extent that the restitution order provides for restitution to the 

Visitors Commission in excess of the $250.00 deductible, it is an abuse of 

discretion. We remand with instructions to the trial court to enter a restitution 

order for the payment of $11,455.48 to Selective Insurance and $250.00 to the 

Visitors Commission.

[13] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Crone, J., concur.