Criminal Restitution: RUSSELL V. COM. (COA 11/2/2007)

RUSSELL V. COM.
CRIMINAL:  RESTITUTION AND IDENTITY THEFT

2006-CA-000747
PUBLISHED; AFFIRMING 
PANEL: VANMETER PRESIDING; KELLER, GUIDUGLI CONCUR
COUNTY: PERRY
DATE RENDERED: 11/02/2007

COA affirmed circuit court order requiring Carlos Russell to pay $2,157 in restitution to Anderson Auto Sales.

Russell purchased a truck and obtained financing using his father’s information (name, SSN, address), and then defaulted on loan resulting in the truck being repossessed.  However, the truck had been extensively damaged.

A jury found Russell guilty of theft of identity and recommended a one-year term of imprisonment. The trial court entered judgment accordingly. The trial court also entered an order requiring Russell to pay restitution in the amount of $2,157, i.e., the amount necessary to repair the damage to the truck.

Russell conceded that pursuant to KRS 514.160(6), he was required to forfeit his right to the truck but argued the trial court erred by concluding that Anderson Auto Sales was entitled to restitution under KRS 532.034 because it is neither the person whose identity was stolen for purposes of KRS 532.034(1), nor a person or entity as listed in KRS 532.034(2).

COA disagreed and held a defendant who is found guilty of theft of identity shall forfeit any lawful claim to the identifying information, property, or other realized benefit of the other person as a result of such violation. KRS 514.160(6). Further, KRS 532.034 specifies that a person who is found guilty of theft of identity shall, in addition to any other punishment, be ordered to make restitution for financial loss sustained by a victim. These persons or entities may include a financial institution, insurance company, or bonding association that suffers direct financial loss as a result of the violation, and the language of the statute indicates a clear legislative intent to permit the expansion of the list of possible victims.

By Michael Stevens

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