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State v. Gavin-Freeman

Court of Appeal of Iowa

October 23, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
TAMARA ANNETTE GAVIN-FREEMAN, Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, Carol L. Coppola, Judge.

The defendant challenges a restitution order.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, John Sarcone, County Attorney, Kevin Hathaway, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

TABOR, J.

Tamara Gavin-Freeman challenges the district court finding she owes $3645 in restitution to the estate of Thomas Renda following her guilty plea to falsifying her resume. The court ordered her to repay $3470 in wages and $175 for the cost of changing the locks on Renda's house. Gavin-Freeman claims the estate did not suffer an actual loss because she provided the services for which she received wages. She also contends the expense of changing the locks was not causally related to her crime. Because her hiring was based upon misrepresentation, we affirm the restitution for the amount of her wages. Because the family's decision to change the locks was too attenuated from Gavin-Freeman's crime, we vacate that aspect of restitution and remand for entry of a modified order.

I. Background Facts and Proceedings

The children of Thomas Renda hired Gavin-Freeman as a home health care provider in November 2011 to care for their elderly and terminally ill father. During the application process, Gavin-Freeman submitted her resume to Renda and his family. On her resume, Gavin-Freeman claimed she was a registered nurse (RN), when she was not. Renda paid Gavin-Freeman $650 per week. When Gavin-Freeman took time off, the family hired certified nursing assistants (CNAs) to care for Renda. The family paid the CNAs between twenty and twenty-five dollars per hour. That amount was then deducted from Gavin-Freeman's pay. The family fired Gavin-Freeman on December 19, 2011. In total, Gavin-Freeman received $3470 in wages. Gavin-Freeman called the police and accused a substitute CNA of stealing money from her bedroom at the Renda home. An investigation into the dispute revealed Gavin-Freeman was not an RN. The family learned Gavin-Freeman was on the "ineligible" list with the state nursing board and had a criminal record.

On August 2, 2012, Gavin-Freeman pleaded guilty to falsifying an academic degree in violation of Iowa Code section 715A.6A (2011). She was sentenced to 120 days in jail and fined $315. On October 2, 2012, the State moved to amend the sentencing order to include restitution. The State sought restitution for the family's cost of changing the locks to the home, as well as wages paid to Gavin-Freeman and to other certified nursing assistants. The court granted the motion and entered a supplemental restitution order of $4065. Gavin-Freeman filed a motion for a restitution hearing, denying the estate suffered any pecuniary damages. The court held a hearing on October 30, 2012. Renda's daughters testified at the restitution hearing that their decision to hire Gavin-Freeman to care for their father was strongly influenced by her representation she was trained as an RN. The family also changed the locks on the house after Gavin-Freeman returned what appeared to be a copy of the house key, leaving family members to believe she kept the original key.

Gavin-Freeman testified she "came clean" with Renda after he discovered the name on her driver's license was spelled differently from the name on her resume, but she claimed he said not to "tell the girls because the girls fight all the time." Gavin-Freeman also testified she returned the original house key when she was fired. Following the hearing, the court ordered restitution in the amount of $3645. Gavin-Freeman now appeals.

II. Standard of Review

Appellate review of restitution matters is for correction of errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We determine if substantial evidence exists to support the court's factual ...


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