Opinion
No. 108,752.
2013-12-6
STATE of Kansas, Appellee, v. Mykel Dontae KARLYLE, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jose V. Guerra, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jose V. Guerra, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., ATCHESON, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Mykel Dontae Karlyle appeals the district court's restitution order. Specifically, Karlyle contends the district court abused its discretion in basing restitution on purchase price rather than fair market value. Because we find the district court did not abuse its discretion in relying on the purchase price of several items to determine restitution, we affirm.
Factual and Procedural History
Pursuant to a plea agreement, Karlyle pled no contest to aggravated battery in violation of K.S.A. 21–3414(a)(1)(A), a severity level 4 person felony, and aggravated assault with a deadly weapon in violation of K.S.A. 21–3410(a), a severity level 7 person felony. Subsequently, the district court sentenced Karlyle to 66 months' imprisonment on the aggravated battery conviction and 12 months' imprisonment followed by 12 months' postrelease supervision on the aggravated assault conviction, to run concurrent with the aggravated battery sentence. The district court retained jurisdiction to determine restitution.
On May 17, 2012, the district court held a restitution hearing where the State requested restitution in the amount of $3,891.26 for medical expenses, $1,100 for stolen cash, and $942.97 for stolen property—a cell phone, an iPod touch, and a handgun. Karlyle disputed the amount of restitution.
At the restitution hearing, Christopher Blackburn, one of the victims, testified that his Motorola Android cell phone, iPod touch, and Taurus PT111 handgun were stolen from his truck during the attack by Karlyle and others on February 25, 2011. Blackburn testified he paid $299.99 for the cell phone on March 4, 2010, but he recently “replaced it on insurance.” He said his cell phone was in “new condition” at the time it was stolen. Next, Blackburn testified he bought his iPod touch for $299.99 a month and a half before it was stolen. He said his iPod touch was in “new” condition at the time it was stolen. Last, Blackburn testified he bought his handgun, a Taurus PT111, in November 2010 for $350. The court admitted Blackburn's receipts for the cell phone, iPod touch, and handgun into evidence.
The district court ordered Karlyle to pay Blackburn restitution in the amount of $4,841.24. The district court awarded $299.99 for the cell phone, $299.99 for the iPod touch, $350 for the handgun, and $3,891.26 for medical expenses. The court disallowed restitution for the cash that was stolen, finding Blackburn's restitution testimony on that point inconsistent with his preliminary hearing testimony.
Karlyle timely appeals.
Did the District Court Abuse its Discretion When It Determined the Amount of Restitution?
Karlyle contends the district court erred in relying on the purchase price of the cell phone, iPod touch, and handgun instead of the fair market value. Conversely, the State argues “the district court's decision compensated the victim for the ‘actual’ loss caused by Karlyle's crimes” and the amount ordered was “reasonable given the evidence presented during the restitution hearing.” Standard of Review
The amount of restitution and manner in which it is made to a victim are determined by the district court exercising its judicial discretion. Consequently, appellate courts apply an abuse of discretion standard of review. State v. Hall, 297 Kan. 709, 711–12, 304 P.3d 677 (2013). A district court abuses its discretion if the result reached is “arbitrary, fanciful, or unreasonable.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). An abuse of discretion will be found when no reasonable person would have come to the same conclusion if presented with the same record evidence. See 292 Kan. at 550–51.
Below, the State had the burden to present sufficient evidence to justify the amount of restitution sought. Hall, 297 Kan. at 715; see State v. Cox, 30 Kan.App.2d 407, Syl. ¶ 1, 42 P.3d 182 (2002) (State has burden to prove victim's losses or damages). However, on appeal, the party asserting that the district court abused its discretion has the burden of showing such abuse. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012). Analysis
Restitution is statutory. At the time Karlyle was sentenced, K.S .A.2010 Supp. 21–4603d and K.S.A. 21–4610 governed the district court's authority to order restitution.
K.S.A.2010 Supp. 21–4603d(b)(1) states: “[T]he court shall order the defendant to pay restitution which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
K.S.A. 21–4610 gives the district court authority to order restitution as part of probation. This statute similarly provides: “[T]he court shall order the defendant to ... [m]ake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime.” K.S.A. 21–4610(d)(1). As to amount, this statute provides that restitution be “in an amount and manner determined by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” K.S.A. 21–4610(d)(1).
In this case, the district court ordered restitution as part of Karlyle's prison sentence; therefore, K.S.A.2010 Supp. 21–4603d was applicable. Nonetheless, “[s]tatutes on the same subject are considered ‘in pari materia ’ (in the same matter) and are to be interpreted to achieve consistent results whenever possible.'' State v. Davis, 48 Kan.App.2d 573, 574, 294 P.3d 353 (2013). Thus, this court can use caselaw interpreting either statute to guide its decision when reviewing whether the district court correctly determined the amount of restitution to be paid. 48 Kan.App.2d at 575.
While proof of a victim's damage or loss in a criminal case does not entail the same “rigidness and proof of value that lies in a civil damage suit ..., the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure.” State v. Casto, 22 Kan.App.2d 152, 154, 912 P.2d 772 (1996). “The measure of restitution to be ordered is the amount that reimburses the victim for the actual loss suffered. [Citations omitted].” Hall, 297 Kan. at 712–13.
In property crime cases, Kansas courts have consistently restricted the amount of restitution to the fair market value of the property. See State v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 (2002); State v. Maloney, 36 Kan.App.2d 711, 714–15, 143 P.3d 417,rev. denied 282 Kan. 794 (2006); State v. Rhodes, 31 Kan.App.2d 1040, 1042–43, 77 P.3d 502 (2003) (restitution order reversed where value of various household goods was based on replacement cost rather than fair market value); Casto, 22 Kan.App.2d at 154 (restitution amount should not exceed fair market value immediately before the damage); State v. Frye–Watson, No. 100,722, 2010 WL 653107, at *5 (Kan App.2010) (unpublished opinion) (restitution award was not reliable without factual evidence to support fair market value of the property), rev. denied 290 Kan. 1098. Fair market value is “the price that a willing seller and a willing buyer would agree upon ... in an arm's-length transaction.” State v. Baxter, 34 Kan.App.2d 364, 366, 118 P .3d 1291 (2005). Generally, an award of restitution that exceeds an item's fair market value constitutes an abuse of discretion. State v. Behrendt, 47 Kan.App.2d 396, 400, 274 P.3d 704 (2012), petition for rev. filed May 10, 2012.
“However, when there is no readily ascertainable fair market value ..., the district court may consider other factors in determining restitution, including the purchase price, condition, age, and replacement cost of the property, as long as the valuation is based on reliable evidence which yields a defensible restitution figure.” Maloney, 36 Kan.App.2d at 715. Nonetheless, our Supreme Court recently found fair market value “unpredictable in practice because it is entirely relative, depending on who is doing the buying and who is doing the selling.” Hall, 297 Kan. at 713. In Hall, the Supreme Court went on to acknowledge that fair market value may be “the best measure of loss in some cases, [but] it may not in all.” Hall, 297 Kan. at 713. Additionally, our Supreme Court reiterated:
“The appropriate amount [of restitution] is that which compensates the victim for the actual damage or loss caused by the defendant's crime. And the most accurate measure of this loss depends on the evidence before the district court. As long as the requisite causal connection exists, and “ ‘the [district] court's determination of restitution [is] based on reliable evidence’ “ that “ ‘yields a defensible restitution figure,’ “ [citation omitted], we will uphold the district judge's discretionary decision. [Citation omitted.]” 297 Kan. at 713–14.
On appeal, Karlyle argues the State failed to present sufficient evidence to support the restitution order because the victim testified as to the original purchase price of the cell phone, iPod touch, and handgun, not the fair market value. Karlyle contends the district court erred in ordering him “to pay for new items, when the items taken were used.”
In his brief, Karlyle relies on Rhodes, 31 Kan.App.2d at 1041, where our court found an abuse of discretion when the sentencing court ordered restitution that was partly based on replacement value rather than fair market value. The victim provided an itemized list of stolen items, which included a 5– to 10–year–old television. The victim valued the television using the purchase price for a new television to replace the stolen television. The court remanded, finding the district court had no basis to determine the fair market value. 31 Kan.App.2d at 1043. However, unlike Rhodes, Blackburn testified he purchased the cell phone, iPod touch, and handgun within the past year.
In State v. Coleman, No. 92,302, 2005 WL 2076489, at *4 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 986 (2005), a different panel of our court reviewed the Rhodes decision, noting the evidence produced in Rhodes clearly “suggested that using replacement cost to compensate for items like a 5– to 10–year–old television would provide a windfall to the victim.” In Coleman, the defendant appealed the district court's restitution order, contending the court abused its discretion in using the replacement cost or original purchase price rather than the fair market value to determine the amount of restitution. The victim testified that a rifle and 83 CDs were stolen from his vehicle. At the restitution hearing the victim testified he was unsure how much the rifle was actually worth but testified it would cost him about $300 to buy a new one. The victim then testified that he bought 83 CDs within the past couple of years and paid $14 to $15 per CD, which he had begun replacing at the same cost. The district court subsequently ordered restitution of $300 for the rifle and $1,250 for the CDs. On review, the panel held: “[T]here is nothing to suggest the value placed on the rifle or CDs that would constitute a windfall to [the victim.]” 2005 WL 2076489, at *4. Thus, the panel held, based on the evidence produced below, the district court did not abuse its discretion in its award of restitution for the rifle and CDs.2005 WL 2076489, at *4.
In Davis, 48 Kan.App.2d at 579, our court found nothing unreasonable about the district court's restitution award adopting retail value
“when that was the only value presented in evidence. If the district court has some discretion in determining the amount of restitution—and we know it does—then choosing the retail value is within that discretion when (a) that is the only value in evidence and (b) no other evidence convincingly shows that an award of the retail value would be inappropriate.”
See Coleman, 2005 WL 2076489, at *4 (defendant “failed to controvert the value presented by the State.”); see also State v. Jones, No. 106,750, 2012 WL 4121119, at *2 (Kan.App.2012) (unpublished opinion) (“homeowner's testimony could support a restitution award if that testimony were facially reasonable and unrebutted”), rev. denied 297 Kan. –––– (August 19, 2013).
The present case is similar to Davis and Coleman. The State notified Karlyle on August 1, 2011, of its intention to seek restitution and attached receipts for the cell phone, iPod touch, and handgun. Moreover, at the restitution hearing, Blackburn testified he purchased the cell phone in March 2010 for $299.99 but had recently replaced it through insurance. Blackburn said the phone was in “new condition.” Blackburn then testified he purchased the iPod touch a month and a half before it was stolen for $299.99 and it was in “new” condition. Last, Blackburn testified he purchased the handgun in November 2010, approximately 4 months before it was stolen, for $350. The district court found Blackburn's testimony credible and determined that someone would in fact pay $350 for the handgun. The court noted Blackburn's testimony was the only evidence it had to consider.
Karlyle failed to present any evidence to decrease the amount of restitution ordered or to show the original purchase price for items in “new” condition would be inappropriate. Moreover, the restitution awarded did not amount to a windfall to Blackburn. The district court did not abuse its discretion with its restitution order.
Affirmed.