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State v. Hafner

Court of Appeals of Kansas.
Oct 5, 2012
286 P.3d 239 (Kan. Ct. App. 2012)

Opinion

No. 107,196.

2012-10-5

STATE of Kansas, Appellee, v. Ethyn Paul HAFNER, Appellant.

Appeal from Dickinson District Court; Benjamin J. Sexton, Judge. John Purvis, of Purvis Law Office, LLC, of Abilene, for appellant. Darryl E. Hawkins, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Dickinson District Court; Benjamin J. Sexton, Judge.
John Purvis, of Purvis Law Office, LLC, of Abilene, for appellant. Darryl E. Hawkins, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.

MEMORANDUM OPINION


PER CURIAM.

Ethyn Paul Hafner appeals from the district court's order directing him to pay $2,500 in restitution following his misdemeanor theft conviction for stealing a pickup truck in 2011. Although the district court held a restitution hearing at which evidence was presented, the State failed to present any evidence of the value of the pickup truck at the time it was stolen. Instead, the State presented evidence that the pickup truck had a value of $2,500 at the time the victims purchased it in 2007. Thus, we vacate the restitution order for insufficiency of evidence and remand the matter to the district court for further proceedings.

Facts

Hafner was charged in Dickinson County District Court with one count of felony theft in a complaint filed in August 2011. The information alleged Hafner exerted unauthorized control over a 1989 Chevy pickup truck worth more than $1,000 with the intent to permanently deprive the owners of the property. The charge was later amended to allege that the 1989 pickup truck was worth less than $1,000, and the theft charge was reduced to a class A misdemeanor.

Hafner pled guilty to the amended charge. In doing so, he acknowledged that the State would seek restitution for the value of the stolen vehicle as well as other related damages. Hafner was subsequently sentenced in this case and another case at the same time. During the portion of the hearing related to this case, the State presented evidence in support of the claim for restitution.

Specifically, the State presented the testimony of Taylor Spooner, the owner of the pickup truck. Spooner testified that she and her mother paid $2,500 to purchase the truck in 2007. In addition, the bill of sale from the transaction was presented. At the time of the purchase, the pickup truck had about 80,000 miles on the odometer.

In early 2011, Spooner allowed Hafner to take possession of the pickup truck in order to make some mechanical repairs. A few months later, the truck was found in a salvage yard with broken windows and dents. Additionally, the bed of the truck and the tires had been removed.

Spooner testified that she had received a quote in the amount of $1,012 from the Ottawa Firestone store for new tires and tire installation. She further testified that she took the pickup to the Manhattan Firestone store and had the new tires installed shortly before the theft occurred. However, she did not have a receipt to show that new tires had actually been installed on the pickup truck.

After hearing the evidence, the district court sentenced Hafner to 12 months' probation with an underlying sentence of 1 year in the county jail. The district court also ordered restitution in the amount of $2,500, which was evidently based on the bill of sale for the purchase of the pickup truck in 2007. The district court declined, however, to order restitution for the installation of the new tires because there was “no proof those items were purchased.” Thereafter, Hafner timely appealed from the court's restitution order.

Analysis

On appeal, Hafner contends the district court erred in assessing $2,500 in restitution. Specifically, Hafner argues that there is insufficient evidence in the record to determine the fair market value of the pickup truck at the time of the theft. We agree.

In a criminal case, the amount of restitution is determined by the district court through the exercise of judicial discretion. See State v. Huniziker, 274 Kan. 655, 660, 56 P.3d 202 (2002). Nevertheless, restitution must be based on reliable evidence. 274 Kan. at 660. Furthermore, it is the State that has the duty to come forward with sufficient evidence to prove the amount of restitution to be awarded. See State v. Cox, 30 Kan.App.2d 407, Syl. ¶ 1, 42 P.3d 182 (2002).

Kansas courts have held that the amount of restitution to be awarded should normally be based on the fair market value of the property at the time of the loss rather than its replacement cost. See State v. Moloney, 36 Kan.App.2d 711, 714, 143 P.3d 417,rev. denied 282 Kan. 794 (2006). If, however, the property involved lacks a calculable fair market value, a restitution amount may be based on other factors. 36 Kan.App.2d at 715. Thus, when fair market value is impossible to calculate, the district court may consider factors, including the purchase price, condition, age, and replacement cost of the property. 36 Kan.App.2d at 716.

A review of the record in the present case reveals that the State failed to present sufficient reliable evidence to support the amount of restitution ordered by the district court. Instead of presenting evidence of the value of the truck at the time of the theft in 2011, the State simply presented evidence of the purchase price of the pickup in 2007. There is no evidence in the record of the condition of the pickup truck at the time of the theft or the number of miles the truck was driven in the 4 years between the time it was purchased and the time it was stolen.

It is undisputed that the pickup truck had mechanical problems in 2011, and it is unclear whether it could even be driven at the time of the theft. Although Spooner claimed the truck had new tires, the district court found insufficient evidence to support a finding that these improvements had actually been made. Likewise, the State failed to ask Spooner to give her opinion of the fair market value of the truck at the time it was stolen.

Accordingly, we conclude that the State failed to present sufficient reliable evidence upon which the district court could reasonably determine the amount of restitution to be awarded. We, therefore, vacate the restitution order and remand this matter to the district court for further proceedings to determine an appropriate amount of restitution.

Vacated and remanded with directions.


Summaries of

State v. Hafner

Court of Appeals of Kansas.
Oct 5, 2012
286 P.3d 239 (Kan. Ct. App. 2012)
Case details for

State v. Hafner

Case Details

Full title:STATE of Kansas, Appellee, v. Ethyn Paul HAFNER, Appellant.

Court:Court of Appeals of Kansas.

Date published: Oct 5, 2012

Citations

286 P.3d 239 (Kan. Ct. App. 2012)