Opinion
Court of Appeals No. A-9306, No. 5078.
June 14, 2006.
Appeal from the District Court, Third Judicial District, Anchorage, Mary Anne Henry, Judge. Trial Court No. 3AN-04-8238 CR.
J. Adam Bartlett, Anchorage, for Appellant.
Daniel Cheyette, Assistant District Attorney, Leonard M. Linton, District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
As part of a plea agreement, Bobby D. Kirkwood was convicted of first-degree criminal trespass and fourth-degree assault. He agreed that the district court could order restitution, but reserved the right to contest the amount of damages. After a hearing, he was ordered to pay $465 for three doors and a shelf that were damaged during the incident. In this appeal, he challenges the district court's restitution order. For the reasons set forth below, we affirm the district court's decision.
AS 11.46.320(a)(2) and AS 11.41.230(a)(3), respectively.
Facts and proceedings
On August 22, 2004, at about 3:19 in the morning, a woman called the Anchorage Police Department to report that two unknown men had entered her apartment. While the police were en route to the residence, they were informed that the men had left the apartment and were in a white Ford Escort. The officers saw the Escort backing out of the driveway when they arrived at the townhouse. They stopped the car, and found two men inside. An officer spoke with the driver, Kirkwood, who claimed that a woman had called and invited him to the residence and that he had let himself in. He said that once inside, he encountered a woman he did not know.
The police went into the residence and found that the front door was broken, and that it looked as if the door had been kicked in. The police also saw fresh damage to the door leading from the living room to the staircase and on the sill upstairs. There was stereo equipment on the ground and a television on the living room floor. Kirkwood later admitted to the police that he had forced the front door open.
The woman who called the police lived in the upstairs apartment of the townhouse. When the police responded to her call, they forced open two locked bedroom doors in the apartment while searching for other suspects or victims. These doors were damaged when the police forced them open. The woman's roommate was not at home, but arrived later while the police and Kirkwood were still present. She told the police that she had met Kirkwood a few months earlier at a party, but had not given him permission to enter her apartment.
Kirkwood was charged with first-degree burglary, fourth-degree assault, and driving while license suspended or revoked. Kirkwood and the State reached a Criminal Rule 11 agreement. Based on this deal, Kirkwood entered no contest pleas to first-degree criminal trespass and fourth-degree assault. He agreed to a 9-month sentence with no suspended time for each conviction, to be served consecutively. Kirkwood agreed to pay restitution with the amount to be determined later when the State provided documentation. District Court Judge pro tempore Mary Anne Henry accepted the deal. Later, Judge Henry presided over the hearing to determine the amount of restitution. Based on testimony from the woman Kirkwood had encountered in the apartment, and the landlord whose property had been damaged, Judge Henry ordered Kirkwood to pay the landlord $465. She found that Kirkwood was responsible not only for the front door he had damaged when he kicked it open, but for the doors that the police had damaged when they responded to the report. She ordered Kirkwood to pay the replacement value of these three doors, and to pay to repair a damaged shelf.
Kirkwood appeals the restitution order. He claims that he should not be responsible for the two doors damaged by the police. He also claims that it was error to order him to pay the full replacement value of the doors and shelf; he argues that their value should have been depreciated because they were at least twelve years old.
Discussion
Was Kirkwood responsible for damage done by the police when they searched the apartment?
Kirkwood contends that Judge Henry erred when she found that he was responsible for damage done by the police when they searched the locked bedrooms of the apartment he had illegally entered.
Under AS 12.55.015(a)(5) and AS 12.55.045(a), Judge Henry had the authority to order Kirkwood to make restitution to his victims. When determining the amount of restitution, Judge Henry was required to "take into account the . . . public policy that favors requiring criminals to compensate for damages and injury to their victims."
AS 12.55.045(a)(1).
Judge Henry found that even though the police had already apprehended Kirkwood and his cohort outside the residence, they were justified based on the information they had in forcing open the locked doors in the upstairs residence to ensure that the tenants were safe. She found that Kirkwood's criminal conduct was the cause of the damage done by police during their response to a "potentially very dangerous situation . . . a break-in with a victim present in the home."
On appeal, Kirkwood claims that the police action was "independent" from his criminal conduct. He argues that the police had no reason to search the apartment because they were responding to a call that two men were breaking into a residence and they apprehended the two men outside the residence. But Judge Henry found that even with the two men in custody, the police had a valid concern about the safety of the tenants.
The police search of the apartment was a foreseeable consequence of Kirkwood's illegal entry. The record thus supports Judge Henry's finding that Kirkwood was responsible for the damage to the interior doors. Accordingly, we find no error.
Did Judge Henry err when she ordered Kirkwood to pay the replacement value of the damaged property?
Kirkwood claims that Judge Henry erred by ordering him to pay the full replacement value of the damaged doors and shelf. He argues that Judge Henry should have depreciated the value of the damaged property because it was at least twelve years old. He also argues that it was the State's burden to prove the value of the property at the time it was damaged.
At the hearing, the landlord testified that a shelf and three doors and their frames were damaged as a result of Kirkwood's illegal entry. The landlord acknowledged that the doors came with the townhouse when he bought it twelve years earlier. The landlord further testified that he had calculated the replacement estimates of the damaged doors by pricing new doors and frames at a local home improvement store. He priced the same type of doors that had been damaged, and "[d]id not upgrade or go downward." Based on these prices, he testified that it would cost $175 to replace the damaged entry door, $90 to replace one of the bedroom doors, and $150 to replace the other bedroom door. He also testified that it would cost $50 to repair the damaged shelf.
Relying on Dayton v. State, Kirkwood argues that the State was required to prove the value of the property at the time Kirkwood damaged it. He claims that the Dayton decision "establishes that . . . the trial court should hold the defendant liable only for the actual loss incurred by the victim." Hence, he argues that Judge Henry erred when she ordered Kirkwood to pay replacement value. Kirkwood made this same argument at the restitution hearing. After reviewing the statute authorizing restitution and this court's decision in Dayton, Judge Henry rejected Kirkwood's argument.
78 P.3d 270 (Alaska App. 2003).
In Dayton, the defendant destroyed his victim's computer. The trial court ordered the defendant to pay restitution of $2,416 for the computer hardware — the original cost of the hardware — even though the victim had testified that the market value of the equipment was lower. The victim explained that because computer technology had advanced since she bought her computer, her system was not worth as much as she had originally paid for it. She estimated that she could have sold her system — hardware and software combined — for $3,500 before it was destroyed. Ultimately, the trial court awarded a combined restitution of $4,066 for the computer hardware and software.
Id.
Id.
Id.
Id.
We found based on the evidence presented at the hearing that this restitution award was too high and reduced it to the value estimated by the victim — $3,500. We did not rule that the trial court was required to depreciate the value of the damaged property or that the State was required to prove the value of the property at the time it was damaged. Rather, we held that, based on the evidence provided by the victim, the record did not support the court's restitution order.
Id.
Judge Henry reviewed Dayton before she made her decision. She found that "depreciation of a computer and a car are easy to calculate. Depreciation of a door is not." She also noted that public policy favors requiring criminals to compensate for damage to their victims.
Here, the record supports the restitution ordered. There was no evidence that the doors damaged as a result of Kirkwood's offense had substantially decreased in value over twelve years. Nor was there any evidence that a typical door depreciates in any significant way over time, or that there is a market for used doors where willing buyers can purchase used doors from willing sellers.
See Fee v. State, 656 P.2d 1202, 1205 (Alaska App. 1982) (citing Nukapigak v. State, 562 P.2d 697 (Alaska 1977)) (trial court may require defendant to pay actual damages suffered by victim and may rely on victim's testimony to establish value of damaged property when there is no conflicting evidence).
See People v. Stafford, 93 P.3d 572, 575-76 (Colo.Ct.App. 2004) ("[T]he award of a reasonable replacement value is appropriate when the victim demonstrates that he or she will replace an item that is not readily replaceable at a fair market value cost.").
The landlord testified that it would cost him approximately $465 to replace the damaged doors and to repair the damaged shelf. He calculated the replacement estimates by pricing doors at a home improvement store. His estimate of the shelf repair was based on the materials he would need and the time he would spend making the repair. Unlike in Dayton, where the victim testified about the market value of her property at the time it was destroyed, there was no evidence in this case that the damaged property could have been replaced at a cheaper price, or repaired for less money.
Kirkwood also argues that the landlord had already been compensated for his damages by his tenants' $1100 damage deposit. But based on the landlord's testimony, Judge Henry found that this money was not used to cover the damages caused by Kirkwood. The landlord's testimony supports this finding. The record shows that the $1100 damage deposit was used to clean the apartment and to compensate for damages caused by the tenants when they broke the lease and vacated the apartment after Kirkwood's illegal entry.
We conclude that Judge Henry did not err when she ordered Kirkwood to reimburse the landlord $465 to replace the property that was damaged as a result of Kirkwood's criminal activity.
Conclusion
The decision of the district court is AFFIRMED.