Opinion
No. 106,219.
2012-12-21
STATE of Kansas, Appellee, v. Michael BARTON, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Barton pled guilty to two counts of burglary and one count of theft after he unlawfully entered a pharmacy associated with a medical clinic in Wichita, Kansas. During the burglary, Barton stole a pill bottle. As part of his sentencing, an evidentiary restitution hearing was held. At the conclusion of the hearing, the district court ordered Barton to pay restitution for damage to the pharmacy in the amount of $11,371.28.
On appeal, Barton contends that substantial competent evidence does not support the district court's finding that he caused damage to the double doors located in the pharmacy's reception area. Barton also asserts the district court erred by awarding restitution equivalent to the replacement cost of the reception area doors rather than the fair market value of the doors prior to his crime. Finding no error in the district court's restitution ruling, we affirm.
Factual and Procedural Background
On December 20, 2010, Barton pled guilty, pursuant to a plea agreement, to two counts of burglary and one count of misdemeanor theft. These crimes were the result of Barton's unlawful entry into the pharmacy on May 23, 2010.
On February 25, 2011, the district court sentenced Barton to 24 months' probation with an underlying prison term of 22 months. Under the plea agreement, Barton agreed to “pay restitution in an amount to be determined.” At sentencing, the State requested restitution in the amount of $11,271.28. In response, Barton requested additional time to review the State's receipts and the claimed damage to the pharmacy. The district court scheduled a restitution hearing for March 16, 2011.
At the hearing, John Baldwin, the facilities manager for the medical clinic, testified on behalf of the State. Baldwin testified that on May 23, 2010, he arrived at the pharmacy shortly after the burglary was reported and while police were at the crime scene.
According to Baldwin, the burglar entered the facility through a window and, once inside, broke through the doors leading to the reception area of the pharmacy, attempted to break into a computer room, and broke through the drywall in a supply closet to gain access to the pharmacy. Baldwin observed, “[Q]uite a bit of damage [was] done to the building.” In particular, the outside window was shattered, the doors leading to the reception area of the pharmacy were inoperable, i.e., the glass “on each side was shattered ... and the lock was busted and the hinges were screwed up,” the door handle to the computer room was “smashed,” and there was a significant hole in the supply closet.
Baldwin immediately arranged to have the damage repaired by contracting with Lewis Street Glass, the Wichita Key Company, the Edelman and Lyon Door Company, and the Engineered Door Products Company. According to Baldwin, the repair for the damage to the facility was $11,271.28. Additionally, Baldwin testified that he personally repaired the drywall in the supply closet for about $100.
Barton testified on his own behalf. He acknowledged that he was responsible for the burglary and damage to the window facing the outside of the facility, the handle to the computer room door, and the drywall in the supply closet, but he denied damaging the reception area doors. In fact, according to Barton, he “didn't touch any doors.”
After considering the conflicting testimony and reviewing the State's exhibits and the parties' arguments, the district court found that Barton had caused the assorted property damage to the pharmacy and the restitution amount requested by the State was reasonable. Barton was ordered to pay restitution of $11,371.28. The district court judge explained:
“Well, it seems to me when you're committing an act towards the evening and it's getting dark out, and for whatever reason you're after the pharmaceuticals, I don't know what [Barton's] state of mind was, I don't know how he could have kept track of what damage he did and what he didn't do. I just think that when you commit these crimes and break and enter and destroy property, that any damage that has occurred, the defendant ought to be responsible for it.”
After the district court announced its ruling, Barton's counsel requested a reduction in the amount of restitution “to a more reasonable accommodating sum” because Barton denied causing all of the damage and his earnings placed him “basically at [the] poverty level.” The district court denied the request.
Barton filed a timely appeal of the restitution order.
The District Court's Ruling that Barton Damaged the Pharmacy Doors
Barton contends that substantial competent evidence does not support the district court's conclusion that he caused the damage to the double doors in the pharmacy's reception area.
The restitution order in this case is governed by K.S.A.2009 Supp. 21–4603d(b)(1), which directs a sentencing court to award restitution in an amount including, but not limited to, the “damage or loss caused by the defendant's crime.” Additionally, K.S.A. 21–4610(d)(1), requires sentencing courts to order, as a condition of probation, the defendant to “[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime ... unless the court finds compelling circumstances which would render a plan of restitution unworkable.” See State v. Chambers, 36 Kan.App.2d 228, 240–41, 138 P.3d 405,rev. denied 282 Kan. 792 (2006). Based upon these statutes, our Supreme Court has concluded that a restitution award “ ‘depend[s] on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages.’ [Citation omitted.]” 36 Kan.App.2d at 241;accord State v. Goeller, 276 Kan. 578, 580–81, 77 P.3d 1272 (2003).
Appellate courts review a district court's factual finding of causation linking the crime and the victim's loss under a substantial competent evidence standard. State v. King, 288 Kan. 333, 354–55, 204 P.3d 585 (2009). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).
Barton contends the State presented insufficient evidence to prove he was responsible for the damage to the reception area doors because “the State merely presented one witness, Mr. Baldwin.” Barton asserts that his own testimony sufficiently countered Baldwin's testimony because not only did he emphatically deny damaging the doors, he told the court he “didn't touch any doors.” As noted by the State, however, appellate courts, when reviewing factual findings, do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Fewell, 286 Kan. 370, Syl. ¶ 2, 184 P.3d 903 (2008).
Our independent review of the record convinces us the State proved by substantial competent evidence that Barton damaged the pharmacy's reception area doors during the commission of the burglary. Baldwin testified that he observed the damage to the building on the night of the burglary, and he refuted defense counsel's suggestion that the police damaged the doors in an attempt to access the pharmacy. Baldwin explained that although the pharmacy was closed when the burglary occurred, a maintenance employee was cleaning the building when the security alarm activated. This employee was able to provide the officers access to the pharmacy.
Moreover, Barton admitted that he was responsible for the burglary and the damage to the computer room door and the drywall in the supply closet. According to Baldwin, the burglar had to go through the double doors leading into the reception area of the pharmacy in order to gain access to the computer room, supply closet, and pharmacy. For his part, Barton, did not explain how he managed to access this area without breaking down or touching the only doors that led to this portion of the building. Barton's first claim of error is without merit.
The District Court's Ruling Regarding the Amount of Restitution
For his second issue on appeal, Barton contends the district court erred by awarding restitution for the replacement cost of the doors rather than the fair market value of the doors before they were damaged.
Although the district court also ordered that Barton make restitution for the broken window, computer room door, and drywall, Barton limits his argument on appeal to the pharmacy's reception area doors. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Accordingly, we will limit our analysis to the reception area doors.
At the restitution hearing, Baldwin explained that the two doors were damaged beyond repair and had to be replaced, and due to the “unusual” size of the doors, the replacement doors had to be custom built, at an additional cost, because “the dimensions were not that of a typical door.” Moreover, because the replacement qualified as a remodel, the doors had to be upgraded to include a “panic bar and master trip,” a “header,” and additional metallic features due to City regulations that required new or remodeled structures to be in full compliance with the Americans with Disabilities Act (ADA). Baldwin testified that the original doors were not ADA compliant, and “when the City came in and inspected [the facility], they said when you do any type of remodel or whatever, you have to go ahead and comply [with the] ADA.” According to Baldwin, the replacement and upgrade of the reception area doors cost $9,920.37. The district court found that the restitution amount requested by the State was reasonable.
On appeal, Barton contends the district court erred by awarding restitution equal to the replacement cost of the doors, which included the cost to custom build new doors and make ADA compliance upgrades, rather than the fair market value of the doors prior to being damaged. The State counters that Barton failed to preserve this issue for appellate review and, alternatively, because the double doors lacked “a calculable fair market value,” the district court was fully entitled to consider other factors in determining restitution, including the replacement cost of the doors.
Before addressing the merits of Barton's arguments, it is necessary to determine whether he properly preserved this issue for appellate review. As the State asserts, Barton did not challenge the manner in which the district court calculated its restitution figure below; “[r]ather, his sole focus was trying to convince the [district] court that he did not touch the doors.” Generally, issues not raised before the district court may not be raised on appeal. Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009). Barton concedes he did not raise this issue before the district court.
Our Supreme Court has recognized three exceptions that allow an appellate court to consider an issue for the first time on appeal:
“(1) The newly asserted theory involves only a question of law arising on proved or admitted facts and the issue is finally determinative of the case; (2) resolution of the question is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court reached the right conclusion but relied on the wrong ground or assigned a wrong reason for its decision.” 288 Kan. at 125.
Barton claims the first two exceptions are applicable to this case.
With respect to the first exception, Barton argues that the manner in which the district court calculated the appropriate amount of restitution involves solely an issue of law that is finally determinative of the case because “there are two statutes which control this issue, namely, K.S.A. [2009 Supp.] 21–4603d and [K.S.A.] 21–4610.” Yet, this issue does not arise on proved or admitted facts; to the contrary, whether the district court should have awarded restitution in an amount equivalent to the fair market value of the reception area doors depends upon an issue of disputed fact, i.e., whether the reception area doors had a fair market value in the first place. See State v. Moloney, 36 Kan.App.2d 711, 715, 143 P.3d 417,rev. denied 282 Kan. 794 (2006).
The State contends that the double doors lacked “a calculable fair market value” and, as such, the district court was entitled to base the restitution amount upon “other factors related to a reasonable value of the property.” Barton, on the other hand, claims the double doors are items of business property which “would have had an ascertainable market value.”
Due to Barton's failure to challenge the district court's use of the doors' replacement cost as the proper measure of damages, the record is silent regarding whether or not the doors had a readily ascertainable fair market value. As a result, neither party had an opportunity to present evidence or arguments to the district court, and the district court did not have an opportunity to make a ruling. Quite simply, the first exception to the general rule precluding appellate review is not applicable to this case.
With regard to the second exception, Barton asserts that resolution of this issue is necessary to serve the ends of justice and to prevent a denial of his fundamental rights because “restitution is part of his sentence.” As explained by our Supreme Court in State v. Ortega–Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 (2008), in order for this court to determine if justice demands resolution of an issue, it must find that reversible error occurred. On some occasions, the error will be uncontroverted and the only question remaining will be the seriousness of the error itself. In other cases, resolution of another issue before the court will “preclude or preordain the outcome ... and answer the inquiry of whether justice demands resolution.” 287 Kan. at 160. Yet, in some cases—such as this one—an appellate court will only be able to determine if justice demands resolution by examining whether it is possible to analyze the merits of the issue based on the record before the court. See 287 Kan. at 160.
In Ortega–Cadelan, our Supreme Court suggested that inherently factual issues do not fall within the ends of justice exception because in such circumstances, had the alleged error been brought to the attention of the district court, it is highly probable that the necessary facts would have been made a part of the record of the proceeding. See 287 Kan. at 161. As explained above, resolution of Barton's challenge to the measure of restitution involves both factual and legal questions. Similar to Ortega–Cadelan, had Barton raised this issue below, the district court could have entertained arguments regarding whether it is possible to ascertain the fair market value of the double doors. Accordingly, the second exception is inapplicable in this case.
We conclude that Barton failed to properly preserve this issue for appellate review because he raised this argument for the first time on appeal and none of the exceptions allowing for consideration of newly asserted legal theories applies in this case.
Assuming Barton had preserved this issue, we are not persuaded his argument has merit. Sentencing courts have substantial discretion when ordering restitution; thus, appellate courts review the district court's determination of the amount of restitution and the manner in which it is made to the aggrieved party under an abuse of discretion standard. State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002). A judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Property crime victims are only entitled to restitution in an amount equal to their actual loss. See Hunziker, 274 Kan. 655, Syl. ¶ 9;State v. Phillips, 45 Kan.App.2d 788, 795, 253 P.3d 372 (2011). “ ‘Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination of restitution must be based on reliable evidence which yields a defensible restitution figure.’ [Citation omitted.]” Hunziker, 274 Kan. at 660.
Kansas cases have established rules for determining restitution in property crime cases involving the loss of or damage to personal property. See State v. Smardo, No. 101,194, 2009 WL 2506268, at *3 (Kan.App.2009) (unpublished opinion). When personal property is damaged and the property can be restored to its previous undamaged condition, “the measure of restitution is the reasonable cost of repairs plus a reasonable amount for loss of use of the property while repairs are made.” Phillips, 45 Kan.App.2d at 795. When damaged property cannot be repaired, “the amount of restitution is the difference between the fair market value of the property immediately before it was damaged and the fair market value after it was damaged.” 45 Kan.App.2d at 795. In either circumstance, however, “ ‘the restitution amount should not exceed the reasonable market value ... immediately before the damage.’ “ 45 Kan.App.2d at 795. Finally, in situations where an item of personal property has “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.” (Emphasis added.) Maloney, 36 Kan.App.2d at 715.
Both Barton and the State focus on the applicability of these rules relating to personal property. Neither Barton nor the State acknowledge the fact that the reception area doors are more akin to real property than personal property.
No specific formulas have been developed for calculating the value of real property partially damaged by a defendant. See State v. Reynolds, No. 91,737, 2005 WL 1277946, at *3 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 990 (2005); Smardo, 2009 WL 2506268, at *3. Notably, in Smardo a panel of our court found the rules pertaining to personal property are equally applicable in real property cases. As a result, our court applied these rules to the valuation of a damaged barn. 2009 WL 2506268, at *3.
However, while an entire real property structure such as a barn or house may be susceptible to valuation under these rules, the valuation of doors attached to real property is more difficult. In Reynolds, a panel of our court concluded that the replacement/repair cost for such property “constituted a fair starting point from which to assess an amount for restitution” as long as the ultimate award is a “defensible figure ... based upon reliable evidence.” 2005 WL 1277946, at *3–4.
The Reynolds approach makes sense in this case. Although Barton deprived the district court of the opportunity to fully consider whether the doors had an ascertainable fair market value, it is unlikely any such value could be determined since the doors were building materials or fixtures incorporated into the real estate. In fact, according to Baldwin, the doors were actually unique to the pharmacy, as they were an “unusual” size and their “dimensions were not that of a typical door.” Given these circumstances, the determination of a fair market value seems especially speculative. Accordingly, the verified replacement cost of the doors constituted a reasonable measure of damages to award as restitution. See Reynolds, 2005 WL 1277946, at *3–4.
Baldwin testified to the necessity of replacing the doors. Significantly, at the restitution hearing, Barton did not object to the reliability of Baldwin's testimony or the documentary evidence supporting the costs expended in replacing the doors. He also did not complain that the replacement costs were an improper measure of damages or were an unreasonable amount. Under these circumstances, the district court's order is certainly defensible, and we can find no error in the district court's restitution order.
Affirmed.
* * *
McANANY and MARQUARDT, JJ., concurring.
We concur with the final disposition of this case. But because, as the majority points out, the issue regarding the amount of restitution was not preserved for appeal and none of the three exceptions applies to permit us to consider the issue on appeal, we would not address the issue.