Opinion
111,379 111,380 111,381 111,382 111,383.
04-17-2015
STATE of Kansas, Appellee, v. Scotty Ray BUTTON, Appellant.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, L, and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this consolidated appeal, Scotty Ray Button appeals from a restitution order that was entered after a global plea agreement in five different criminal cases. First, he argues that the cases must be remanded for a determination of the factual circumstances surrounding the recusal of the district court judge originally assigned to the cases. Second, he argues the district court erred in its determination of the restitution he must pay in one of the cases as the result of his crimes. Because Button did not object in the district court to the recusal of the judge and did, in fact, agree that that judge could determine the restitution order, his first issue provides no basis for a reversal. However, we find that the judge included an item twice in his computations which erroneously increased the restitution order by the amount of $39,000 .06 over what it should have been. Because of this error of fact, we reverse and remand the case to the district court with instructions to reduce the restitution amount by the amount of the erroneous increase.
Facts
In 2012, the State charged Button in five different cases with various property crimes in Bourbon County. Button subsequently entered into a plea agreement with the State in order to resolve the cases as well as some additional pending cases against him. The agreement required Button to plead guilty to one count of theft in each of the following cases: 12–CR–271, 12–CR–286, 12–CR–293, and 12–CR–294. He was also required to plead guilty to one count of aiding and abetting burglary in case 12–CR–377. The plea agreement required Button to pay restitution in each case. He agreed that his restitution liability would be joint and several with any codefendants. The district court found him guilty based on his pleas in each case.
The district court held a restitution hearing in case 12–CR–271 on July 17, 2013. That case involved the theft of several items from Clifford Keppen's home including collectible coins, paper money, tools, stock certificates, and other items. At the beginning of the hearing, District Judge Mark Ward noted that Button's sentencing would later take place in front of a different judge, District Judge Steve Montgomery. Button's attorney then stated, “Just for the record, you recused yourself from Mr. Button's case based on the fact that you're acquainted with a victim in some case other than this one.” Judge Ward agreed, and Button's attorney said, “So we don't have any trouble with you hearing restitution in this matter.”
Before hearing any testimony, Button stipulated to restitution amounts he owed for several items taken from Keppen's residence. That included: $28,616.95 for items other than coins and $1,095.15 for supplies relating to the coin collection such as boxes, tubes, and coin folders. He also stipulated that the value of the nickels in Keppen's collection totaled $39,005.25.
That essentially left for determination the value of all the other coins stolen by Button and his codefendants. Keppen was the first to testify to that value. He stated that on the night the theft was discovered, he told the police that his collection was conservatively worth $250,000. Keppen later made a list of all the coins in his collection, some of which were inherited by his father. He then used The Official Red Book, A Guide of United States Coins (Red Book) to determine the value of each coin. The Red Book contains different categories based on the condition of the coins. Keppen used the center value to assign a dollar amount to each coin. He testified that he believed he had coins in his collection some of which were more valuable and some less valuable than the center value he used.
Keppen created an accurate list of the coins in his collection; but due to the time it took to determine the values of each piece of currency, he did not include any of the Canadian coins or paper money he had lost. Keppen arrived at a total value of $792,171.21 for all the stolen coins. He admitted that valuing a coin is very subjective. He also admitted that some of the coins were in coin packages that he had never opened to determine what exactly was inside. However, he explained that his father wrote the precise contents of each coin package on the outside of the package.
Keppen also addressed the value of some Harley–Davidson stock certificates totaling $14,489.50 that had been stolen along with the coin collection. He stated the company had reissued new certificates to him. Consequently, despite the earlier stipulation, the parties apparently agreed the restitution amount for the noncoin items taken from the home should be reduced by $14,489.50.
Next, the defense called John Hill as a witness. Hill was a banker and coin collector. He prepared a report that was admitted into evidence in which he assigned a value of $379,239.16 to Keppen's coin collection. This figure did not include any of the nickels in the collection which Button had stipulated had a value of $39,005.25. At the hearing, he stated that he was concerned Keppen's coins were not professionally graded because the values in the Red Book were based on professionally graded coins. But Hill admitted that he never talked to Keppen about the condition of the coin collection nor did he actually see the collection. He also stated in his report that the grade and value of each coin is very subjective.
After hearing the evidence, the district court ordered that Button and his codefendants were jointly and severally liable for a total of $846,399.06 in restitution. In itemizing that amount, the court specifically ordered the codefendants to pay $792,171.21 based on Keppen's testimony regarding the value of his coin collection, $39,005.25 for the stipulated value of the nickels that Hill did not appraise, $1,095.15 for the coin-related items taken, and $14,127.45 for the stolen noncoin items.
District Judge's Recusal
Button first argues this case must be remanded in order to determine the factual circumstances surrounding Judge Ward's recusal. He asserts the mere fact that Judge Ward recused himself demonstrates potential bias and suggests that his plea and restitution hearings may have been fatally tainted by Judge Ward's failure to recuse himself earlier in the case.
First, the record on appeal indicates that Button did not request Judge Ward's recusal or otherwise challenge Judge Ward's assignment to his case at any time. Generally, issues not raised before the district court cannot be raised for the first time on appeal. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). The only reference to the recusal comes at the beginning of the restitution hearing. Button's counsel noted that he was aware that Judge Ward had recused himself from Button's case because Judge Ward was “acquainted with a victim in some case other than this one.” Defense counsel also specifically stated on the record that Button had no objection to allowing Judge Ward to preside over the restitution hearing. Because Button did not raise any issues below stemming from Judge Ward's recusal, he cannot assert such errors on appeal.
Additionally, Button acknowledges that the record is insufficient for us to review the question of whether any potential bias on the part of Judge Ward could have tainted Button's plea or restitution hearings. For this reason, he asks us to remand his case to the district court in order to establish the facts surrounding Judge Ward's decision to recuse himself. He alleges such a remand is necessary so that he may then have the opportunity to prepare a new appellate brief for this court to meaningfully review his claim. In essence, he is asking us for a remand in order to allow him to attempt to create a record that supports his appeal. The argument asserts that the district court bore the responsibility of providing a record of the facts pertinent to his challenge. However, it is the appellant who has the duty to designate a record on appeal sufficient to establish the claimed error. State v. Walters, 284 Kan. 1, 15, 159 P.3d 174 (2007). Button failed to designate any record relating to Judge Ward's recusal except for his clear assent to Judge Ward presiding over his restitution hearing. There is nothing in the record to support a remand of the case for further findings concerning Judge Ward's recusal.
Amount of Restitution
Button argues the district court erred in ordering him to pay $846,399.06 in restitution because that amount was not supported by the evidence. He contends Keppen overvalued his lost coins to an unreasonable extent and asks us to remand the matter for a new restitution hearing.
We review issues regarding the amount of restitution under an abuse of discretion standard. State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014). As we have stated many times, judicial discretion is abused when an action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Moreover, “[t]he rigidity with respect to proof of value in a civil damage suit does not apply in a criminal setting, but the district court's determination must be based on reliable evidence yielding a ‘defensible restitution figure.’ “ State v. Phillips, 45 Kan.App.2d 788, 794, 253 P.3d 372 (2011) (citing State v. Casio, 22 Kan.App.2d 152, 154, 912 P.2d 772 [1996] ).
In the district court, the State had the burden to present sufficient evidence to justify the amount of restitution sought. See State v. Hall, 297 Kan. 709, 715, 304 P.3d 677 (2013). Nevertheless, 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).
In ordering restitution, courts aim to compensate the victim fairly and also to deter and rehabilitate the defendant. See State v. Hinckley, 13 Kan.App.2d 417, 419, 777 P.2d 857 (1989). With these goals in mind, the restitution award must be supported by the evidence presented. See State v. Jones, No. 106,750, 2012 WL 4121119, at *2–3 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 252 (2013).
Here, Button disputes Keppen's opinion of the value of the coin collection to which he testified to at the restitution hearing. However, property owners are generally considered competent to testify to the value of their property. See Ultimate Chem. Co. v. Surface Transp. Int'l, Inc., 232 Kan. 727, 729–30, 658 P.2d 1008 (1983) ; In re Tax Appeal of Lipson, 44 Kan.App.2d 515, 522, 238 P.3d 757 (2010), rev. denied 292 Kan. 965 (2011). Thus, a property owner's testimony can support a restitution award as long as the testimony was reasonable and uncontested.
Here, Keppen's testimony was contested by Hill, an expert witness called by the defense. But appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Remmert, 298 Kan. 621, 629, 316 P.3d 154 (2014). Both Hill and Keppen agreed that the value of coins is very subjective. After the burglary, Keppen wrote out an accurate list of the coins in his collection that were stolen. He used the middle value found in the Red Book to value each coin. He testified he was familiar with the condition of the coins in his collection and he knew he had some coins that were worth more and some that were worth less than the middle value found in the Red Book.
Hill assigned a substantially lower value to the coins. He used the list provided by Keppen to evaluate the collection. However, he admitted he had never actually seen the collection and he had never spoken to Keppen about the condition of the coins. On appeal, Button asserts that the fact that Keppen assigned a value almost twice as high as Hill to the collection is evidence that Keppen's valuation was unreliable. However, this is merely an invitation for us to reweigh the evidence and pass on the credibility of the witnesses. Under these circumstances, it was not arbitrary or erroneous to rely on Keppen's valuation of the collection, as he was the person most familiar with it and he used the Red Book as a guide for assigning value to the coins. We conclude the district court did not abuse its discretion by relying on Keppen's testimony.
But this does not end the inquiry. The district court ordered a total of $846,399.06 in restitution. To arrive at that figure, it combined Keppen's valuation of his coin collection ($792,171.21), the value of the coin-related items ($1,095.15), the value of the noncoin items ($14,127.45), and the stipulated value of the nickels ($39,005.25). The record indicates that the parties stipulated to the value of the nickels because the defense had no evidence to present relating to their value. For that reason, Button accepted as conclusive Keppen's alleged values of the nickels.
Contrary to the court's calculations, however, it appears clear in the record that Keppen's total valuation of $792,171.21 for the stolen coin collection included the nickels that Button stipulated were worth $39,005.25. Keppen testified that he arrived at this total figure by using a handwritten list of the coins in his collection and the value of each coin. This list was admitted into evidence as State's Exhibit 1 and included a list of the nickels in the collection. Further, he specifically stated he had valued “the pennies, the nickels, the dimes, the quarters, [and] the half-dollars” in his collection. (Emphasis added.) He later confirmed that $792,171.21 was the total value he was requesting in restitution for his coins.
Clearly, the district court accepted Keppen's appraisal instead of Hill's. The $39,005.25 in nickels stipulated to by the parties was an amount included in Keppen's $792,171.21 restitution request, not an amount in excess of that figure. Therefore, when the district court accepted Keppen's valuation of the coin collection as the basis for its final restitution order, it should not have added $39,005.25 to that figure because Keppen's valuation of the collection had already accounted for the nickels. There was no evidence presented at the hearing that would support an order for an additional $39,005.25 in nickels to be added to Keppen's coin collection valuation.
Because the district court in its computations accounted for the nickels twice, it based its restitution order on an error of fact. As such, the order for Button to pay $846,399.06 in restitution amounted to an abuse of discretion. We reverse in part and remand this case to the district court to correct its calculation of restitution in conformance with this opinion.
Reversed inpart and remanded with directions.