Opinion
No. 108,375.
2013-07-12
STATE of Kansas, Appellee, v. Lyle E. JACKSON, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lyle E. Jackson appeals from a portion of the district court's order directing him to pay $4,822.59 in restitution following his conviction for residential burglary. Specifically, Jackson contends the district court abused its discretion in finding the fair market value of a boiler and several radiators taken was $1,715. For the reasons stated below, we affirm.
Facts
In May 2011, Jackson pled no contest to one count of residential burglary. In exchange, the State agreed to dismiss related charges of nonresidential burglary and theft. Jackson also agreed to pay restitution as requested and verified. All the charges arose out of the April 2011 burglary of an older home undergoing renovation. Various tools, wiring, extension cords, and other items were stolen or damaged. Among the items taken were a boiler and three radiant heaters.
At the sentencing hearing, the court ordered Jackson to serve 24 months' probation through community corrections, with an underlying sentence of 13 months' incarceration. The court also ordered Jackson to pay restitution but allowed the parties 30 days to determine the proper amount for restitution.
After a variety of delays, the court held restitution hearings in April 2012. The homeowner testified that the home was built in 1926, and he purchased it in 2011 in order to restore its charm and make it his home. Although the home was in an unlivable condition when he purchased it, the homeowner testified he had been told when he purchased it that the whole radiant heating system was functional.
The owner testified that he had tried, but had been unsuccessful, in his attempt to recover the boiler and radiant heaters that were actually taken from his home. Thereafter, the owner explored replacement options and determined it would cost $580 to purchase two used radiant heaters over eBay and $500 to purchase a century cast iron steam radiator over eBay. In addition, the owner determined it would cost $2,350 to purchase a new boiler with the same BTU performance as the stolen boiler. According to an antique dealer with whom he consulted, however, it would cost more than $2,350 to purchase a historically authentic boiler. At a later hearing, Jackson called as a witness a scrap metal dealer, who testified that he had purchased the stolen property from Jackson for $30 or $40. In his testimony, the dealer acknowledged that the value of such items as scrap metal is typically less than the resale or retail value.
After hearing the evidence and the parties' arguments, the court previewed its opinion by stating that the scrap value of the items would not fairly compensate the victim for the loss of property. The court also noted that in calculating the value of the loss in this case, replacement cost should be depreciated for the older items. The court advised the parties that it would review the numbers and issue an order. The court ultimately issued an order directing Jackson to pay the homeowner a total of $4,822.59 in restitution. Of that total restitution amount, the court awarded $1,715 for the value of the missing boilers and radiators. The court reasoned that the fair market value was higher than the scrap metal value Jackson received when he sold the items but less than the replacement cost of $3,430. Based on the evidence, the court found the fair market value was $1,715 or one-half of the replacement cost.
Analysis
The sole issue presented on appeal is whether the district court abused its discretion in valuing the stolen radiators and boiler at a sum in excess of the fair market value of the items.
The amount of restitution and manner in which it is made to a victim is to be determined by the court exercising its judicial discretion. Consequently, the appellate courts apply an abuse of discretion standard of review. State v. Phillips, 45 Kan.App.2d 788, 793, 253 P.3d 372 (2011). A district court abuses its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). 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. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Restitution is statutory. The applicable Kansas statutes addressing criminal restitution, K.S.A.2010 Supp. 21–4603d(b)(1) and K.S.A. 21–4610(d)(1), permit the trial court to impose restitution for “damage or loss caused by the defendant's crime.” 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. Still, the court's determination of restitution must be based on reliable evidence that yields a defensible restitution figure. State v. Casto, 22 Kan.App.2d 152, 154, 912 P.2d 772 (1996).
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 the purchase price, condition, age, and replacement cost of the property. 36 Kan.App.2d at 715.
With respect to the challenged portion of the restitution award in this case, the district court awarded damages for an amount of money that fell between the victim's testimony regarding replacement costs and the scrap metal value of the property. Although Jackson argues there was no evidence the items were in working condition, the victim testified that he was advised in early 2011 that the entire heating system was operational. Likewise, the victim testified that he purchased the home because of its period charm, including the radiant heating system. Even Jackson's witness, the scrap metal dealer, acknowledged that the scrap metal price would typically be less than the resale or retail price of such items.
Because the items in dispute do not have a readily determined fair market value, the district court properly considered the unusual nature of the property as well as the cost of replacement as factors in its determination of the fair market value of the property at issue. For these reasons, Jackson has failed to establish the district court abused its discretion in determining this portion of the restitution order.
Affirmed.