Opinion
No. 5-162 / 04-0696.
March 31, 2005.
Appeal from the Iowa District Court for Iowa County, Douglas S. Russell, Judge.
Alicia Kay Stull appeals from the trial court's restitution order. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Lewis McMeen, County Attorney, and Tim McMeen, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
On July 3, 2003, the State charged Alicia Kay Stull, along with three other individuals, with second-degree arson in violation of Iowa Code sections 712.1 and 712.3 (2003) (Count I), and third-degree burglary in violation of Iowa Code sections 713.1 and 713.6A (Count II), following a fire at the old Ladora school building in Ladora, Iowa, on June 13, 2003. The trial information was amended to further charge Stull with first-degree criminal mischief in violation of Iowa Code sections 716.1 and 716.3 (Count III), and reckless use of fire in violation of Iowa Code section 712.5 (Count IV).
On September 18, 2003, Stull entered Alford pleas to Counts III and IV, and the State dismissed the remaining counts. At sentencing the court entered a deferred judgment on Count III and ordered that Stull make $100,000 restitution to Frederic Kinzenbaw, the owner of the building. Stull received a thirty-day suspended jail sentence and a $250 fine under Count IV.
On appeal, Stull contends the "court erred in determining the amount of restitution."
II. Standard of Review
We review the trial court's restitution order for correction of errors of law. State v. Paxton, 674 N.W.2d 106, 108 (Iowa 2004). We are bound by the trial court's findings of fact so long as they are supported by substantial evidence. Id. "Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion." State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).
III. Restitution Order
In Iowa, restitution is mandatory in all criminal cases in which the defendant pleads guilty or is found guilty. Id.; see also Iowa Code § 910.2. Restitution is defined as the payment of pecuniary damages, which encompasses all damages not paid by an insurer, to a victim of the offender's criminal activities. Iowa Code §§ 910.1(3)-(5). A restitution order is not excessive if it bears a reasonable relationship to the damages caused by the offender's acts, as demonstrated by a preponderance of the evidence. See Bonstetter, 637 N.W.2d at 165-66.
Pecuniary damages exclude the recovery of damages for pain, suffering, mental anguish, or loss of consortium. Iowa Code § 910.1(3).
We initially note that Stull does not contest the causal relationship between her criminal acts and the damage to Kinzenbaw's building. Instead, she contends the trial court's restitution award of $100,000 is unsupported by substantial evidence in the record. She believes the fair market value of Kinzenbaw's property is the tax-assessed valuation of $4740 and accordingly, the restitution order should reflect that valuation.
Restitution damages are to be determined in the same manner as in a civil case. State v. Watts, 587 N.W.2d 750, 752-53 (Iowa 1998). As long as the restitution award is within a reasonable range of the evidence, the "fact finder's method of calculating damages usually inheres in the award itself and is not subject to challenge." Id. at 752. The rule is that "if the uncertainty lies only in the amount of damages, recovery may be had if there is proof of reasonable basis from which the amount may be inferred." Id. (citing Natkin Co. v. R.F. Ball Constr. Co., 255 Iowa 1156, 1167, 123 N.W.2d 415, 422 (1964)). In its April 2, 2004, restitution ruling, the trial court found:
Mr. Kinzenbaw bought the property in 1986 for one dollar. It was not insured at the time of fire. The current assessed value of the property according to the Iowa County Assessor is $4,740 for the buildings. The assessor testified the fair market value as of January 1, 2003, was based on a private firm appraisal made in 2002 which assessed $4,740 value for the buildings and $14,530 value for the land on which they are placed.
Before the fire, one room of the school building was used as commercial space and three or four other rooms used for storage. Most of the building was empty. The building was structurally sound and weather-tight. It had operating utilities including electricity, heat and water. The fire completely destroyed 40% of the roof leaving the building open to the weather. The upstairs walls and floor and the remaining roof structure are now unsound and need to be repaired if the building is to be restored to its former state and uses. In addition to the damage caused by the fire itself, additional damage was caused by the approximately 300,000 gallons of water used to extinguish the fire. It is clear the damage to the building is casually connected to the criminal acts for which the Defendants entered guilty pleas.
Steve Van Nevel, an experienced restoration contractor, prepared an estimate of the repair costs to the building. The cost of repairs for the fire and water damage would be $116,996 to put the building in a "maintainable condition." This would not restore it to a habitable condition or provide for electrical, plumbing, painting or aesthetic repairs. It appears to be a reasonable and conservative estimate of the cost of restoration or repair. Mr. Van Nevel also testified that the rough estimate of the cost of the demolishing the property and removing the rubble would be $60,000.
Mr. Kinzenbaw testified that before the fire the building was habitable and functional with utilities in place and operating. He stated he had put $40,000 into the school building to improve it and maintain it over the years. He stated that the county had assessed the building at $40- to $50,000 several years ago but he requested the assessor to lower the assessed value so he could save on real estate taxes. Mr. Kinzenbaw testified that the fair market value of the building is $100,000 before the fire. His earlier statement contained in the State's Statement of Pecuniary Damages that the building was worth $75,000 was only a "shoot from the hip" estimate according to his sworn testimony.
The Defendants presented no evidence as to the reasonable cost of repair of the building or the cost of demolition. The Court finds that the State has established by a preponderance of the evidence that the reasonable cost of repair is $116,996 and the cost of demolition is $60,000.
. . . .
Based on review of all the facts presented in the record, the Court accepts Mr. Kinzenbaw's testimony that the building has a fair market value of $100,000. Because the reasonable cost of repair exceeds the fair market value, Mr. Kinzenbaw is entitled to restitution for the lower amount only.
"The general rule in Iowa for repairs or replacement is the fair and reasonable cost of replacement or repair, but not to exceed the value of the property immediately prior to the loss or damage." Vlotho v. Hardin County, 509 N.W.2d 350, 357 (Iowa 1993) (quoting State v. Urbanek, 177 N.W.2d 14, 16 (Iowa 1970)). There is no evidence indicating that Steve Van Nevel's restoration estimate of $116,996 was excessive, and as noted by the trial court, Kinzenbaw testified the fair market value of the building was $100,000 before the fire. See State v. Savage, 288 N.W.2d 502, 504 (Iowa 1980) ("The general rule is that an owner may testify as to actual value without a showing of general knowledge of market value."); see also State v. Boykin, 217 N.W.2d 218, 220 (Iowa 1974) (stating "an owner is competent to testify concerning the value of his property"). Kinzenbaw's testimony is further supported by the fact that his insurance agent thought the value of the building for insurance purposes could be anywhere from $200,000 to $2,000,000 when he bought it. Moreover, Kinzenbaw spent approximately $40,000 improving the building over the years. Because the restitution award is well within a reasonable range of the evidence, we accordingly affirm the decision of the trial court and adopt its reasoning as our own.