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State of Kansas v. Katherine Davis

February 8, 2013

STATE OF KANSAS, APPELLEE,
v.
KATHERINE DAVIS, APPELLANT.



Appeal from Finney District Court; MICHAEL L. QUINT, judge.

The opinion of the court was delivered by: Leben, J.:

SYLLABUS BY THE COURT

In a case in which the defendant stole goods from a retail merchant, the district court does not abuse its discretion in awarding restitution in the amount of the goods' retail value where that was the only value evidence presented and no other evidence convincingly showed that an award of the retail value would have been inappropriate.

Affirmed.

Before GREEN, P.J., LEBEN and ARNOLD-BURGER, JJ.

Katherine Davis stole goods from JC Penney, a retail merchant, and the district court ordered that she pay restitution to the merchant equal to the retail sales price of the items. Davis contends that the court should have awarded restitution only for the amount the merchant paid to buy the goods from its supplier.

But no evidence was presented in this case outlining any value other than the retail price of the goods, and no evidence showed that the recovery of that amount by the retailer would be inappropriate. Kansas statutes and caselaw emphasize that the district court has substantial discretion in determining the amount of restitution, and choosing the retail value of goods stolen from a retail merchant as the value for restitution in these circumstances is within the district court's discretion. We therefore affirm its judgment.

STATUTORY FRAMEWORK

Two similar statutes provide the district court its authority to order a convicted criminal defendant to pay restitution. We cite here to the statutes that were in effect when Davis was sentenced, K.S.A. 2010 Supp. 21-4603d and K.S.A. 21-4610, but the same provisions have found their way into statutes enacted as part of a general recodification of the Kansas criminal laws. See K.S.A. 2011 Supp. 21-6604(b)(1) and K.S.A. 2011 Supp. 21-6607(c)(2).

K.S.A. 2010 Supp. 21-4603d gives the district court general sentencing authority, and this statute provides that along with any other sentence that may be entered, "the court shall order the defendant to pay restitution." K.S.A. 2010 Supp. 21-4603d(b)(1). As to amount, the statute provides that the restitution "shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable."

K.S.A. 21-4610 gives the district court authority to order restitution as part of a probation order. It provides that "the court shall order" that the defendant "[m]ake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime." K.S.A. 21-4610(d)(1). As to amount, this statute provides that restitution be "in an amount and manner determined by the court." K.S.A. 21-4610(d)(1).

Once again, restitution must be ordered "unless the court finds compelling circumstances which would render a plan of restitution unworkable." K.S.A. 21-4610(d)(1).

Here, as would often be the case, the district court made its restitution order both as part of its sentence and as a condition of the defendant's probation. Nothing in the text of either of these statutes indicates that any different rules were intended to apply to the determination of restitution amounts in these two related situations (i.e., the sentence itself and the conditions of probation). Statutes on the same subject are considered "in pari materia" (in the same matter) and are to be interpreted to achieve consistent results whenever possible. In re Marriage of Takusagawa, 38 Kan. App. 2d 401, 411, 166 P.3d 440 (2007). We would expect, then, to be able to use the statutory text from either statute to guide us in concluding whether the district court has correctly determined the amount of restitution to be paid, which is the only disputed issue in our case.

EXISTING CASELAW INTERPRETING THESE STATUTES

We can draw additional guidance in interpreting and applying these statutes from Kansas Supreme Court decisions on restitution ordered under the present statutory framework. Five cases provide substantial guidance: State v. Dexter, 276 Kan. 909, 80 P.3d 1125 (2003); State v. Hunziker, 274 Kan. 655, 56 P.3d 202 (2002); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); State v. Allen, 260 Kan. 107, 917 P.2d 848 (1996); and State v. Beechum, 251 Kan. 194, 833 P.2d 988 (1992).

From these cases, we know that the starting point is generally the fair-market value of the stolen goods. See Hunziker, 274 Kan. at 664. But restitution can go beyond merely awarding the value of damaged or stolen property. Allen, 260 Kan. at 115. In Hunziker, for example, the court approved the award of an amount reimbursing a backhoe owner for work lost while the damaged backhoe wasn't available for use. 274 Kan. at 664. In Beechum, the court approved the award of airfare for the murder victim's 12-year-old son to travel from Kansas to New York to live with his father, along with the father's lost wages for spending the day traveling on airplanes accompanying his son after the mother was murdered. 251 Kan. at 202-03.

Although restitution may go beyond property loss so as to include other losses, as Hunziker and Beechum illustrate,restitution should be provided only up to the amount of the victim's loss, however characterized. See Hunziker, 274 Kan. at 663-64.The court provided two examples of costs not subject to restitution in Hunziker. There, the court overturned an award of the cost of touch-up paint for the backhoe when the full fair-market value of the backhoe had already been awarded in restitution, and the court overturned reimbursement of the amount the victim paid an attorney to provide advice and prepare exhibits regarding the victim's losses. 274 Kan. at 664, 667-68; see Beechum, 251 Kan. at 203 (noting that "[n]ot all tangential costs incurred as a result of a crime should be subject to restitution"). As to the attorney fees, the court noted that there had been no need in Hunziker "to trace embezzled funds, recreate destroyed data, or recover stolen property." 274 Kan. at 667-68. So the fees did not count toward the victim's loss and could not be included in the restitution amount.

The court has given us guidance regarding comparisons between determining a restitution amount and determining damages for other purposes:

 First, we can draw only limited guidance from the legal rules generally applied in determining damages. In Hunziker, the court advised that "'the rigidness and proof of value'" for damages in a civil-damages suit "'does not apply in a criminal case.'" Rather, what's required for restitution in a criminal case is that "'the court's determination . . . must be based on reliable evidence which yields a defensible restitution figure.'" 274 Kan. at 660 (quoting State v. Casto, 22 Kan. App. 2d 152, 153-54, 912 P.2d 772 [1996]).

 Second, "[t]he amount of restitution can be greater than the damages used to classify the crime." Allen, 260 Kan. at 116. Thus, for example, there may be cases in which damages are calculated conservatively when determining whether the crime is a felony but for which a greater amount could be awarded in restitution.  Third, although there are similar federal statutes regarding restitution in criminal cases, our Supreme Court has found them of limited usefulness since the federal statutes ...


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