convicted criminal defendant has a statutory right to have a
hearing on the question of restitution, if desired. When the
defense raises a legitimate issue as to whether the
restitution damages claimed by the victims were caused by the
defendant's crime of conviction, the district court errs
in denying the defendant's request for a restitution
of the judgment of the Court of Appeals in an unpublished
opinion filed June 23, 2017.
from Leavenworth District Court; Gunnar A. Sundby, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, was
on the brief for appellant.
Thompson, county attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
Leeann Martin was originally charged as Kayla Leeann Connery
in two separate, but related criminal cases. The district
court consolidated the cases, and Martin pled nolo contendere
to two counts of interfering with law enforcement by falsely
reporting a crime. As part of her sentence, Martin was
ordered to pay $10, 800 in restitution to a couple with whom
Martin and her daughter had been living at the time of the
crimes. On appeal, Martin challenged the manner in which the
district court imposed the restitution sentence and claimed
the restitution plan was unworkable. The Court of Appeals
affirmed the district court's restitution order.
Determining that Martin should have been given a hearing on
the restitution issue, we reverse the Court of Appeals and
remand to the district court to conduct a restitution
and Procedural Overview
Martin and Amy Nutsch met through a mutual friend, with whom
Martin and her two-year-old daughter had been living for an
unspecified period of time. Shortly thereafter, Martin
confided to Amy that she had recently been raped; Martin
later identified her rapist to police by name, hereafter
referred to as B.T. At first, Amy and her husband, Mark
Nutsch, allowed Martin to stay at the Nutsches' home
during the day. Eventually Martin and her daughter moved in
with them. At the time, Mark, a military officer, was away on
deployment, while Amy, a middle school special education
teacher, remained in Leavenworth with their four children.
Amy later testified at Martin's sentencing that she had
wanted to "help get [Martin] on her feet" and
"make sure her daughter was well cared for . . . in a
safe environment"; Amy also discussed Martin's
mental health struggles, sharing that Martin had cut herself
and was at times suicidal.
her stay in the Nutsch residence, Martin sent herself
threatening emails, text messages, and Facebook messages
using fake accounts. Martin convinced her hosts that the
violent threats were real and that Martin, Martin's
daughter, and the Nutsch family were all in danger. In
response to these threats, Mark returned home from his
military deployment a month early; the family installed a $4,
000 security system with cameras inside and outside the home;
and Amy testified her family "lived in fear for almost
September 10, 2013, a deputy with the Leavenworth County
Sheriff's department responded to an alarm at the Nutsch
house. At that time Martin, Martin's daughter, and the
Nutsches' youngest child were the only people home.
Martin told the deputy that she had seen the man who had
previously raped her (B.T.) pull into the driveway in a
truck. About two weeks later, in a follow-up interview,
Martin told the same deputy that B.T. actually entered the
house, grabbed Martin by the hair, and threatened to rape her
again. Law enforcement found no signs of forced entry; the
Nutsches' security cameras did not corroborate
Martin's statement that anyone entered the home; and the
alleged rapist, B.T., was in the custody of the Kansas
Department of Corrections (KDOC) at the time of the alleged
October 29, 2013, Detective Brian Eckstein of the Leavenworth
County Sheriff's department interviewed Martin about the
threatening messages sent to her email account. Martin showed
the detective an email message she received threatening
sexual violence against her. Martin told the detective that
she believed the emails were sent by B.T. A subpoena of the
email carrier's records revealed that the email account
was associated with a phone number assigned to Martin.
also gave Detective Eckstein additional email addresses from
which she claimed to have received threatening messages, but
Martin did not produce any of the emails coming from these
accounts. A subpoena of the email companies' records
showed these addresses were either nonexistent or inactive
during the relevant time period. Martin also allowed the
detective to inspect her cell phone. Detective Eckstein
stated, in his affidavit: "The phone had text messages
from 10/8/2013 to approximately 10/11/13. The data on the
phone showed [Martin] forwarded the [threatening] messages to
Amy but showed no incoming texts before the message was sent
to Amy Nutsch."
November 1, 2013, Martin, while alone with her daughter at
the Nutsches' home, discharged a shotgun through a
bathroom window. Martin told law enforcement that her brother
was trying to break in through the window. Days later, Martin
told Amy that on the day of the shotgun incident someone
entered the house and raped her. Amy took Martin to a
hospital in Atchison, Kansas, where she received a sexual
assault evaluation. While at the hospital, Detective Eckstein
interviewed Martin again. Martin told the detective that on
the day of the shotgun incident, B.T. entered the house and
raped her. The Nutsches' security cameras did not
corroborate Martin's statement that her brother tried to
enter the bathroom window or that B.T. entered the house.
B.T., in fact, was still in KDOC custody at that time.
December 15, 2013, Martin reported to law enforcement that
she had received threatening Facebook messages from her
biological mother. Detective Eckstein obtained Martin's
cell phone and was able ...