State v. Brooks

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NOT DESIGNATED FOR PUBLICATION

No. 116,553

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN DAVID BROOKS,
Appellant.


MEMORANDUM OPINION

Appeal from Neosho District Court; LEO T. GENSWEIDER, judge. Opinion filed February 9, 2018.
Affirmed.

Steven C. Staker, of Southeast Kansas Public Defender Office, of Chanute, for appellant.

Brian P. Duncan, special assistant county attorney, David A. Clark, deputy county attorney, and
Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., BRUNS, J., and STUTZMAN, S.J.

BUSER, J.: Brian David Brooks appeals the district court's order that he pay
$8,000 in restitution upon his conviction for theft of a cattle trailer. Brooks contends there
was no evidentiary basis for the trial court's restitution finding. Upon our review of the
restitution proceedings, the parties' briefs, and oral argument, we conclude the district
court did not abuse its discretion by its order of restitution. Accordingly, we affirm.



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FACTUAL AND PROCEDURAL BACKGROUND

In June 2000, Tim Gericke purchased a 42-foot cattle trailer for $1,500 at an estate
sale held on Sharon Greve's property. Gericke bought the trailer on behalf of his
recycling company, Gericke Iron & Metal, "to scrap it out for the aluminum and the
steel." With Greve's permission, Gericke stored the trailer on her property for many years
until Brooks stole it sometime between late December 2012 and early January 2013.

Eventually, on December 11, 2014, Brooks was charged with theft of the trailer, a
severity level 9 nonperson felony in violation of K.S.A. 2012 Supp. 21-5801(a)(1) and
(b)(3). On May 3, 2016, pursuant to a plea agreement, Brooks pled guilty to a reduced
charge of misdemeanor theft. The district court accepted Brooks' plea and sentenced him
to 12 months' probation with an underlying prison term of 12 months. Despite the plea to
a misdemeanor, by agreement of the parties, full restitution for the value of the trailer was
to be determined at a separate hearing.

At the June 21, 2016, restitution hearing, the State presented Gericke as its sole
witness. Gericke, who had been in the recycling business for 27 years, valued the trailer
at $8,000 based on his estimate of "the weight of the aluminum and the steel and . . . what
we could have got out of it [at the time it was stolen]." In Gericke's opinion, the trailer
contained "almost 10,000 pounds of aluminum and . . . approximately 4,000 pounds of
steel." At the preliminary hearing, before the same judge who presided at the restitution
hearing, Gericke had testified that, at the time of the theft, aluminum had a market value
of $.80 to $.85 a pound, while steel had a value of about $160 a ton. In short, Gericke
arrived at his $8,000 valuation by calculating the market value of aluminum and steel in
late December 2012 through early January 2013 and applying those values to the
estimated weights of aluminum and steel on the trailer.

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On cross-examination, Gericke acknowledged that he based his weight estimates
for the stolen trailer on discussions with some farmers who had provided him with
weights of their cattle trailers. Gericke testified that although he had never "scrapped" a
cattle trailer similar to the one that was stolen, he had weighed other trailers in the course
of his business.

In Brooks' defense case, Michael Connors, a buyer for Commercial Metals
Company, a scrap recycling business, testified about several transactions wherein Brooks
sold him aluminum and steel from the stolen trailer. In all, there were 5 transactions,
involving 2,262 pounds of aluminum, 2,480 pounds of steel, and 10 pounds of copper
totaling $1,385.15. With regard to the sales price of the metals, Connors noted that
different customers received different prices for metals sold to Commercial Metals
Company, and he agreed that a dealer, like Greicke Iron & Metal, would typically receive
a higher price for scrap metals than a vendor like Brooks. Of note, Connors was unable to
provide any estimate regarding the scrap value of the stolen cattle trailer.

At the restitution hearing, Sharon Greve testified that the cattle trailer was
manufactured by Fruehauf, although she was unable to recall if it had a single or double
deck.

At the conclusion of the hearing, the district court found:

"[Gericke] gave $1,500 for the trailer 12 years ago, said it was for the purposes of
scrap. He's been in this business for 27 years. He came up with a value of $8,000. He
came up with a figure of [10,000 pounds] of aluminum. Even Mr. Connor[s] testified and
the records indicate that he paid $0.47, $0.50 a pound for this aluminum. Using those
figures for 10,000 pounds, we come up with $4,700. And that's not even considering the
4,000 pounds' worth of steel.
". . . [T]he fact that [Gericke] gave 1,500 for [the trailer] is not going to be a sum
to consider when you determine what the restitution is.
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. . . .
"The receipts produced by Mr. Connor[s], that doesn't tell me that what he
bought was all the weight of the aluminum from this particular stolen trailer. That just
tells me what he bought from the defendant. That's not conclusive evidence that that's all
the aluminum that was taken off of this trailer.
"For all those reasons, the Court doesn't have any problem accepting as reliable
the testimony of the victim, Mr. Gericke, who's been doing this for 27 years, and
awarding him the $8,000 as restitution."

Brooks appeals.

DISCUSSION

On appeal, Brooks contends the district court erred when it ordered him to pay
$8,000 in restitution to Gericke. Brooks argues that "[n]o reliable evidence was presented
in support of Mr. Gericke's estimate of the weight of the aluminum and steel in the
trailer" and, thus, "there was no factual basis for the trial court's [restitution] finding."

At the outset, a summary of Kansas law pertaining to restitution is in order. K.S.A.
2016 Supp. 21-6607(c)(2) provides that a district court that grants a defendant probation
"shall order the defendant to . . . make reparation or restitution to the aggrieved party for
the damage or loss caused by the defendant's crime." The amount of restitution and how
it should be paid rests within the district court's discretion, and our court will not reverse
a restitution ruling unless the district court abused its discretion. State v. Futrell, 53 Kan.
App. 2d 272, 274, 387 P.3d 176 (2016), rev. granted 306 Kan. 1323 (2017). A district
court abuses its discretion if (1) no reasonable person would take the view adopted by the
court; (2) the decision is based on an error of law; or (3) the decision is based on an error
of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The burden of
establishing an abuse of discretion lies with the party asserting the error, in this case,
Brooks. See State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015).
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In essence, restitution provides a means for financial compensation to crime
victims for their losses. See K.S.A. 2016 Supp. 21-6607(c)(2); State v. Cox, 30 Kan. App.
2d 407, 408-09, 42 P.3d 182 (2002). While proof of a victim's damages or loss in a
criminal case does not require the same "rigidness of proof of value that lies in a civil
damage suit . . . the court's determination of restitution must be based on reliable
evidence which yields a defensible restitution figure." State v. Casto, 22 Kan. App. 2d
152, 154, 912 P.2d 772 (1996).

With regard to property crimes, Kansas courts have routinely measured the
amount of restitution by the fair market value of the property. State v. Hall, 297 Kan.
709, 713, 304 P.3d 677 (2013). In those cases where the fair market value of property is
impossible to calculate, however, the district court may consider the purchase price,
condition, age, and replacement cost of the property in its determination of restitution.
State v. Maloney, 36 Kan. App. 2d 711, 715, 143 P.3d 417 (2006).

In this case, Brooks contends the district court's "$8,000 restitution order was not
supported by reliable evidence and . . . the $8,000 requested by the State was not a
defensible restitution figure." Brooks attacks Gericke's valuation of the trailer with regard
to his estimates of the weights of the metals and the scrap value of the trailer. Brooks
claims there was no evidence to support Gericke's estimate that the trailer contained
10,000 pounds of aluminum and 4,000 pounds of steel. He also complains that Gericke
based his weight estimates primarily on the unreliable statements of farmers who had
similar trailers.

The State responds that the owner of property is presumed to know its value and
the owner's opinion of its value is competent and may be considered by the trier of fact.
See Ultimate Chem. Co. v. Surface Transp. Int'l, Inc., 232 Kan. 727, Syl. ¶ 4, 658 P.2d
1008 (1983); State v. Button, No. 111,379, 2015 WL 1882146, at *4 (Kan. App. 2015)
(unpublished opinion). To this end, the State points out that, at the time of the restitution
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hearing, Gericke had 27 years' experience in the recycling industry, spoke to farmers
about the weight of their own trailers and, in the course of his business, weighed trailers
of a similar size. The State also emphasizes that both Gericke and Connors agreed that
recycling businesses—like Gericke Iron & Metal—often receive higher values for the
same metals than individual sellers—like Brooks.

In our independent review of the lengthy testimony presented during the
restitution hearing, we have applied the law as articulated by our Supreme Court:

"The appropriate amount [of restitution] is that which compensates the victim for the
actual damage or loss caused by the defendant's crime. And the most accurate measure of
this loss depends on the evidence before the district court. As long as the requisite causal
connection exists, and 'the [district] court's determination of restitution [is] based on
reliable evidence' that 'yields a defensible restitution figure,' we will uphold the district
judge's discretionary decision. [Citations omitted.]" Hall, 297 Kan. at 713-14.

We are persuaded that Brooks has not shown an abuse of discretion in this case
because the testimony and exhibits presented at the restitution hearing were based on
sufficiently reliable evidence that resulted in a defensible restitution amount. First, as the
owner of the stolen trailer, Gericke was presumed to know its value and his opinion was
competent evidence for the district court to consider. "The owner of property is presumed
to know its value and his opinion of its value is competent." 232 Kan. 727, Syl. ¶ 4.

Second, it is apparent from the district court's findings that it gave considerable
weight to Gericke's expert opinion as to the scrap value of the metals in the stolen trailer
because of his 27 years' experience in the commercial recycling business. As an appellate
court, we do not reweigh evidence or make determinations regarding credibility. State v.
Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).

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Third, Gericke provided support for his valuation opinions. In particular, he
compared and contrasted his trailer with four other cattle trailers for sale on Craigslist.
With regard to the weight of the trailer, although Gericke never actually weighed it, he
had weighed other trailers in the course of his business. Moreover, without objection,
Gericke testified that he had spoken with farmers regarding the weights of their trailers.
Based on his experience weighing trailers for scrap and conversing with farmers who
owned trailers, Gericke formulated a defensible estimate of the stolen trailer's weight in
aluminum and steel. Gericke's valuation opinions were also buttressed by his recognition
that the sheet aluminum on the stolen trailer was a 5454 alloy, which he testified is more
valuable than other types of aluminum.

Finally, considered together, the testimony of Gericke and Connors countered
Brooks' suggestion that Gericke overvalued the metals in the trailer. Both Gericke and
Connors discussed the unique marketplace for scrap and recycled materials which is
predicated on a negotiated pricing structure. Connors agreed that a commercial dealer,
like Gericke, would normally receive a higher value for the same metals than an
individual seller like Brooks. Moreover, Connors did not dispute Gericke's valuation
opinion or present his own lower valuation.

We conclude that the evidence presented at the restitution hearing was sufficiently
reliable that a defensible restitution figure was established. The district court did not
abuse its discretion in its determination that $8,000 in restitution appropriately
compensated Gericke for the value of his stolen cattle trailer.

Affirmed.