State v. Martin

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NOT DESIGNATED FOR PUBLICATION

No. 117,848

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JACOB MICHAEL MARTIN,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed June 15, 2018.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: Jacob Michael Martin appeals the district court's order of
restitution, contending the amount is unsupported by the evidence. We affirm.

Factual and procedural background

Martin stole Brittani Jenson's golf clubs from a van, then pleaded guilty to
burglary of a vehicle and theft. The district court sentenced him to probation with an
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underlying sentence of five months' imprisonment and held a hearing to determine the
amount of restitution.

Heather Jenson, Brittani's mother, testified at that restitution hearing. She
explained that at the time of the theft, Brittani was a high school student pursuing a golf
scholarship for college. On the day that Martin stole the items from the van, Brittani was
scheduled to play in a tournament that college recruiters would attend the next day. So on
the day Heather learned of the theft, she bought Brittani a new set of golf clubs, which
cost $2,709.31, and a golf bag, which cost $189.85.

Heather was able to buy the same golf bag as the one Martin had stolen, but could
not find the same golf clubs. Brittani's stolen driver was a Callaway Ghost that had cost
around $400. But because that driver was out of production, Heather bought the driver
that had replaced it. Heather was unsure of the brand of the other golf clubs but she tried
to get clubs much like those Brittani had been using. Brittani used the new clubs and bag
in the tournament the next day.

A few days later, the police contacted Heather to tell her that they had located the
stolen clubs at a pawn shop in Olathe. Heather drove to the pawn shop, paid $80 to
recover the stolen items, and returned them to Brittani who resumed using them. Heather
could not return the new clubs to the store because they had been used. So Heather stored
the new clubs and bag in her garage where they remained until the restitution hearing.

The district court ordered Martin to pay $2,979.16 in restitution. That amount
included the cost of the new clubs, the cost of the new bag, and the cost paid to the pawn
shop to recover the original clubs and bag. The district court also ordered the replacement
clubs and bag to be turned over to Martin once he paid full restitution. Martin appeals,
arguing solely that the district court's restitution order exceeded the amount of actual loss
caused by his crime.
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Standard of review

Our standard of review in restitution cases is clear:

"Questions concerning the 'amount of restitution and the manner in which it is made to
the aggrieved party' are reviewed under an abuse of discretion standard. A district court's
factual finding relating to the causal link between the crime committed and the victim's
loss will be affirmed if those findings are supported by substantial competent evidence.
Finally, appellate courts have unlimited review over legal questions involving the
interpretation of the underlying statutes. [Citations omitted.]" State v. King, 288 Kan.
333, 354-55, 204 P.3d 585 (2009).

Analysis

A court can order a criminal defendant "to pay restitution, which 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.
2017 Supp. 21-6604(b)(1). Similarly, as a condition of probation, the district court can
order the defendant to "make reparation or restitution to the aggrieved party for the
damage or loss caused by the defendant's crime." K.S.A. 2017 Supp. 21-6607(c)(2).

Martin argues that the district court abused its discretion by awarding Heather the
replacement cost of the golf clubs as opposed to their fair market value. For property
crimes, Kansas courts have routinely measured the amount of restitution by the fair
market value of the property. State v. Hall, 45 Kan. App. 2d 290, 301, 247 P.3d 1050
(2011), aff'd 297 Kan. 709, 304 P.3d 677 (2013). Only when the trial court could not
easily determine the fair market value did we permit it to "consider other factors
including the purchase price, condition, age, and replacement cost of the property." State
v. Phillips, 45 Kan. App. 2d 788, 795, 253 P.3d 372 (2011). We thus applied the rule that
"an award of restitution that exceeds the fair market value of an item constitutes an abuse
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of discretion." Hall, 45 Kan. App. 2d at 302. See State v. Rhodes, 31 Kan. App. 2d 1040,
1042-43, 77 P.3d 502 (2003) (reversing an order of restitution because it was based on
replacement value rather than fair market value); State v. Hinckley, 13 Kan. App. 2d 417,
419-20, 777 P.2d 857 (1989) (vacating a restitution order and remanding for a second
restitution hearing because the district court ordered defendant to pay the replacement
value of the stolen property less 15 percent rather than the fair market value). Martin's
argument would have won the day a few years ago.

But the Kansas Supreme Court corrected us in State v. Hand, 297 Kan. 734, 737-
38, 304 P.3d 1234 (2013), and Hall, 297 Kan. at 712, which rejected reliance on bright-
line rules. Hand found no error by the district court's failure to rely on the fair market
value of the property stolen:

"Kansas courts have consistently held 'fair market value' to be the usual standard
for calculating 'loss or damage' for purposes of restitution. State v. Chambers, 36 Kan.
App. 2d 228, 242, 138 P.3d 405, rev. denied 282 Kan. 792 (2006); State v. Casto, 22
Kan. App. 2d 152, 154, 912 P.2d 772 (1996). But, as we explain in State v. Hall, the
concept of fair market value as the one and only starting place oversimplifies. See State v.
Hall, [297 Kan. 709, 304 P.3d 677 (2013),] (for purposes of calculating restitution owed
for stolen inventory, neither retail price nor wholesale automatic benchmark for
valuation). Although fair market value may be an accurate measure of loss in some cases,
it may not be the best measure for all cases. See Chambers, 36 Kan. App. 2d 228 (no
discernible market value for used personal lingerie stolen from victim's home); see also
State v. Maloney, 36 Kan. App. 2d 711, 714-15, 143 P.3d 417, rev. denied 282 Kan. 794
(2006) (if property lacks calculable fair market value, restitution amount may be based on
other factors); State v. Rhodes, 31 Kan. App. 2d 1040, 77 P.3d 502 (2003) (same).

"Here, it is undisputed that the district judge did not explicitly consider the fair
market value of the stolen television when fashioning a restitution award. But the
governing statutory language did not require the judge to award only fair market value as
restitution in a theft case. K.S.A. 21-4610(d). Nor did it require the judge to consider the
fair market value of the property lost before considering other factors. K.S.A. 21-4610(d).
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Indeed, we have recognized that restitution can include costs in addition to and other than
fair market value. State v. Allen, 260 Kan. 107, 115-16, 917 P.2d 848 (1996). The critical
element is the causal connection between the crime and the loss. Allen, 260 Kan. at 115-
16. And the appropriate measure of restitution to be ordered is the amount that
reimburses the victim for the actual loss suffered." Hand, 297 Kan. at 737-38 (finding no
error by including the amount of the victim's increased insurance cost in the restitution
amount).

Similarly, in Hall, 297 Kan. 709, Syl. ¶ 1, the Supreme Court rejected a bright-line
rule. It held, instead, that the statutory language requires the sentencing judge to evaluate
the evidence, weigh all factors, and consider the facts and circumstances of each case to
determine a value that will compensate the victim for the actual loss caused by the
defendant's crime. 297 Kan. at 712-15. There, the court was asked to determine whether
retail cost or wholesale cost was the appropriate measure of loss for determining
restitution for stolen inventory. But it expressly rejected any notion that the restitution
statute provides a hard and fast measure for setting the value of the loss:

"On its face, the restitution statute does not require a sentencing judge to rely on
wholesale cost rather than retail value in fashioning a restitution award in a theft case
such as this. To the extent the Court of Appeals' opinion holds otherwise, it grafts
requirements onto the statute that are unsupported by its language, and it impermissibly
curtails the discretion liberally granted by our legislature. We hereby reject any notion
that the statute provides a hard and fast measure for setting the value of the loss. The
question at the heart of this appeal cannot be resolved as a matter of law. Determining the
value of an aggrieved party's loss raises an issue of fact." 297 Kan. at 712.

That case found the concept of fair market value to be a sticky wicket,
unpredictable in practice:

"In property crime cases, Kansas courts have consistently held 'fair market value'
to be the usual standard for calculating 'loss or damage' for purposes of restitution.
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Chambers, 36 Kan. App. 2d at 242; State v. Baxter, 34 Kan. App. 2d 364, Syl. ¶ 2, 118
P.3d 1291 (2005). The fair market value of inventory is the price that a willing seller and
a willing buyer would agree upon in an arm's length-transaction. Baxter, 34 Kan. App. 2d
364, Syl. ¶ 2. But the concept of fair market value is a sticky wicket, unpredictable in
practice because it is entirely relative, depending on who is doing the buying and who is
doing the selling. See State v. Behrendt, 47 Kan. App. 2d 396, 402, 274 P.3d 704 (2012),
petition for rev. filed May 10, 2012 (exemplifying potential for confusion as to party
appropriately identified as buyer and seller for purposes of determining fair market
value). The rigid adherence to 'fair market value' oversimplifies. While the phrase may
capture the best measure of loss in some cases, it may not in all. See State v. Chambers,
36 Kan. App. 2d 228, 138 P.3d 405, rev. denied 282 Kan. 792 (2006) (no discernible
market value for used personal lingerie stolen from victim's home); see also State v.
Maloney, 36 Kan. App. 2d 711, 714-15, 143 P.3d 417, rev. denied 282 Kan. 794 (2006)
(if property lacks calculable fair market value, restitution amount may be based on other
factors); State v. Rhodes, 31 Kan. App. 2d 1040, 77 P.3d 502 (2003) (same)." Hall, 297
Kan. at 713.


The sentencing judge thus need not award only the fair market value as restitution
in property crime cases. Nor must a sentencing judge consider the fair market value of the
property lost before considering other factors. And restitution can include costs in
addition to and other than fair market value, particularly when, as here, no evidence of
the fair market value of the property is presented to the district court. Thus, we have
recently found no error when the district court uses replacement cost rather than fair
market value to determine the amount of restitution owed. See State v. Bowen, No.
116,296, 2017 WL 4558555, at *4-5 (Kan. App. 2017) (unpublished opinion); State v.
Mannion, No. 111,970, 2015 WL 3514042 (Kan. App. 2015) (unpublished opinion).

The appropriate amount of restitution here is the amount that compensates the
Jensons for the actual damage or loss caused by Martin's burglary and theft. And the most
accurate measure of that loss depends on the evidence before the district court. No one
presented evidence of fair market value, so the district court used a measure of loss
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including replacement cost that compensated the victim under the facts here. Heather's
testimony constitutes substantial evidence that she incurred $2,979.16 to replace the
stolen clubs and bag and to repurchase the original stolen clubs and bag after they were
found. She had to replace the clubs swiftly and she chose clubs comparable to those
Martin had stolen. Martin does not challenge the requisite causal connection. We find the
district court's determination of restitution is based on reliable evidence that yields a
defensible restitution figure. No windfall to the victim occurs because Martin will
become the owner of the replacement golf clubs and bag once he pays for them. The
district judge exercised the full measure of his discretion under the law and all the
evidence before him in fashioning a creative, yet appropriate, award. We find no abuse of
discretion.

Affirmed.