State v. Moody

1

NOT DESIGNATED FOR PUBLICATION

No. 119,322

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RACHEAL LEANNE MOODY,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed September 27, 2019.
Affirmed in part and vacated in part.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BRUNS and WARNER, JJ.

PER CURIAM: A district court "may only order restitution for losses or damages
caused by the crime or crimes for which the defendant was convicted unless, pursuant to
a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly
by the defendant's crime." State v. Dexter, 276 Kan. 909, 919, 80 P.3d 1125 (2003). To
support an order of restitution, the State must provide substantial competent evidence that
establishes a causal link between the crime committed and the victim's loss. State v.
Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016).

2

Racheal Leanne Moody provided methadone to her boyfriend Christopher Allen.
A friend found Allen dead the next morning. The State charged Moody with distribution
of methadone causing death and obstruction of justice for lying to police. At the
preliminary hearing, the State presented expert testimony of two physicians who opined
that Allen's cause of death was from his ingestion of the methadone. Later, Moody
pleaded guilty to distribution of methadone and felony obstruction. At her sentencing
hearing, the district court determined Moody was the but-for cause of Allen's death and
ordered her to pay Allen's mother restitution for his funeral costs and witness fees for one
physician who testified at the preliminary hearing about the cause of Allen's death.

Because we find that Moody's crimes of conviction were not proven to be the
proximate cause of Allen's death, we vacate the restitution order of funeral expenses. We
also find that the witness costs for the physician who testified at the preliminary hearing
were not reasonably related to Moody's crimes of conviction, so that portion of the court
costs assessment is vacated. The balance of court costs assessed were valid.

FACTUAL AND PROCEDURAL HISTORY

Moody and her boyfriend, Allen, lived together in Salina, Kansas. Sometime
between 3 p.m. and 4 p.m. Moody texted Allen to tell him she had gotten them some
"syrup" and that she only wanted to do it with him. The "syrup" was a tablespoon of
methadone. They subsequently met at home.

Moody tried the methadone, but she did not like it. She said it made her sleepy.
Moody told Allen not to use the methadone and took a nap. Allen woke Moody later and
told her he had tried the methadone. Later that night, around 11 p.m., Moody left Allen's
apartment. Allen's phone records show his last outgoing call was to Moody at 2:38 a.m.
the following morning. The records also show Moody and Allen spoke for a little over
eight and a half minutes just before Allen's last outgoing call.
3

The next day, Allen did not show up for work and was not answering calls from
his friend and coworker, Joshua Hill. Hill contacted Moody and the pair exchanged text
messages expressing concern for Allen. Moody urged Hill to break into Allen's
apartment, and Hill eventually went to Allen's apartment and kicked in the front door.
Inside, Hill found Allen dead, sitting on a bean bag with his cell phone, still plugged into
a charger, on his lap. Along with finding methadone in Allen's apartment, law
enforcement found evidence of marijuana, a clear plastic baggie with white residue, and
42 loose pills that included hydrocodone and one other hydrocodone-type drug. Law
enforcement also found a keychain that contained alprazolam, acetaminophen,
carisoprodol, and baclofen.

Moody admitted to police that she brought the methadone to the apartment and
that Allen had ingested some. The State charged Moody with distribution of a controlled
substance leading to death. The district court conducted a preliminary hearing eight
months after Allen's death. At the hearing, the State presented the testimony of a
toxicologist, Dr. Christopher Long, and a forensic pathologist, Dr. Erik Mitchell.

Dr. Long testified that he tested blood, urine, and liver samples from Allen and
determined that Allen had a low, but potentially lethal, amount of methadone in his
system. The urine test showed a presence of metabolite, which meant Allen did not die
right away because metabolization does not continue after death. Long could not
determine exactly when Allen took his last dose of methadone, but he estimated it would
have been within four to eight hours of his death if it was a one-time dose. That said,
Long also testified that Allen could have taken methadone "over a period of time and
metabolizing it and then he took one final dose and that pushed him over the edge." Long
explained that there are many factors that can contribute to death by methadone.

Dr. Mitchell's autopsy report determined Allen's death was an accident with the
"diagnosis . . . listed as complications of methadone intoxication." At the preliminary
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hearing, Mitchell testified that Allen died "as a consequence of toxicity of Methadone"
and explained there was "a lower concentration than is usual in [methadone related]
deaths" and was "well below average for Methadone overdoses." Mitchell testified that
there is much variability in determining the amount and cause of a methadone-related
death but opined that Allen's death resulted from a single intake, rather than chronic
methadone use. Mitchell believed it was likely Allen did not have long-term survival
after the intake.

Moody entered a guilty plea to one count of distribution of methadone and a no
contest plea to one count of felony obstruction for purposefully lying to police. The
distribution of methadone leading to death count was dismissed. The parties agreed to
recommend a prison sentence consisting of consecutive counts at the maximum
presumptive sentence. The plea agreement had no provision about restitution.

Before sentencing, the State filed requests for costs and restitution. The State
sought recovery of $1,182.72 as the expenses incurred to have Dr. Long travel from
St. Louis, Missouri, to appear in court for the preliminary hearing. The State also filed a
notice of restitution seeking $2,653.50 to Allen's mother for funeral expenses she paid to
bury Allen.

Moody's counsel objected to the restitution award and the imposition of the
witness fees. Moody argued that she never agreed that she caused Allen's death and
argued that she had disputed this fact throughout the proceedings. Moody pointed out that
she was not convicted of distribution of methadone leading to death and thus she should
not have to pay restitution associated with causing Allen's death. The district court relied
on the evidence presented at the preliminary hearing to find that causation had been
established.

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"Ma'am, you're still a person of your own free will to make decisions regardless
of your background and circumstances, and the distribution of that methadone from this
[c]ourt's perspective and the evidence I viewed is the 'but for' cause of his death. The fact
that the deceased had substance abuse issues, from the experts' testimony, did not give
rise to them finding anything other than causation for the methadone ingestion. . . . Both
of [the] physicians opined that the methadone was the cause of death. . . .

. . . .

"As for the expenses, the [c]ourt views [Moody's] behavior of distributing
methadone as the direct cause, based upon the testimony of Dr. Long and Dr. Mitchell,
and it meets the requirements of restitution. Both of those physicians opined regarding
causation, and within a reasonable degree of medical certainty testified that his ingestion
of methadone caused his death. The [c]ourt is imposing restitution to [Allen's mother] in
the amount of $2653.50 for funeral expenses of the decedent."

The district court sentenced Moody to 23 months in prison as recommended by the
parties and ordered her to pay the travel expenses as court costs and funeral expenses as
restitution. Moody objected again to the imposition of the witness fees and the court held
that the costs were "reasonable" and incurred by the State as part of prosecuting the case.
Moody timely filed this notice of appeal.

THE RESTITUTION AWARD

Moody argues that the restitution award was incorrect for two reasons. First,
Moody argues she could not be the but-for cause of Allen's death. Second, the district
court did not properly consider whether Moody was the legal cause of Allen's death as
required by the proximate cause analysis. The State contends Moody contributed the
methadone and was thus the but-for cause of his death and argues the district court
properly considered the issue under a proximate cause analysis. We find Moody properly
preserved this issue for appeal.
6

There was not substantial competent evidence presented to establish that the distribution
of methadone was the proximate cause of Allen's death.

On appeal, Moody argues the district court erred in awarding restitution in two
ways. First, Moody argues her crime of conviction was not the proximate cause of Allen's
death. Second, Moody argues the district court did not properly analyze the second prong
of the proximate cause analysis when the court failed to consider whether Allen's death
was a foreseeable result of Moody's conduct. The State argues that the district court made
findings about the second prong of the proximate cause test and that Moody's crime was
the proximate cause of Allen's death.

A district court "may only order restitution for losses or damages caused by the
crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain,
the defendant has agreed to pay for losses not caused directly or indirectly by the
defendant's crime." Dexter, 276 Kan. at 919. To support an order of restitution, the State
must provide substantial competent evidence that establishes a causal link between the
crime committed and the victim's loss. Shank, 304 Kan. at 93; State v. Alcala, 301 Kan.
832, 837, 348 P.3d 570 (2015). Substantial competent evidence is legal and relevant
evidence that a reasonable person could accept as sufficient to support a conclusion. State
v. Jolly, 301 Kan. 313, 325, 342 P.3d 935 (2015).

The Kansas Supreme Court has determined that the requirement of a causal
connection may be satisfied if the loss was either directly or indirectly caused by the
crime. See State v. Hall, 298 Kan. 978, 990, 319 P.3d 506 (2014). Yet more recently in
State v. Arnett, 307 Kan. 648, 655, 413 P.3d 787 (2018), the Kansas Supreme Court held
that "the causal link between a defendant's crime and the restitution damages for which
the defendant is held liable must satisfy the traditional elements of proximate cause:
cause-in-fact and legal causation." The court reasoned that "'[a]lthough not all tangential
costs incurred as a result of a crime should be the subject of restitution, . . . there is no
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requirement that the damage or loss be "directly" caused by the defendant's crime.' . . .
[Nevertheless,] there must be some limit to the defendant's liability." 307 Kan. at 653-54.

We assume, without deciding, that Moody's crime was the cause-in-fact of Allen's
death.

Causation-in-fact required under the holding in Arnett is based on a but-for
analysis. 307 Kan. at 654. To establish causation-in-fact there must be "sufficient
evidence from which a jury could conclude that more likely than not, but for the
defendant's conduct, the plaintiff's injuries would not have occurred." Puckett v. Mt.
Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010). Causation-in-
fact as applied here is subject to K.S.A. 2018 Supp. 21-6607(c)(2), which limits
reparation to "the damage or loss caused by the defendant's crime." The illegal conduct
here is Moody's distribution of methadone. Thus, to be the basis of an order of restitution,
Moody's distribution of methadone must have been the proximate cause of Allen's death.

The State makes a simple argument for this issue. According to the State, but-for
Moody's distribution of the methadone to Allen, "he would not have had any to take, and
thus, overdose on." Moody, however, argues that she only made the methadone available
to Allen, and "[w]hat [Allen] did or did not do with it after that was up to him."

We find it telling that the court only convicted Moody of distributing methadone
to Allen. If the State wanted to make a guilt determination related to Allen's death, it
should have sought a conviction for Moody's original charge of distribution of methadone
causing death. Then, the State would have had the statutory authority to seek a restitution
award for the harm caused by Moody's crime. But by finding Moody to be the but-for
cause of Allen's death, the district court determined Moody was responsible for his death
through restitution and not conviction. On appeal, the State is asking this court to make
the same determination, but we hesitate to do so. The Kansas Supreme Court has
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cautioned against focusing on "an overly broad interpretation of 'nexus' and ignor[ing] the
essential, statutorily mandated requirement that the loss be caused by, not merely
connected to, the crime of conviction." Dexter, 276 Kan. at 918.

Instead, because the State fails to prove the second part of the causation equation,
we will simply assume, without deciding, that the State has met the first prong—that
substantial competent evidence in this case could support the finding that Moody was the
cause-in-fact of Allen's death.

Moody's conviction was not shown to be the legal cause of Allen's death.

The proximate cause analysis requires Moody to be both the cause-in-fact and the
legal causation of Allen's death. Legal causation is based on the concept of foreseeability.
It has the effect of limiting causation-in-fact liability to when the resulting injury or
damage is foreseeable. Thus, "the defendant is only liable when it was foreseeable that
the defendant's conduct might have created a risk of harm and the result of that conduct
and any contributing causes were foreseeable." Arnett, 307 Kan. at 655.

Moody argues that it is impossible to know, and thus foresee, what would cause
someone's death from ingesting a "'well below average' methadone concentration." The
State argues that it is a "highly foreseeable occurrence" that Allen would take the drugs
Moody brought him and his taking of the drugs does not break the causality chain as an
intervening cause. The State also suggests that since Moody knew that Allen was already
using other narcotic drugs, it is not "outside the realm of foreseeability that giving
someone already using narcotic drugs additional narcotic drugs could harm or kill them."

The State also argues that "[i]t simply belies belief to think that Moody could not
have reasonably known that giving Allen—a man she claims used and stole large
amounts of per prescription opioids—a new kind of drug would not carry serious risks."
9

Although Moody told police that she believed Allen stole some of her Norco tablets and
abused Opana, Xanax, and Valium in the past, there is no evidence in the record to
support the conclusion the State is proffering—that Moody would know giving Allen
methadone could kill him.

It is an easy conclusion to find it foreseeable that Allen would take the methadone
that Moody distributed to him. Moody knew he abused drugs in the past and according to
their text message exchange, Allen was interested in the prospect of using the methadone
when Moody told him about it. Thus, it is foreseeable that Allen would use the
methadone.

That said, legal causation limits liability to when "it was foreseeable that the
defendant's conduct might have created a risk of harm and the result of that conduct and
any contributing causes were foreseeable." (Emphasis added.) Arnett, 307 Kan. at 655.
The foreseeable result of Moody's conduct was Allen's use of the methadone. But the
eventual result of Allen's death could not have been foreseeable by Moody. The rule
requires that any contributing causes also be foreseeable, and this is where the analysis by
the State appears to suggest that Moody should be aware of any contributing causes that
could have led to Allen's death. But this is a slippery slope—is it foreseeable that Moody
would be aware of all the drugs in Allen's system? This seems impossible because, as the
State points out, Moody knew that Allen abused many other narcotics in the past. Thus,
how could she ever possibly know what Allen had taken that could contribute to his
eventual death?

Additionally, Moody took the methadone herself and she did not overdose. It does
not seem logical that Moody, after taking the methadone, sleeping, and eventually driving
home, would then foresee Allen dying of the exact drug she ingested herself. Moody's
use of the methadone, combined with her knowledge of Allen's previous drug use, could
lead to the opposite conclusion of what the State suggests. It is foreseeable that Moody
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thought Allen could reasonably handle the ingestion of the methadone since she took it
herself and believed Allen to be an avid drug user.

Although the testimony of the physicians concluded that Allen died of the
methadone he ingested, the testimony also suggested that the physicians themselves
cannot predict how any person will react to an opiate. Dr. Mitchell testified "there's a lot
of different factors. There are individual factors. There are factors I'm sure we don't
understand in opiates as yet. Or at least certainly I don't. There is a lot of variability. And
you will get people who die at low dose and high levels [of ingestion]." So while the
physician testified that he does not fully understand opiates and they are difficult to
predict, the State suggests that Moody should have foreseen that Allen's ingestion of the
methadone would cause his death.

Even if the State's argument that Allen's death was foreseeable was logical, the
State did not present substantial competent evidence for this finding. The State offered no
evidence, and a review of the record provides none, to support its conclusion that "[i]t
simply belies belief to think that Moody could not have reasonably known that giving
Allen . . . a new kind of drug would not carry serious risks." The record merely shows
that Moody brought methadone to her boyfriend's apartment, both Moody and Allen
ingested the methadone even though Moody told Allen not to take it, Moody left Allen's
apartment that night, and a friend discovered Allen dead in his living room the next day.

We conclude that there was not substantial competent evidence presented to
support the district court's conclusion that Moody's distribution of methadone was the
proximate cause of Allen's death. Even if we assume Moody's distribution of methadone
to Allen was the causation-in-fact of Allen's death—satisfying the first prong of the
test—substantial competent evidence must support both prongs. There was not
substantial competent evidence to support a finding of legal causation or foreseeability.
As a result, we vacate the restitution award for funeral expenses in the sum of $2,653.50.
11

See State v. Miller, 51 Kan. App. 2d 869, 869, 355 P.3d 716 (2015) (finding that the
correct remedy for lack of causal connection between crime of conviction and restitution
is to vacate the district court's restitution order).

ASSESSMENT OF COSTS

Moody argues that the district court erred when it ordered her to pay for the costs
of Dr. Long's travel and testimony because it was unrelated to the crimes to which she
pleaded guilty. The State argues that Moody did not preserve this issue for appeal but
even if she did, Long's testimony sufficiently related to the crimes which Moody pled
because it corroborated Moody's statements to police.

Moody did not preserve this issue for appeal but an exception applies.

The State contends that Moody should not be able to raise this argument on appeal
because she presented a different argument at the sentencing hearing. At sentencing,
Moody specifically objected by making an argument that the court should not penalize
her for exercising her right to a probable cause finding through a preliminary hearing. At
sentencing, Moody's counsel stated,

"[T]hese are prosecution costs the State seeks to recover, the doctors' testimony. I am
familiar with a case out of, I think it's Wisconsin . . . . It says that the testimony of a
psychologist or a toxicologist is hearsay unless that person is present to testify. So,
[Moody] exercised her right to a preliminary hearing, and I believe that the constitution
requires a probable cause determination of some sort, and that's why we have preliminary
hearings and grand jury indictments in felony cases without exception all through this
land. And so to penalize her by conditioning her exercise of that right by payment of
costs and expenses of prosecution would be to dissolve the right entirely. I would ask the
[c]ourt again not to impose witness costs and fees in this regard."

12

After some explanation by the State detailing the breakdown of the costs, the
district court asked Moody, "So [Moody] isn't disputing the reasonableness of the amount
but just the imposition at all those fees for the reasons you previously stated?" Moody's
counsel affirmed the district court's question, and the district court found the fees to be
reasonable, stating,

"I'm not hearing a dispute regarding the amount, just the imposition of it, and the [c]ourt
finds that those costs are reasonable in this case, and that the doctor did testify, they were
incurred, and the [c]ourt will grant the request pursuant to Kansas statute for recovery of
costs by the State in the amount of $1,182.72."

On appeal, Moody now argues that the order for court costs was improper because
the costs were unrelated to the crimes to which she pled. This is a different argument than
what Moody raised at the sentencing hearing. In her brief on appeal, Moody recognizes
her specific objection at the lower court but does not concede it was different. Rather,
Moody argues that if this panel finds the argument to be different, then an exception
applies.

There are several exceptions to the general rule that a party may not assert a new
legal theory for the first time on appeal, including the following: (1) the newly asserted
theory involves only a question of law arising on proved or admitted facts and finally
determines the case; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court
may be upheld on appeal despite its reliance on the wrong ground or having assigned a
wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

An appellant is required to explain why he or she did not raise an issue before the
district court and why the appellate court should consider it for the first time on appeal.
See Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34). In addition, the Supreme
13

Court has held that litigants who violate this rule risk a ruling that the issue is improperly
briefed, and the issue will be considered waived or abandoned. State v. Williams, 298
Kan. 1075, 1085, 319 P.3d 528 (2014). The Supreme Court has made clear that it will
strictly enforce Rule 6.02(a)(5). State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068
(2015).

Moody argues that the first exception applies because the newly asserted theory
involves only a question of law arising on proved or admitted facts and determines the
case. The State argues that this exception cannot apply because the district court did not
have a chance to rule directly on this specific issue and therefore the court made no
factual findings for this argument.

Despite the State's assertion that the district court made no factual findings for this
specific argument, the exception applies if all the facts necessary to decide the issue have
been proven or admitted. See Phillips, 299 Kan. at 493. Here, all the facts necessary have
been proven or admitted and this newly asserted theory involves only a question of law
and is determinate of the issue. The exception therefore applies, and we will consider this
argument for the first time on appeal.

The court costs were unrelated to Moody's crime.

"To the extent that this issue requires statutory interpretation, [this court]
exercise[s] unlimited review. [Citation omitted.] To the extent the district court has
discretion in an award for costs and expenses, [this court] review[s] for an abuse of
discretion." State v. Lopez, 36 Kan. App. 2d 723, 726-27, 143 P.3d 695 (2006). A judicial
action constitutes an abuse of discretion if (1) no reasonable person would take the view
adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error
of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

14

Under K.S.A. 22-3801(a), "[i]f the defendant in a criminal case is convicted, the
court costs shall be taxed against the defendant and shall be a judgment against the
defendant which may be enforced as judgments for payment of money in civil cases."
K.S.A. 2018 Supp. 28-172a(d) states that all other costs "shall be approved by the court"
and defines possible additional fees as including, but limited to,

"fees for Kansas bureau of investigation forensic or laboratory analyses, fees for
detention facility processing pursuant to K.S.A. 12-16,119, and amendments thereto, fees
for the sexual assault evidence collection kit, fees for conducting an examination of a
sexual assault victim, fees for service of process outside the state, witness fees, fees for
transcripts and depositions, costs from other courts, doctors' fees and examination and
evaluation fees."

Along with the statutory authority, Kansas courts have also held that upon
conviction in a criminal action the defendant is liable for the costs of both the prosecution
and defense of the case. State v. Shannon, 194 Kan. 258, 263, 398 P.2d 344 (1965). These
costs are not intended to penalize the defendant, but to allocate expenses incurred in
prosecution. State v. Dean, 12 Kan. App. 2d 321, 323, 743 P.2d 98 (1987). And most
notable here, Kansas courts have also held that "it is beyond the district court's discretion
to award costs and expenses that were unrelated to prosecuting the crimes of conviction."
Lopez, 36 Kan. App. 2d at 728.

This court has considered this issue in an unpublished case in which the court
convicted the defendant as part of a plea agreement. See State v. Richmond, No. 98,790,
2008 WL 4849342, at *3 (Kan. App. 2008) (unpublished opinion). The State charged
Richmond with rape, but the State subsequently dropped that charge and Richmond pled
guilty to two counts of aggravated battery. The panel held that the costs the court ordered
to cover a sexual assault kit and the sexual assault examination were unrelated to the two
counts of aggravated battery to which the defendant pled. Neither the kit nor the
examination formed a part of the factual basis for the defendant's plea and therefore the
15

district court abused its discretion when it ordered the defendant to pay for those
expenses. 2008 WL 4849342, at *3. We find this rationale compelling.

Here, the district court used the preliminary hearing evidence along with an
affidavit as the factual basis for the plea. The State indicated that the preliminary hearing
would cover the factual basis for Count 1 and it submitted the affidavit for the factual
basis for Count 2, interference with law enforcement.

The court costs at issue total the cost for Dr. Long to fly to the preliminary
hearing, rent a car, and for "one day of essentially court testimony." Also included was
the copying fee of the file to send to Moody's experts. A review of the record shows that
Long's testimony was for the specific purpose of determining that the cause of Allen's
death was his ingestion of methadone. Long did not testify to anything related to Moody's
distribution and never discussed whether the methadone Moody distributed was the same
methadone discovered in Allen's toxicology assessment. Moody never disputed that she
brought the methadone into their home, nor does she deny that Allen ingested some of
it—albeit against her instructions.

Despite this, the State argues on appeal that Dr. Long's testimony was essential to
proving both crimes Moody pleaded guilty to. First, the State argues that because Moody
claimed she told Allen not to take the methadone, Long's testimony "established that
Allen had actually ingested methadone, which proved that he was not merely or
inadvertently in possession of the methadone found in the cabinet." The State further
argues that both Long's testimony and Moody's text messages "show not only her intent
to actually give Allen methadone, but that he actually took the methadone she brought
him, and that the methadone found in the apartment was not simply unknowingly (to
Allen) left there by Moody." The State suggests that Long's testimony about the amount
of methadone in Allen's system also corroborates Moody's statement that she obtained a
tablespoon of methadone to share with Allen.
16

Second, the State suggests that Dr. Long's testimony shows that Moody lied to
police when she told them she did not intend for Allen to have the methadone. The State
maintains that it needed Long's testimony at trial for the State to prove their case and
rebut Moody's defense. The State adds: "In fact, Dr. Long's testimony is the best
evidence of Moody's guilt, because it allowed Dr. Mitchell to conclude that Allen had
ingested the methadone only a short time before his death, and that Allen was not a long-
time methadone user." The State further argues: "The toxicology work performed by Dr.
Long was concrete proof that she followed through on her plans made via text message,
to try methadone with Allen for the first time." But the State specifically offered the
affidavit, not the preliminary hearing testimony, as the factual basis for Count 2 of
Moody's plea. Thus, any argument by the State that Long's testimony was used to
establish guilt for Count 2 is not persuasive.

While the State did offer the preliminary hearing evidence as a factual basis for
Count 1, the record reflects that Long's testimony was for the sole purpose of establishing
Allen died from the methadone ingestion. This purpose is clear considering the
preliminary hearing took place when Moody was charged with distribution of methadone
causing death. And along with the State using the preliminary hearing, the State also
submitted "the text messages that are also in the Affidavit showing that she did in fact
distribute that controlled substance" as the factual basis for her plea to Count 1.

Thus, the State's arguments suggesting that it would need Dr. Long's testimony to
corroborate or provide evidence that Allen ingested the methadone Moody distributed are
also not persuasive. The State attempts to relate Long's testimony to Moody's crime of
conviction by arguing the laws about distribution of methadone require the State to show
Moody specifically intended to give Allen the drug, and that there was an "'actual,
constructive, or attempted transfer of an item from one person to another.'" But, as
Moody points out, the elements of distribution of methadone do not require the State to
17

prove the actual use of the methadone, the consequences of its use, or to whom it was
distributed. See K.S.A. 2018 Supp. 21-5705.

The record reflects that Dr. Long did testify that Allen ingested a small amount of
methadone, but that testimony was not used as a factual basis for the crimes to which
Moody pleaded guilty. The State did not have to prove Allen ingested the methadone
Moody distributed to him and any argument by the State related to this testimony is a
stretch. The State specifically included "the text messages that are also in the Affidavit
showing that she did in fact distribute that controlled substance" for the factual basis for
the plea to Count 1. This further suggests that the testimony of Long was not reasonably
related to Moody's crime of conviction. Much like the reasoning in Richmond, the State
discharged Moody from liability for Allen's death and therefore she should not be
responsible for the court costs incurred related to that charge. See 2008 WL 4849342, at
*3.

Because the fees for Dr. Long's testimony were unrelated to Moody's ultimate
crime of conviction, the trial court abused its discretion in ordering Moody to pay those
expenses. Thus, we vacate the court costs assessed against Moody that related to the
testimony of Long, $1,182.72.

In sum, we vacate the district court's ordered restitution of $2,653.50. We also
vacate $1,182.72 of the court cost order. The balance of the court costs assessed, $1,293,
was not challenged by Moody and remain in effect.

Affirmed in part and vacated in part.