State v. Stuart

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NOT DESIGNATED FOR PUBLICATION

No. 120,330

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

COURTNEY JAMES STUART,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 27,
2019. Affirmed.

Shannon S. Crane, of Hutchinson, for appellant.

Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.

PER CURIAM: The State charged Courtney James Stewart with burglary, theft, and
felony criminal damage to property. At trial, the jury acquitted Stuart of burglary and
theft but convicted him of misdemeanor criminal damage to a window. At sentencing, the
district court ordered Stuart pay $2,577.56 in restitution. Stuart appeals the amount of the
restitution order. For the reasons set forth below, we affirm the trial court's restitution
order.

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FACTUAL AND PROCEDURAL BACKGROUND

In the afternoon of August 13, 2018, Officer Travis Lahann went to the residence
of Robert Turner because a home alarm had been triggered. Turner told Lahann that he
believed someone damaged a back window to gain access to the home. Lahann inspected
the window, and it appeared to him that someone had used some kind of pry tool to open
the window and remove the screen. Turner later noticed an iPod was missing from inside
the home.

Later that same day, Stuart called and voluntarily met with law enforcement
officers. In his conversation with Officer Jim Wilson, Stuart admitted he had damaged a
window. He explained that he had been the victim of a burglary or a theft about a month
before and he suspected a family member of stealing tools from his truck. After
questioning that family member about it, he concluded the tools were being kept at an
address matching Turner's residence. Stuart told Wilson that he drove to the property,
parked in the driveway, and used his fingers to pry open a window to the house. Stuart
told Wilson that he heard the house alarm when he put his head was inside the window,
so he left the premises.

Turner testified he found the window jamb broken and the screen to the window
pried off and lying on the floor inside the bedroom. He contacted Pella Window to
inspect the damage and to give an estimate for repair of the window. Turner was not
allowed to read the Pella Window estimate to the jury because the district court ruled it
was hearsay. But Turner was allowed to testify that the damage was more than $1,000.
Lahann testified that his estimate of damage to the window, based on his conversation
with Turner on the day of the incident, was $300.

Following this evidence, the jury convicted Stuart of one count of criminal
damage to property of an amount less than $1,000 and acquitted him of the other counts.
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The district court held a sentencing hearing in May 2018, where it assessed
restitution as part of the sentence. The amount of restitution was based on the Pella
Window repair estimate that the district court did not admit into evidence at trial. Stuart
argued the amount of restitution should be limited to the evidence at trial which showed
the damage to the window was $300. The district court responded by saying:

"[B]ut the situation's not the same at sentencing that it was at, during the trial. In fact, I
didn't allow in the estimate during the trial because the matter would have been hearsay.
At this point—but I can consider hearsay at this time. I understand what the jury
convicted of [in] the case. I heard the evidence. Your client admitted he's the one who
damaged the window and the estimate is—

. . . .

"THE COURT: The restitution will be ordered as to the estimate that I did not
admit during trial. 'Cause that sufficiently shows the amount of damage to the door—I
mean the window. And Mr. Turner will be repaid for that.

". . . [A]nd I believe I'm more than sufficiently within the facts as I have them to
order restitution on the window which the defendant admits he damaged."

The district court ordered Stuart pay $2,577.56 in restitution based on the estimate
Turner received. Stuart moved the trial court reconsider the restitution, arguing that the
award exceeded the jurisdictional amount for his crime of misdemeanor criminal damage
to property. The district court denied the motion.

Stuart timely appeals.

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DID THE DISTRICT COURT ERR IN ASSESSING THE AMOUNT OF RESTITUTION?

In this appeal, Stuart argues the district court erred by imposing an amount of
restitution that is greater than the damage evidence presented at trial. He also contends
the amount of restitution cannot exceed $1,000—the jurisdictional limit of damages for
misdemeanor criminal damage to property.

Standard of Review

"Issues regarding the amount of restitution and the manner in which it is made to
the aggrieved party are normally subject to review under an abuse of discretion standard."
State v. Hall, 297 Kan. 709, 711, 304 P.3d 677 (2013). A judicial action constitutes an
abuse of discretion if (1) no reasonable person would take the view adopted by the
district court; (2) the action is based on an error or law; or (3) the action is based on an
error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The measure of
restitution to be ordered is the amount that reimburses the victim for the actual loss
suffered. State v. Hunziker, 274 Kan. 655, 662-63, 56 P.3d 202 (2002). Restitution is
appropriate when "the requisite causal connection exists, and '"the [district] court's
determination of restitution [is] based on reliable evidence'" that '"yields a defensible
restitution figure."' [Citations omitted.]" Hall, 297 Kan. at 714.

Stuart first argues that the record contains no evidence to support the restitution
amount he was ordered to pay and that the district court improperly based its restitution
order on an estimate that was not admitted into evidence.

K.S.A. 2018 Supp. 21-6604(b)(1) directs in relevant part:

"[T]he court shall order the defendant to pay restitution, which shall include, but not be
limited to, damage or loss caused by the defendant's crime . . . . In regard to a violation of
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K.S.A. 2018 Supp. 21-5801, 21-5807 or 21-5813, . . . such damage or loss shall include
the cost of repair or replacement of the property that was damaged."

While "[a] sentencing judge has considerable discretion in determining the amount
of restitution" to be paid, the record must support the amount of restitution awarded. State
v. Chambers, 36 Kan. App. 2d 228, 241, 138 P.3d 405, rev. denied 282 Kan. 792 (2006);
see State v. Shank, 304 Kan. 89, 93, 369 P.3d 322 (2016); Hunziker, 274 Kan. at 660.
Furthermore, "the method of determining the amount of any required restitution is a
matter within the discretion of the trial court." State v. Wells, 18 Kan. App. 2d 735, 737,
861 P.2d 828 (1993).

Consistent with K.S.A. 2018 Supp. 21-6604(b)(1), the window repair estimate
relied upon by the district court in assessing restitution represented the damage or loss
caused by Stuart's crime and included the cost of repair or replacement of the damaged
window.

Restitution is part of a criminal defendant's sentence. State v. McDaniel, 292 Kan.
443, 446, 254 P.3d 534 (2011). At sentencing, Turner appeared and requested restitution.
The district court relied on the estimate from Pella Window to establish the exact amount
of restitution. Stuart was present at the hearing and was provided a copy of the repair
estimate. He did not challenge the reliability or accuracy of the estimate. His objection
was that the estimate was not admitted into evidence at trial. Yet, Stuart presents no
authority in support of his contention that restitution must be admitted in, or is limited by,
evidence presented at trial.

We are unpersuaded by Stuart's reliance on State v. Cole, 37 Kan. App. 2d 633,
155 P.3d 739 (2007), where the district court based an order of restitution solely on a
prosecutor's representations. The Cole panel properly observed: "Statements of counsel
are not evidence. . . . [E]ntry of an order of restitution without any evidence to support it
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constitutes an abuse of discretion." 37 Kan. App. 2d at 637. Here, the district court had
evidence—a repair estimate from Pella Window—the reliability and accuracy of which
was not challenged. In accordance with the directives of Hall, 297 Kan. at 714, the
restitution order is based on reliable evidence for damage that Stuart admits he caused.

Stuart next argues restitution should be limited to the jurisdictional limit of his
crime of conviction. Courts may award restitution "only for damages or losses caused by
the defendant's crimes of conviction or otherwise agreed to by a defendant in a plea
agreement." State v. Miller, 51 Kan. App. 2d 869, Syl. ¶ 1, 355 P.3d 716 (2015). One of
the issues at trial was the amount of damages caused to Turner's window. Stuart was
charged with causing damages of at least $1,000 but less than $25,000. See K.S.A. 2018
Supp. 21-5813(c)(2). Although Turner testified his damages exceeded $1,000, the jury
determined the damages caused were less than $1,000 and convicted Stuart of
misdemeanor criminal damage to property. See K.S.A. 2018 Supp. 21-5813(c)(3).
Stuart's complaint is that contrary to the jury's finding on damages, the district court, in
determining restitution, found the damages were more than $2,500. Stuart fails to present
any persuasive authority that the district court's ability to assess restitution is limited by
the jury's determination of damage.

Stuart cites Miller for the proposition that the district court may only order
restitution for losses caused by the crimes for which the defendant is actually convicted.
In Miller, the defendant pled guilty to burglary and theft of a machete and baby powder
from a residence. At sentencing, the trial court observed that electrical and plumbing
damage had been done and assessed restitution for it. Because Miller was not
charged with (or convicted of) theft or criminal damage to the plumbing and electrical
wiring, restitution for those damaged items was not permissible. "[O]ur statutes do not
provide for restitution orders beyond those caused by the crime of conviction without the
defendant's agreement." 51 Kan. App 2d at 874. Here, because Stuart was convicted only
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of the misdemeanor offense—for causing damage of less than $1,000 damage—he asserts
that any assessment over that amount is impermissible under Miller. We do not agree.

We note that, unlike in Miller, Stuart was charged with and convicted of criminal
damage to the window for which restitution was awarded. There is no uncharged
additional offense which forms the basis for the restitution order. Furthermore, the
amount of restitution is determined not by the severity level of crime charged but by the
level of damage caused by the crime. See K.S.A. 2018 Supp. 21-6604(b)(1).

Another panel of our court addressed a similar argument in State v. Pister, No.
113,752, 2016 WL 4736619 (Kan. App. 2016) (unpublished opinion). In Pister, the
defendant was charged with felony criminal damage to a truck but was only convicted of
misdemeanor criminal damage. As here, Pister argued he could not be assessed restitution
in excess of $1,000 because he was only convicted of the misdemeanor. We agree with
the reasoning in Pister that

"just because the State failed to prove beyond a reasonable doubt that the value of [the
victim's] truck exceeded $1,000 does not mean that the district court could not order
restitution in an amount over $1,000. The jury's verdict does not mean that the State
proved beyond a reasonable doubt that the damage to [the] truck was under $1,000.
Rather, it meant that the State had not proved beyond a reasonable doubt that the damage
was over $1,000. Since restitution need not be proven beyond a reasonable doubt, the
district court did not err by awarding over $1,000 even in light of the jury's verdict." 2016
WL 4736619, at *7.

We find no error in the district court's assessment of $2,577.56 in restitution.

Affirmed.