Opinion
Nos. 110,440 110,441.
2014-12-5
STATE of Kansas, Appellee, v. Robert Lee TAYLOR, Appellant.
Appeal from Dickinson District Court; Benjamin J. Sexton, Judge.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general for appellee.
Appeal from Dickinson District Court; Benjamin J. Sexton, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ. PER CURIAM.
Robert Lee Taylor submitted docketing statements appealing two separate cases. Case No. 110,440 was an appeal from case No. 12–CR–262, where the State had charged Taylor with aggravated robbery and possession of methamphetamine. Taylor indicated that the issue to be raised was whether the district court had erred in sentencing him. Case No. 110,441 was an appeal from case No. 12–CR–268, where the State had charged Taylor with theft. Again, Taylor indicated the issue raised was whether the court had erred in sentencing him. On October 21, 2013, the two appeals were consolidated into case No. 110,440. However, in his brief, Taylor has abandoned any issue associated with 12–CR–262. His sole issue on appeal is whether the court erred in awarding restitution in 12–CR–268.
Facts
In 12–CR–268, the State charged Taylor in the theft of rail iron material including a derailer from Abilene & Smoky Valley Railroad Association (Association).
Taylor pled no contest to theft. The district court sentenced him to 16 months in jail. The Association informed the court that the value of the rail iron Taylor took was approximately $4,000. In response, Taylor told the court he thought the amount of restitution would be limited to the amount of money he had received when he scrapped the rail iron.
The district court held a restitution hearing to determine the amount of restitution in both cases. The parties informed the court they had reached an agreement in 12–CR–262. The court found this agreed upon amount was appropriate. In 12–CR–268, the State requested $4,030 in restitution, an amount Taylor contested. To prove the amount, the State called Laura Taylor and Joe Minick to testify.
Laura Taylor—who is not related to the defendant—works for Salina Iron and Metal, a scrap metal recycling company. She testified Taylor had brought scrap metal to her company trying to sell it. Laura recognized the material as railroad iron. One of the pieces was a derailer—a piece of equipment that derails trains. If a train rolls over it while it is engaged, the train will be derailed. When it is not in use, it folds away unobstructed. It can be manually or remotely operated. Derailers are used in situations where there is a risk of greater damage to equipment, injury, or death if equipment is allowed to proceed past the derail point. The market determines the price paid. There are only two approved contractors from whom Laura is authorized to buy railroad iron. Taylor was not one of them. However, she accepted the rail iron and paid Taylor $176, the market price for scrapping the metal. She contacted Wade Isaacson of the BNSF Police Department to report Taylor selling railroad iron. She took photos of the rail iron Taylor had brought in and provided those pictures to Isaacson.
Isaacson instructed Laura to destroy the derailer. She testified that Isaacson was concerned about the derailer being stolen from Salina Iron and Metal and ending up in the wrong hands. The derailer was destroyed. The record does not indicate what happened to the rest of the rail iron Taylor had scrapped at Salina Iron and Metal.
Joe Minick also testified at the restitution hearing. Minick is responsible for the maintenance and acquisition of materials for the Association. The Association is a nonprofit tourist railroad that runs through Abilene. Because there are various sized rail lines, it can be difficult for Minick to find the particular parts the Association needs. Specifically, the derailer for an 85–pound rail line is obsolete and no longer being produced, so the Association relies on the used market to fulfill its needs. Therefore, although the items Taylor allegedly stole were old and used, they had value to the Association. The Association stores its materials in a warehouse. Shortly after Taylor sold the rail iron to Salina Iron and Metal, the police asked Minick to check the Association's warehouse for missing parts. Minick noticed an empty pallet that should not have been empty. He identified the photos Laura had taken of the rail iron Taylor had sold her as the missing equipment. He recognized the various parts as equipment the Association had recently acquired.
Minick testified about the cost of purchasing rail iron and equipment. The Association receives equipment from a small group of sellers or as scrapped parts of other railroads being taken up. Minick had personally purchased some of the lost items. The Association did not have a clear record regarding the fair market value of the items lost. However, Minick determined that the reasonable replacement value of the rail iron was $4,030. He based this determination on price bids received from Omaha Track Material (Omaha), a seller of the same equipment. Based on his research and experience, Minick felt this bid was reasonable. He testified he used the bid from Omaha because his other supplier is always higher. He assigned $1,200 of that value to the derailer specifically.
At the restitution hearing, Taylor introduced as an exhibit two emails concerning the restitution amount prosecutors told him he would be liable for during plea negotiations. Taylor argued he agreed to the plea based on the representation about the restitution amount made in the emails. However, this exhibit does not appear to be included in the record. Additionally, the plea agreement did not include a set restitution figure. To support his request for a lower restitution amount based on the amount he received for the scrap metal, Taylor argued that Isaacson—who did not have ownership in the derailer—had ordered it destroyed, and the salvage yard, who also did not own it, did in fact destroy the derailer.
The district court found that the plea agreement had not set a specific restitution amount. The court also found the derailer had been ordered destroyed by Isaacson in the course of his employment as a BNSF police officer out of a concern for safety, not malfeasance. The court found the victim was entitled to receive the fair market value of the property stolen, and the victim was the Association. Based on the evidence presented, the court determined the fair market value of the rail iron stolen from the Association was $4,030. The court therefore ordered Taylor to pay $4,030 in restitution to the Association. Taylor, though his counsel, immediately orally notified the court of his notice of appeal. On that same day, Taylor timely filed his notice of appeal.
Restitution in Case 12–CR–268
Taylor first argues the district court abused its discretion when it ordered him to pay $4,030 in restitution.
“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).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594(2012).
The burden of establishing an abuse of discretion lies with the party asserting the error. State v. Tague, 296 Kan. 993, 1002, 298 P.3d 273 (2013).
Taylor complains of the restitution figure ordered by the district court. First, he argues that the derailer could have been returned to the Association had Isaacson not ordered it destroyed. Second, Taylor argues that “it is impossible to determine whether [his] actions caused the loss of the Association” without evidence explaining what happened to the remainder of the rail iron.
A district court's ability to impose a restitution plan during sentencing is governed by K.S.A.2013 Supp. 21–6604(b)(1), which provides: “[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, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” The purpose of restitution is to compensate the victim and to deter and rehabilitate the defendant. State v. Cox, 30 Kan.App.2d 407, 409, 42 P.3d 182 (2002).
The district court has considerable discretion to choose the method of determining the amount of restitution. State v. Casto, 22 Kan.App.2d 152, 153, 912 P.2d 772 (1996). Therefore, when there is no easily ascertainable fair market value, the court may consider other factors including the purchase price, condition, age, and replacement cost of the property so long as the valuation is based on reliable evidence which yields a defensible restitution figure. State v. Phillips, 45 Kan.App.2d 788, 795, 253 P.3d 372 (2011).
The district court also has considerable discretion in determining the amount of restitution. State v. Applegate, 266 Kan. 1072, 1079, 976 P.2d 936 (1999). Fair market value of the property at the time of the theft is the usual measure of restitution. Phillips, 45 Kan.App.2d at 795. “The appropriate amount 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.” Hall, 297 Kan. at 713–14.
Restitution orders generally require a causal link between the victim's damages and the defendant's unlawful conduct. See State v. Hall, 298 Kan. 978, 990–91, 319 P.3d 506 (2014) (causal connection between relocation expenses of victim of attempted rape by defendant who was a maintenance worker at victim's apartment complex where the attack took place); State v. Beechum, 251 Kan. 194, 202–03, 833 P.2d 988 (1992) (causal connection existed between defendant murdering his ex-wife and the father's lost wages and airfare expenses he incurred to accompany the victim's son to New York to live with him); State v. Wells, 18 Kan.App.2d 735, 736–37, 861 P.2d 828 (1993) (causal connection between victim's medical expenses and the defendant's battery when he acted in concert with others); State v. Hargis, 5 Kan.App.2d 608, 611, 620 P.2d 1181 (1980), rev. denied 229 Kan. 671 (1981) (causal connection between defendant's unlawful possession of a firearm and victim's wounds when defendant's gun discharged). However, our Supreme Court recently noted that the legislature did not limit restitution amounts to damages caused by the defendant's crime in Hall, 298 Kan. at 989 (“By its express language, however, K.S.A. 21–4603d(b)(1) [the predecessor of K.S.A. 21–6604(b)(1) ] also grants authority to the district court to impose restitution beyond such loss.”).
A district court's restitution amount will be upheld so long as: (1) it is based on reliable evidence; (2) that evidence yields a defensible restitution figure; and (3) the requisite causal connection exists. Hall, 297 Kan. at 714.
In this case, the district court had considerable discretion to determine the method of calculating the figure and the amount of restitution to make the Association whole. See Applegate, 266 Kan. at 1079; Casto, 22 Kan.App.2d at 153. In this case, there are potentially two fair market values of the rail iron taken by Taylor: the value of the iron to someone who would use the parts for the intended purpose or the value of the iron as scrap metal. The court found that the victim was the Association—a victim who would use the rail iron for its intended purpose, not as scrap metal. Therefore, the district court determined that the appropriate amount of restitution was $4,030, the fair market value of the rail iron used as rail iron, not scrap metal. The court considered the cost of the fair market value of replacement parts to support that figure. The court noted that the property included rail irons that are no longer produced; therefore the Association relied on the used market for replacements. The State, through Minick, provided bids of the cost of replacement parts for the goods taken by Taylor. The court considered those bids the best evidence of the fair market value of the property and ordered Taylor to pay $4,030 in restitution. The district court's restitution was a reasonable figure, established by reliable evidence, supported by a causal link of Taylor's actions and the Association's loss. This was within the court's considerable discretion.
Taylor's argument that “it is impossible to determine whether [his] actions caused the loss to the Association” is not well taken. The record indicates that Taylor alone stole the Association's property from their warehouse. He must accept the consequences of his conduct. Taylor's pointing a finger towards Isaacson as the cause of the loss for ordering the derailer destroyed is unsupported by the record. Quite simply, had Taylor not stolen from the Association and sold the property as scrap metal, the Association still would have its property. Taylor cannot steal from the Association, sell the property for scrap, and then blame someone else for the Association's loss.
Abandoned Points
In his docketing statement, Taylor indicated his intent to appeal the restitution ordered in 12–CR–262. However, Taylor failed to brief or argue this issue. When a point is incidentally raised but not argued, it is deemed abandoned. Campbell v. City of Leavenworth, 28 Kan.App.2d 120, 126, 13 P.3d 917 (2000), rev. denied 270 Kan. 897 (2001). Therefore, any argument regarding the restitution ordered in 12–CR–262 has been abandoned.
Affirmed.