Opinion
No. 108,165.
2013-08-29
STATE of Kansas, Appellee, v. Michael Paul WELLS, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Paul Wells appeals from his convictions for burglary, criminal damage to property, and theft. He raises four issues on appeal: (1) The district court erred in instructing the jury on reasonable doubt; (2) the district court prevented him from presenting a defense by limiting his direct examination on hearsay grounds; (3) the district court erred in answering the jury's question outside of his presence; and (4) the district court erred in setting the amount of restitution. For the reasons stated below, we affirm Wells' convictions, reverse and vacate the district court's judgment regarding restitution, and remand the case with directions to award restitution as specifically directed below.
Facts
On March 26, 2011, Don and Stacy Kennedy visited their property at 330 Southeast 93rd Street in Shawnee County, Kansas. The property consists of 57 acres that includes a lake and a house that sits about 1/2 mile from the road. The house was vacant, as it had previously been damaged in a flood. The Kennedys went to the house that day to clean it after some recent vandalism.
As the Kennedys drove up to the house, they noticed that the garage door—normally kept shut—was open. They also saw a few bags of tools on the ground and what appeared to be wiring that had been cut out of their house piled up on a nearby blanket. The Kennedys looked around and observed that the wiring had, in fact, been cut out of the house. They took the tool bags and wiring, drove home to retrieve Don's gun and taser, and then drove back to the property. Upon arrival, the Kennedys saw a truck parked in front of the driveway gate that had not been there earlier. They recognized the topper on the truck as one that had previously been stolen from them. The Kennedys called law enforcement to report that someone was on their property.
While waiting for law enforcement to arrive, the Kennedys saw two men walking towards them from the direction of the house. The Kennedys recognized one of the men as Jason Jones, whose family from which they had purchased the property. They did not recognize the other man, who was later identified as Wells. The Kennedys had not given Jones or Wells permission to be on their property. Jones jumped over the gate and the Kennedys ordered him to get on the ground. Stacy raised the taser and pointed it at the men until law enforcement arrived.
Shawnee County Sheriff's officers arrived at the scene, where they observed miscellaneous sections of copper plumbing piping and electrical wiring in the back of the men's truck. The Kennedys later did a walk-through of the house with law enforcement and pointed out the new damage to the house.
Wells was subsequently charged with burglary, criminal damage to property, and theft. At trial, Wells testified that he had gone to the Kennedys' property with Jones to fish in the lake and that he thought Jones had permission to be on the property. Wells knew that Jones had previously lived there and that Jones' mother owned land on the other side of the lake. Wells denied that he had stolen anything from the Kennedys' house and claimed he only went to the property to fish and to make some money by cleaning out Jones' mother's ditch.
A jury convicted Wells as charged. The district court sentenced Wells to a 24–month term of probation and found him to be jointly and severally liable with Jones for restitution in the amount of $155,350.
Analysis
On appeal, Wells asserts the following claims of error: (1) The district court erred in instructing the jury on reasonable doubt; (2) the district court prevented him from presenting a defense by limiting his direct examination on hearsay grounds; (3) the district court erred in answering the jury's question outside of his presence; and (4) the district court erred in setting the amount of restitution. Each of these allegations is addressed in turn.
1. Reasonable Doubt Instruction
Wells contends the district court erred in instructing the jury on reasonable doubt. The district court used an older version of PIK Crim.3d 52.02 when it instructed the jury:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
This instruction is identical to the new version of PIK Crim.3d 52.02 jury instruction except for one word. PIK Crim.3d 52.02 reads:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Wells claims that the district court should have given the newer version of PIK Crim.3d 52.02 and that the error resulted in structural error warranting automatic reversal.
Wells did not object to the instruction, so any error requires reversal only if the error was clearly erroneous and we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. See K.S.A.2012 Supp. 22–3414(3); State v. Williams, 295 Kan. 506, Syl. ¶¶ 3–5, 286 P.3d 195 (2012).
In our Supreme Court's recent decision in State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013), the court rejected the argument made by Wells here, holding that “[w]hile the older PIK instruction used in Herbel's trial was not the preferred instruction, it was legally appropriate.” Herbel controls. Because the instruction given was legally appropriate, there was no error and we need not conduct a reversibility inquiry. See Williams, 295 Kan. at 516 (“Only after determining that the district court erred in giving or failing to give a particular instruction would the reviewing court engage in the reversibility inquiry.”).
2. Fair Trial
Wells alleges the district court violated his right to a fair trial by depriving him of his right to present a defense when it excluded certain testimony as hearsay. During direct examination, Wells attempted to testify that Jones had told Wells that he wanted to go to the Kennedys' property to fish. Because Jones was unavailable to testify, the district court sustained the State's hearsay objections. Wells claims that the exclusion of this testimony was in error because it was admissible to explain his state of mind and intent for being on the Kennedys' property.
“[A] defendant is entitled to present his or her defense, and a defendant's fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. [Citation omitted.] But that right is not unlimited. ‘[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.’ [Citation omitted.] Furthermore, when a criminal defendant is allowed ‘to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error.’ [Citation omitted.]” State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009).
Whether the district court's ruling interfered with Wells' right to present a defense is subject to unlimited review. See Wells, 289 Kan. at 1236.
When considering a challenge to a district court's evidentiary ruling, an appellate court must first consider whether the evidence is relevant. Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60–401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. The concept of relevance under Kansas law includes both whether the evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 (2009).
Once relevance is established, evidentiary rules governing admission and exclusion may be applied, either as a matter of law or in the exercise of the district court's discretion depending on the contours of the rule in question. When the adequacy of the legal basis of a district court's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo. Dixon, 289 Kan. at 70.
Probative evidence “ ‘ “furnishes, establishes or contributes toward proof.” ‘ “ State v. Garza, 290 Kan. 1021, 1027, 236 P .3d 501 (2010). For evidence to be material, the evidence must “ ‘ “be significant under the substantive law of the case and properly at issue.” ‘ “ State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). In order to convict Wells of the charged crimes, the State was required to prove that Wells had the specific intent to commit the crimes. Evidence relating to Wells' intent for being on the Kennedys' property was obviously probative and material to Wells' defense; therefore, testimony that Jones had told Wells that he wanted to go to the Kennedys' property to fish was relevant.
Even though the evidence was relevant, however, it was not necessarily admissible. Jones was not available to testify at trial; therefore, the introduction of any statements made by Jones would constitute hearsay. Hearsay is “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 60–460. “The theory behind the hearsay rule is that when a statement is offered as evidence of the truth of the matter stated, the credibility of the declarant is the basis for its reliability, and the declarant must therefore be subject to cross-examination.” State v. Becker, 290 Kan. 842, 846, 235 P.3d 424 (2010) (citing Boldridge v. State, 289 Kan. 618, 634, 215 P.3d 585 [2009] ). However, statements offered into evidence not to prove the truth of the matter asserted but “to show their effect on the listener” do not constitute hearsay. Becker, 290 Kan. at 847. A statement offered to prove the effect on the listener is admissible through the person who heard it. State v. Harris, 259 Kan. 689, 698, 915 P.2d 758 (1996).
An appellate court reviews a trial court's admission or exclusion of hearsay statements for an abuse of discretion. State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007). This review includes a determination over whether the district court's discretion was guided by erroneous legal conclusions. State v. Race, 293 Kan. 69, 76, 259 P.3d 707 (2011).
Wells was the sole witness to testify for the defense. During direct examination, defense counsel asked Wells why he had been on the Kennedys' property. Wells answered, “[Jones'] mom's land is right on the other side of the lake, and he was at my house and was just off-hand saying something about wanting to go fishing and—.” The State objected, raising a hearsay objection because Jones had not testified. Defense counsel argued that the testimony was not hearsay because it was not offered for the truth of the matter asserted; rather, the testimony went to Wells' state of mind regarding his intent for being there. The district court sustained the State's objection. Thereafter, the following exchange occurred:
“Q. (By Mr. Desch [defense counsel:] ) [Wells], why were you there?
“A. That's what I was—I wanted to do more fishing.
“Q. Okay. Don't tell us what [Jones] told you. Just tell us what you thought you were going to do at this place.
“A. Well, I've kind of got to tell you what he said, don't I? He said his mom had—“
The State raised another hearsay objection, which the judge again sustained, telling Wells, “[Y]ou can't testify as to what [Jones] told you ... because he's not here.” Wells' testimony continued as follows:
“Q. (By Mr. Desch) What was your purpose for going with Jason?
“A. To check out the fishing. He said
“Q. Wait. I'm sorry.
“A. I can't say he said, okay. It was half his mother's pond, her lake or pond.
“Q. Was it your understanding that he used to live there?
“A. Yes.
“Q. Okay.
“A. He helped build the place.
“Q. Okay. Was it your understanding that he was supposed to be able to fish there?
“A. Yes.
“Q. Did you have any reason to believe he didn't have the permission to fish where he wanted to fish?
“A. No.
“Q. Did he give you—without saying what he said, did he give you any other general indication he was going to pirate fish?”
Thereafter, the district court once again sustained the State's objection. Defense counsel continued to question Wells about going to the Kennedys' property:
“Q. Okay. How did you end up—well, how did the truck end up in front of the Kennedy[s'] property—or in the Kennedy[s'] property?
“A. I still don't know because I was—he said he was going to run up to the barn to do something.
“[The prosecutor]: Judge, I'm going to object.
“MR. DESCH: I
“THE COURT: Let me explain something. It's your witness. Your witness is testifying about what the other person did or said.
“MR. DESCH: He said he doesn't know.
“THE COURT: He said what?
“MR. DESCH: He said he doesn't know, so I'm getting there.
“THE COURT: No, let me explain, Mr. Desch.
“MR. DESCH: Yes.
“THE COURT: I understand the question you asked him is an appropriate question, but the witness is explaining what the other person said to him
“MR. DESCH: Okay.
“THE COURT:—which is what I've already sustained an objection on hearsay ground. So why don't you
“MR. DESCH: I'm trying.
“THE COURT:—ask another question.”
Defense counsel went on to question Wells about what he and Jones did at the Kennedys' property. Wells denied that he had done any damage to, or stolen anything from, the property. Wells further testified as to his reason for going to the property:
“Q. It wasn't your conscious decision to go there, was it?
“A. No.
“Q. Okay. What was your actual goal when going out with [Jones]? What was it?
“A. To check out the fishing spot and clean out his mom's ditch
“Q. Okay.
“A. —to make a little money.”
Wells argues the district court erred in limiting his testimony because it denied him the opportunity to fully explain to the jury why he was on the Kennedys' property on March 26, 2011. Wells alleges that in order to fully explain his actions and prove his theory of defense, he needed to be able to tell the jury that Jones told Wells that he wanted to go to the property to fish and clean out his mother's ditch. Wells claims that Jones' statement to this effect was not offered to prove the truth of the matter asserted; rather, it was offered to show Wells' state of mind at the time the men went to the Kennedys' property.
For support, Wells relies primarily on State v. Getz, 250 Kan. 560, 830 P.2d 5 (1992). In Getz, the defendant was charged with theft of two horses. At trial, Getz testified that one evening she returned home to discover the horses on her property. Getz claimed that she believed the horses belonged to Perry Patton, who was living with her. Getz sought permission to testify that Patton told her that he had purchased the horses and had asked her to sell the horses for him. Because Patton was not available to testify at trial, the trial judge found Patton's statements to Getz were inadmissible hearsay. On appeal, the Getz court found that the evidence had been improperly excluded, determining that the evidence was not offered to prove the truth of the matter, i.e., whether Patton had bought the horses. Rather, Patton's statement was relevant to the question of Getz' intent. The court noted that had the jury considered Patton's statements to Getz, the jury could have concluded that Getz did not intend to permanently deprive the true owner of the horses and was therefore not guilty of theft. Thus, the court reversed the conviction finding that the erroneous exclusion of the evidence was not harmless error. 250 Kan. at 568–71.
Wells asserts that Getz is applicable to the present case because like the statements in Getz, Jones' statement was not being introduced to prove the truth of the matter asserted, i.e., whether Jones really wanted to go to the Kennedys' property to fish and clean out his mother's ditch. Rather, Wells contends, this statement was offered to show Wells' state of mind as he accompanied Jones to the Kennedys' property. Wells notes that criminal intent is an essential element of his crimes and therefore proving why he was on the property was vital to showing his lack of intent to commit the crimes. If the testimony had been admitted, Wells claims, the jury could have concluded that he did not intend to permanently deprive the Kennedys of their property. Wells concedes that he was allowed to testify as to the substance of his reason for being on the property, but he claims that the district court's rulings “significantly diminished” the full effect of the evidence that was presented in his defense because he was unable to establish a good-faith basis for his belief that it was okay to be on the Kennedys' property.
Wells' argument is persuasive, as it appears Jones' statement was not introduced to prove the truth of the matter asserted, i.e., Jones' reason for going to the Kennedys' property. Jones' statement was offered instead to show its effect on Wells' intent and subsequent conduct. Therefore, the district court abused its discretion in excluding Jones' statement to Wells.
We must now determine whether this error was prejudicial or harmless. Because Wells is alleging a violation of his constitutional right to present a defense, we review the error under the constitutional harmless error standard. Under this standard, the State, as the party benefitting from the error, has the burden to establish beyond a reasonable doubt that the error “will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P .3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
To that end, the State asserts Wells was allowed to present evidence as to his reason for being on the Kennedys' property on March 26, 2011. Wells testified directly that he was there to fish and clean out Jones' mother's ditch and that Wells did not initiate the trip to the property. Wells further testified that he had no reason to believe that Jones did not have permission to fish on the property. By comparison, the information Wells hoped to add with the addition of Jones' statement would have added little to Wells' theory of defense and did not affect the outcome of the trial. “When a district judge allows a criminal defendant to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error. [Citations omitted.]” State v. Jones, 287 Kan. 547, 555, 198 P.3d 756 (2008). Given the nature of the excluded evidence and the testimony at trial, we find the State has met its burden to prove beyond a reasonable doubt that the error “did not affect the outcome of the trial in light of the entire record.” See Ward, 292 Kan, 541, Syl. ¶ 6. Because the erroneous exclusion of the hearsay testimony was harmless beyond a reasonable doubt, the district court's decision to exclude such evidence did not violate Wells' right to a fair trial and his right to present a defense.
3. Jury Question
Wells argues that the district court committed reversible error when in response to a jury question submitted during deliberations, the district court responded in writing rather than calling the jury into the courtroom to communicate the answer.
During deliberations, the jury submitted the following question to the district court: “ ‘May we view Officer[s] Roberts[’] and Rice's reports?' “ The judge read the request on the record, in the courtroom, while both parties were present. The judge and both counsel discussed how to respond to the question. The judge then prepared a written answer to the question that stated: “ ‘These reports were not introduced into evidence. Please refer to Instruction Number 2.’ “ Instruction No. 2 provided, in relevant part: “You must disregard any testimony or exhibit which I did not admit into evidence.” Neither party objected to this answer, and the bailiff then delivered the written answer to the jury in the jury room. Neither party objected to the procedure followed by the district court in responding to the jury's question.
Wells now contends that the district court's procedure of sending a written answer to the jury's question violated K.S.A. 22–3420(3) and his constitutional rights. Specifically, Wells claims that responding to the jury's question in writing cannot be considered harmless because it constituted structural error, and the cumulative effect of the error denied him a fair trial, requiring the reversal of his convictions.
A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. State v. Englehardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
Before reaching the merits of Wells' argument, we note that Wells has raised this issue for the first time on appeal. Wells failed to object to the district court's written answers to the jury's question. Moreover, Wells did not challenge the district court's procedure in responding to the question in writing rather than calling the jury into the courtroom to communicate the answer. Generally, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). There are exceptions to this general rule, but Wells does not argue that any of these exceptions apply. Indeed, even trial errors affecting constitutional rights may be waived in the absence of a proper objection. See State v. Gandina, 284 Kan. 354, 372, 160 P.3d 854 (2007).
Although Wells arguably failed to preserve this issue for appeal, our Supreme Court has previously addressed an identical issue for the first time on appeal. See State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999). Additionally, a panel of this court recently reached the same decision in State v. Womelsdorf, 47 Kan.App.2d 307, 321, 274 P .3d 662 (2012), petition for rev. filed May 10, 2012 (“Because our Supreme Court has previously addressed this issue for the first time on appeal, we will address the merits of Womelsdorf's claim.”). Thus, we will address the merits of Wells' allegation.
Wells first argues that the district court's manner of responding to the jury's question was contrary to K.S.A. 22–3420(3) and violated his constitutional right to be present at every critical stage of trial. He cites State v. Coyote, 268 Kan. 726, 1 P.3d 836 (2000), for support.
K.S.A. 22–3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he [or she] voluntarily absents himself [or herself], and his [or her] counsel and after notice to the prosecuting attorney.”
Our Supreme Court recently rejected this same argument in State v. Wells, 296 Kan. 65, 290 P.3d 590 (2012). There, the defendant argued that despite the presence and participation of all the parties in answering the jury's question, the court deprived her of her constitutional and statutory rights to be present at all critical stages of trial when it responded to the jury question via a written note. The defendant cited both the language of K.S.A. 22–3420(3) and the Coyote decision to support her claim. The Supreme Court found the plain language of K.S.A. 22–3420(3) did not support the defendant's argument because the statute requires the presence of the defendant only if the jury, after making a request, is taken into the courtroom so that it can hear information from the district court on a point of law. The Supreme Court noted its holding in Coyote was based on the fact that the defendant was not present during the court's discussion with the attorneys on how to respond in writing to the jury's question. Wells, 296 Kan. at 91.
The Supreme Court discussed the protection necessary under the circumstances as follows:
“[T]o ensure that a defendant's constitutional and statutory right to be present at critical stages of his or her trial is protected, a defendant must be present during the court's discussion with the attorneys and ultimate decision on how to respond to a written jury question. But there is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present. See Coyote, 268 Kan. at 731 (noting that the district court's handling of a second written jury question complied with Kansas law; the court's conduct was described as follows: ‘The court advised counsel and the defendant of the question, provided all with an opportunity off the record for input, and after the hearing, resolved the question submitted. Then the court, in writing, answered the jury question.’); accord [State v.] Burns, 295 Kan. [951,] 956–57[, 287 P.3d 261 (2012) ] (approving of procedure outlined in Coyote for answering written question from jury).” Wells, 296 Kan. at 92.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Wells was present during the district court's discussion with the attorneys and ultimate decision on how to answer, in writing, the jury's question. Based on the Supreme Court's holding in Wells, the district court did not violate Wells' constitutional and statutory rights to be present at all critical stages of his trial when it answered the jury's question with a written note instead of answering the question in open court while Wells was present.
Wells also claims that the district court's written response to the jury question was structural error because it violated his rights to an impartial judge and a public trial, which are guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
This argument was addressed in Womelsdorf. The Womelsdorf court distinguished State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003), a case where a defendant's right to an impartial judge was violated when a readback of the victim's testimony occurred in the jury room, without the judge or the defendant present:
“The Brown court determined that the readback was a critical stage of the proceeding because it furnished the jurors with information they needed to decide the case. Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial. As the State points out, there is a distinct difference between the lengthy process of a readback, which also necessarily involves the court reporter, and the process of delivering a short written answer to a jury question which does not provide additional information. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorfs constitutional right to an impartial judge.” Womelsdorf, 47 Kan.App.2d at 324.
The Womelsdorf panel also analyzed whether a written response to a jury question violates a defendant's right to a public trial:
“As stated above, the judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to a public trial.” 47 Kan.App.2d at 325.
We find the analysis in Womelsdorf persuasive. Thus, the procedure used by the district court here—responding to the jury's question in writing—did not violate Wells' constitutional rights to an impartial judge or a public trial. The judge read the jury question in open court and both counsel discussed how to respond. The written answer, which is available to the public as part of the court file, merely referred the jury to the instructions previously given in open court in Wells' presence. See State v. Bolze–Sann, No. 105,297, 2012 WL 3135701, at *6–7 (Kan.App.2012) (unpublished opinion) (adopting the Womelsdorf analysis and reaching same conclusion), petition for rev. filed August 24, 2012.
Finally, Wells argues that the cumulative effect of the errors alleged above entitle him to reversal of his convictions. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when “ ‘ “the totality of circumstances substantially prejudiced the defendant and denied him [or her] a fair trial.” ‘ “ Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). But “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because Wells cannot establish any error occurred with respect to the procedure followed by the district court in responding to the jury question, his cumulative error claim fails.
4. Restitution
Wells claims the district court erred in ordering him to pay restitution in the amount of $155,350. Specifically, Wells contends there is insufficient evidence to support the restitution amount and that the amount is excessive given the estimate to replace the wiring and plumbing in the house.
An appellate court reviews the imposition of restitution under an abuse of discretion standard. State v. Dexter, 276 Kan. 909, 912, 80 P.3d 1125 (2003). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550. Stated another way, an abuse of discretion will be found only when no reasonable person would have taken the view adopted by the district court. State v. Sellers, 292 Kan. 346, 353, 253 P.3d 20 (2011). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Martis, 277 Kan. 267, 280, 83 P.3d 1216 (2004).
A district court is permitted to impose restitution for “damage or loss caused by the defendant's crime.” K.S.A.2010 Supp. 21–4603d(b)(1). The appropriate amount of restitution is the amount required to reimburse the victim for the actual loss suffered. State v. Hunziker, 274 Kan. 655, 663–64, 56 P.3d 202 (2002). Proof of a victim's damage or loss in a criminal suit does not entail the same rigidity with respect to proof of value in a civil suit, and a district court has substantial discretion in determining the amount of restitution. 274 Kan. at 660;State v. Phillips, 45 Kan.App.2d 788, 794, 253 P.3d 372 (2011). However, “the district court's determination of restitution must be based on reliable evidence yielding a ‘defensible restitution figure.’ “ 45 Kan.App.2d at 794. Additionally, in ordering an amount of restitution, the district court must have a causal link between the victim's damages and the defendant's unlawful conduct. State v. Summons, 276 Kan. 574, 575, 78 P.3d 470 (2003).
After Wells was charged in this case, Don Kennedy filed a notice of intent to seek restitution in the amount of $52,319.50. Attached to the notice was an estimate of $32,419.50 for replacing the electrical wiring in the house and an estimate of $19,900 for replacing the plumbing system. At sentencing, the State presented testimony from Don about the estimates, as well as testimony from Tim Morstorf, owner of M & M Services, who had prepared the electrical estimate for Don.
Don testified that he had originally purchased the property for approximately $200,000 and later added horse corrals and a horse barn. Don stated that he had tried to sell the property for $250,000 after the flood damage. He lowered the price to $200,000 after windows were broken out and other property damage was sustained as a result of vandalism unrelated to the acts at issue in this case. The electrical and plumbing damage resulting from the vandalism at issue in this case was not part of the first vandalism. Don claimed the house became virtually unsellable after the electrical and plumbing damage and he did not have the money to repair it; thus, he was forced to take the house off the market. In light of this circumstance, Don claimed Wells' crimes damaged him in the amount of $200,000, the asking price of the house at the time the vandalism at issue here occurred.
On cross-examination at sentencing, defense counsel introduced into evidence a 2011 Shawnee County appraisal report and questioned Don about it:
“Q. Does that reflect an accurate depiction of what your property's valued by the appraiser's office?
“A. I really couldn't tell you if it is or it isn't.
“Q. Okay.
“A. It looks like based on this sheet it is.
“Q. Okay. Does that reflect that the house at—in 2011 was $44,000?
“A. I don't know if that's what it means or not. It doesn't specifically state that the house or—it doesn't say exactly.
“Q. Okay. I'll point you to this. Under the line improvement, what does that say?
“A. $41,130.”
Don thereafter agreed that according to the report, the appraisal office had listed the house “as kind of a total loss after the flood” and that the estimates to replace the electrical and plumbing damage were higher than the total value of the house.
After presenting its evidence, the State requested restitution in the amount of $52,319.50 for the replacement of the plumbing and electrical wiring. The State further claimed that the Kennedys were also entitled to restitution in the amount of $160,000—the difference between the amount their house was listed for prior to the damage ($200,000) versus the 2011 appraisal (approximately $40,000).
In response to the State's request, defense counsel argued that the appraisal had been done after the flood, but before the electrical and plumbing damage occurred; that there was no causal link between Wells' conduct and the Kennedys' damages; and that the State failed to show the actual market value of the damages.
The district judge later entered the restitution award, stating:
“As far as restitution, both parties have made some valid arguments in this case. But [defense counsel] is right, fair market value of the property itself is what we look at in this case, and in that situation, what we look at is the fair market value of the property prior to the damage and the fair market value after the damage.
“What I find based on the testimony that was presented by the parties and the exhibits in this case is that the fair market value of the property after the flood, but prior to the damage caused by [Wells], was $200,000. After the damage, the fair market value, based on the Shawnee County Appraiser report, is $44,650. That means the restitution that's owed is $155,000—$155,350, and that is what I will order in this case, and I'll order that jointly and severally....”
On appeal, Wells argues the district court erred in ordering restitution in the amount of $155,350 because the record is not clear as to how the court determined this amount. Specifically, Wells claims that the district court's finding that the 2011 appraisal of $44,650 was determined after the removal of the wiring and plumbing is not supported by the record. Wells also asserts that there was no evidence presented to show that the $200,000 list price for the property was the correct fair market value. Finally, Wells alleges that it was unreasonable for the court to find that the removal of the wiring and plumbing—estimated at $52,319.50—would cause the Kennedys' property to decrease in value by $155,350, an amount that greatly exceeds the Kennedys' actual loss.
Kansas courts have established rules for determining restitution in property crime cases involving the loss of or damage to personal property. See State v. Smardo, No. 101,194, 2009 WL 2506268, at *3 (Kan.App.2009) (unpublished opinion). The loss of the electrical wiring and plumbing in the Kennedys' house is more akin to real property than personal property. Although no specific formulas have been developed for calculating the value of real property partially damaged by a defendant, the rules pertaining to personal property are equally applicable in real property cases. See Smardo, 2009 WL 2506268, at *3 (applying personal property rules to valuation of a damaged barn); see also PIK Civ. 4th 171.10; PIK Civ. 4th 171.21 (applying same measure of damages to personal and real property when repairs can restore property to original condition).
When personal property is damaged and the property can be restored to its previous undamaged condition, “the measure of restitution is the reasonable cost of repairs plus a reasonable amount for loss of use of the property while repairs are made.” Phillips, 45 Kan.App.2d at 795. When damaged property cannot be repaired, “the amount of restitution is the difference between the fair market value of the property immediately before it was damaged and the fair market value after it was damaged.” 45 Kan.App.2d at 795. In either circumstance, however, “ ‘the restitution amount should not exceed the reasonable market value ... immediately before the damage.’ “ 45 Kan.App.2d at 795. Finally, in situations where an item of personal property has “no readily ascertainable fair market value ..., the district court may consider other factors in determining restitution, including the purchase price, condition, age, and replacement cost of the property, as long as the valuation is based on reliable evidence which yields a defensible restitution figure.” State v. Moloney, 36 Kan.App.2d 711, 712, 143 P.3d 417,rev. denied 282 Kan. 794 (2006).
In cases where the partially damaged real property may be repaired, the repair costs may properly guide restitution calculation. See Smardo, 2009 WL 2506268, at *3. Here, the district court based its award on fair market value, without first considering whether the property could be repaired. There is no indication that the damage done by the removal of the electrical wiring and the plumbing could not be restored to its previous undamaged condition; indeed, the State presented evidence that these repairs could be done for $52,319.50. Thus, the proper measure of restitution should have been “the reasonable cost of repairs plus a reasonable amount for loss of use of the property while repairs are made.” Phillips, 45 Kan.App.2d at 795.
Moreover, the district court's fair market value award is not supported by the record. Although the court determined that the 2011 appraisal was done after the electrical and plumbing damage occurred, there was no date on the appraisal. Additionally, it is unclear what the amount of the appraisal actually was. During Don's cross-examination at sentencing, defense counsel indicated that the house was valued at $44,000. Don noted that the appraisal did not specifically reference the house, but he agreed that the appraisal listed improvements in the amount of $41,130. The district court and defense counsel later appeared to agree that the property had been appraised at $44,650. In addition, the district court's reliance on the fact that the house had previously been listed for sale for $200,000 was speculative, as listing amounts are fluid and do not necessarily reflect fair market value. This court has defined fair market value as “the price that a willing seller and a willing buyer would agree upon ... in an arm's-length transaction.” State v. Baxter, 34 Kan.App.2d 364, 366, 118 P.3d 1291 (2005). Given the previous damage to the house caused by the flooding and prior vandalism, it would be difficult to calculate the restitution award based on fair market value.
The purpose of restitution is to reimburse the victim for the actual loss suffered. Hunziker, 247 Kan. at 663–64. Here, the actual loss suffered by the Kennedys as a result of Wells' actions was the loss of their electrical wiring and plumbing. Returning the electrical wiring and plumbing to their original condition required their replacement. Under these circumstances, then, the replacement cost figure of $52,319.50 constitutes a fair starting point from which to assess an amount for restitution. Don testified that the house had to be taken off the market because he could not afford this cost. Presumably, after these repairs are done, he will be able to put the house back on the market.
The district court's determination of restitution was not based on reliable evidence that yielded a “defensible restitution figure.” See Phillips, 45 Kan.App.2d at 794. Based on the district court's reasoning, the Kennedys would receive an award nearly three times the amount of the actual damages. Under these circumstances, the district court abused its discretion in calculating the restitution award and it must be vacated. For this reason, we vacate the district court's judgment regarding restitution and remand with directions to award restitution based on the reasonable costs of repairing the electrical wiring and plumbing, plus a reasonable allowance for the loss of use of the property during those repairs.
Affirmed in part, reversed in part, and remanded with directions.