Opinion
Nos. 106,857 107,081.
2013-03-8
STATE of Kansas, Appellee, v. Joshua ZIMMERMAN, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Sam S. Kepfield, of Hutchinson, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Daniel D. Gilligan, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Joshua Zimmerman of one count of driving while a habitual violator, third offense, and one count of criminal damage to property. As part of his sentence, the district court ordered Zimmerman to pay $390 in restitution. Zimmerman appeals, arguing that the district court erred by (1) denying his request for a continuance to endorse an alibi witness the day before the trial began and (2) awarding restitution. Finding no error, we affirm the district court's judgment.
On October 6, 2010, at approximately 10:45 a.m., Sheriff's Deputy Rebecca Dyer of the Reno County Sheriff's office took a report from Brandon Hada, who complained of criminal damage to his property. Hada was a coowner of LCV Towing, which was located at 7445 North Yaggy Road in Hutchinson, Kansas, and was accessible by an unpaved road approximately 300 feet long. According to Hada, Zimmerman and his wife had come to retrieve a white 1985 Chevy pickup from his impound that morning. As was his practice, Hada required proof of ownership, proof of insurance, and Zimmerman's driver's license. After paying Hada, Zimmerman drove the truck out of the storage barn, accelerating quickly enough that the truck slid sideways and, according to Hada, the truck “went side-to-side” all the way back to the paved road. Hada later testified that Zimmerman's driving caused dirt to fly into the air and damaged the access road.
Dyer investigated the scene and saw tire marks and ruts in the road approximately 2 to 3 inches deep. Dyer later testified that the grass was uprooted on the access road, which she characterized as a track across a grassy field. Furthermore, Dyer saw skid marks approximately 10 feet long on the paved road that intersected the access road. Dyer photographed the scene, and those photographs were later admitted at trial.
On November 4, 2010, the State filed a complaint charging Zimmerman with one count of driving while a habitual violator, third offense, and one count of criminal damage to property. Zimmerman pled not guilty to both charges. On August 31, 2011, the day before the jury trial was scheduled to begin, Zimmerman filed a notice of alibi plea, endorsing a witness and claiming that he was not in Hutchinson on the day the alleged offenses occurred. On that same day, the district court heard argument on the notice and disallowed the alibi defense as untimely.
The trial began September 1, 2011. Dyer and Hada testified for the State. In addition to relating the events of the morning in question, Hada testified that he later repaired the damage to the access road and that he prepared a bill of $498. Hada testified that he was 100% certain that Zimmerman was the person who drove the truck and caused the damage. Margarita Zimmerman, Zimmerman's wife, testified for the defense. Margarita testified that she had gone to get her truck out of impound on the day in question and that there had been a man with her, but that the man was not her husband. She further testified that Zimmerman was not at Hada's property with her and that Zimmerman had not driven the truck.
Zimmerman also testified on his own behalf, stating that he was in Wichita on the day on question, looking for car parts with a friend. According to Zimmerman, they left Hutchinson at approximately 9 a.m. and did not return until 1:30 p.m. Zimmerman rested his defense on his assertion that he was not the man at Hada's that day. He stipulated that the division of motor vehicles had determined that he was a habitual violator and had revoked his driving privileges from August 25, 2009, to August 25, 2012, and that he knew of this status on October 6, 2010.
The jury found Zimmerman guilty of both charges. As part of the sentence, the district court ordered Zimmerman to pay $390 in restitution after conducting a separate hearing. Zimmerman timely appealed the district court's judgment.
Alibi Witness
As stated above, on the day before trial, Zimmerman filed a notice of alibi plea, contending that he was in Wichita when the alleged offense occurred, and requested a continuance in order to further investigate the alibi witnesses. K.S.A. 22–3218(1) requires that when “the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney” except that notice is not required regarding a defendant's own testimony. K.S.A. 22–3218(2) states that the notice “shall be served on the prosecuting attorney at least seven days before the commencement of the trial ... [but][f]or good cause shown the court may permit notice at a later date.” Zimmerman acknowledged that he was not in compliance with the 7–day notice requirement, but he pointed out to the district court that a continuance would allow the State to investigate the alibi as well. The State opposed the untimely notice of the alibi witness and the motion for continuance. The district judge denied the motion for continuance, stating:
“I'm not sympathetic to the defendant's just coming up with for his attorney an alibis [ sic ] witness when the defendant has known since November of last year that he was charged with these offenses. He knew the date right on the complaint, and to wait until the eve of trial to tell your attorney about an alibis [ sic ] plea, I mean that's just something that's not very smart. But I'm not going to punish the State by that delay. I mean basically I'm saying the defendant should have gotten word about what he thought was his alibis [ sic ] witness to his attorney before this week. So I'm denying the request for continuance.”
Zimmerman now argues that this ruling was in error because the district court failed to explicitly consider certain factors on the record and there was no showing that the continuance would cause prejudice to the State. The State responds that the decision to exclude the alibi witness was proper.
The parties disagree on the applicable standard of review. Zimmerman frames the issue as one concerning his constitutional right to present a defense, an issue this court reviews de novo. See State v. Suter, 296 Kan. ––––, 290 P.3d 620, 625 (2012) (“ ‘When a criminal defendant claims that a district judge has interfered with his or her constitutional right to present a defense, an appellate court reviews the issue de novo.’ [Citation omitted.]”). The State, on the other hand, frames the issue as a simple exclusion of alibi testimony based on noncompliance with the statutory notice requirements, which this court reviews for an abuse of discretion.
We agree with the State that the proper standard of review is abuse of discretion. Instate v. Gibson, 30 Kan.App.2d 937, 951, 52 P.3d 339,rev. denied 274 Kan. 1115 (2002), this court reviewed a challenge based upon a situation very similar to the instant case: The district court denied a request to endorse an alibi witness on the morning of trial. In Gibson, this court stated that “[t]he exclusion of alibi testimony because of noncompliance with the notice requirements of K.S.A. 22–3218 is within the trial court's discretion. The notice required by the alibi statute does not deprive the accused of the alibi defense but simply makes notice a prerequisite.” 30 Kan.App.2d 937, Syl. ¶ 14. In reviewing for an abuse of discretion, we determine if the district court's action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
Zimmerman cites State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976), to support his contention that the district court erred in denying the continuance. In Howard, the defendant gave proper notice of an alibi witness, but he requested a continuance during the trial in order to locate and properly subpoena the witness. The Supreme Court stated that when a continuance is requested during the trial of a case in order to secure a witness, the trial judge must weigh many factors including (1) possible prejudice to the defendant; (2) the level of diligence in attempting to secure the witness' testimony; (3) the materiality and importance of the testimony; and (4) the probability of procuring the testimony if the continuance is granted. 221 Kan. at 55.
Here, Zimmerman argues that the district court erred because it denied his request for a continuance without considering the Howard factors on the record. But the instant case is easily distinguished from Howard. In Howard, the defendant gave proper notice of his alibi witness but the defendant was unable to secure the presence of the witness at trial. Here, Zimmerman failed to give proper notice of his alibi witness and requested a continuance the day before trial in order to comply with the statutory notice requirement.
As stated above, we must determine whether the district court's action was arbitrary, fanciful, or unreasonable. Ward, 292 Kan. at 550. Here, the district court denied the untimely alibi notice and requested continuance, noting that the case had been pending for nearly a year and the notice was filed the day before the jury trial was scheduled to begin. The district judge stated that Zimmerman should not have waited “until the eve of trial” to tell his attorney about the alibi witness and that the judge was “not going to punish the State by that delay.” Under the circumstances, we are unable to conclude that the district court's action was arbitrary, fanciful, or unreasonable. Thus, we conclude the district court did not abuse its discretion in denying the continuance and excluding Zimmerman's alibi witness.
Restitution
Next, Zimmerman argues that the district court erred in awarding restitution of $390. Zimmerman contends there was insufficient evidence to support the award because the road that was damaged was a path through a pasture, not paved or graveled, and any damage was slight. The State responds that Hada's testimony regarding the nature of the damage and the cost to repair it, combined with the fact that Zimmerman presented no evidence regarding the damage or lack thereof, is sufficient to support the award.
Our Supreme Court has stated that “[q]uestions concerning the ‘amount of restitution and the manner in which it is made to the aggrieved party’ are reviewed under an abuse of discretion standard. [Citation omitted.]” State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009). As stated above, 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 differently, 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. 117, 124, 253 P.3d 20 (2011).
K.S.A.21–4610(d)(1), states:
“(d) In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
(1) make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
At the restitution hearing, the State submitted photographs of the damaged road. Additionally, Hada testified that after Zimmerman damaged the driveway, he had to fill in the road and bring it back to grade so that it would keep water from washing out the road during heavy rains. Hada prepared an estimate for the cost of the repairs required as a result of Zimmerman's actions; the bill was admitted at the hearing and amounted to $498. To calculate the total amount, Hada called Southeast Sand and Gravel to get a price on fill dirt, although he used dirt from the pasture behind his house. At trial, Hada had testified that Southeast Sand and Gravel quoted him a $9–per–yard price for nondelivered dirt and he used 24 half-yard buckets of dirt in making the repairs.
Hada also included the charge for the 35 gallons of propane he used in his tractor and fees for the 16 hours of labor the repairs took him. On cross-examination, Hada testified that he determined the labor rate by taking the $65–per–hour labor rate quoted him by Southeast Sand and Gravel and discounting it since he did the repairs himself. At trial, Hada had testified that he used a $20–per–hour rate. As calculated by Hada, the total cost of repairs was $489. Zimmerman asked the district court to deny restitution altogether. The district court found the fuel charge and the labor charge valid, but not the charge for dirt; accordingly, the district court awarded $390 in restitution.
On appeal, Zimmerman argues that the damage he caused to the road was slight and that the restitution amount was too high considering that the road was merely a grassy path; the grass would grow back and any ruts he caused would fill in naturally. He argues that a victim of a property crime is entitled to restitution only up to the amount of loss; he contends that because there was no evidence here regarding the fair market value of the road or the value after the damage occurred, the restitution award was improper.
Zimmerman cites cases in his brief concerning restitution for damage to personal property that has no market value, but the cases cited by Zimmerman are distinguishable from the present facts. This court has previously stated that “the district court's determination of restitution must be based on reliable evidence yielding a ‘defensible restitution figure.’ [Citation omitted.]” State v. Phillips, 45 Kan.App.2d 788, 794, 253 P.3d 372 (2011). Moreover, “[n]o specific formulas have been developed for calculating the value of real property partially damaged by a defendant. [Citations omitted.]” State v. Barton, No. 106,219, 2012 WL 6734509, at *6 (Kan.App.2012) (unpublished opinion). In cases where the partially damaged real property may be repaired, the repair costs may properly guide restitution calculation. See State v. Smardo, No. 101, 194, 2009 WL 2506268, at *3 (Kan.App.2009) (unpublished opinion).
As the State points out in its brief, Hada testified regarding the nature of the damage and the cost of repairing it; Hada also prepared and submitted an estimated cost of repair. This was reliable evidence upon which the district court based its calculation of the restitution award. The district court reduced Hada's repair estimate by the charge for the dirt because Hada had used dirt from the pasture behind his house. Considering our deferential standard of review, it cannot be said that the district court's award was arbitrary, fanciful, or unreasonable; that it was based on an error of law or fact; or that no reasonable person would have awarded $390 in restitution. See Ward, 292 Kan. at 550;Sellers, 292 Kan. at 124. Accordingly, we conclude the district court did not abuse its discretion by ordering Zimmerman to pay $390 in restitution.
Affirmed.