State of Iowa v. Athena Kennedy ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1507
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ATHENA KENNEDY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,
Judge.
A criminal defendant challenges the reasonableness of a restitution order.
AFFIRMED.
Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Michael J. Walton, County Attorney, and Joseph Grubisich, Assistant
County Attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
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TABOR, J.
The district court ordered Athena Kennedy to pay $6465.35 in victim
restitution following her guilty plea and sentencing for burglary in the third
degree. She contends the amount lacks evidentiary support and she should only
be responsible for $2500 in damages resulting from her crime. Because the
restitution figure set by the court had a reasonable basis in the evidence, we
affirm.
The State charged Kennedy with burglary in the third degree, in violation
of Iowa Code section 713.1 and 713.6A(1) (2013), and criminal mischief in the
second degree, in violation of sections 716.1 and 716.4, stemming from a
February 2013 home invasion. Kennedy entered a guilty plea to the burglary
charge and received a suspended five-year sentence.
The district court held a restitution hearing under Iowa Code section
910.31 on September 4, 2013. The State submitted a statement of pecuniary
damages from the victim listing stolen and damaged property in the amount of
$11,479. The State also offered the testimony of the victim, whose duplex was
burglarized, and her sister, who saw the damaged furnishings. In addition, the
State offered a receipt documenting the value of some of the electronics and
furniture items the victim alleged she lost in the crime. Kennedy testified that
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This section reads:
At the time of sentencing or at a later date to be determined by the court, the
court shall set out the amount of restitution . . . and the persons to whom
restitution must be paid. If the full amount of restitution cannot be determined at
the time of sentencing, the court shall issue a temporary order determining a
reasonable amount for restitution identified up to that time.
Iowa Code § 910.33
during the burglary she only broke two televisions, valued at $1500 and $800
respectively, and damaged approximately $200 worth of miscellaneous items.
On September 5, 2013, the court entered an order requiring Kennedy to pay the
burglary victim restitution in the amount of $6465.35. Kennedy now appeals.
We review restitution matters for correction of legal error. State v. Hagen,
840 N.W.2d 140, 144 (Iowa 2013). We would find a restitution order to be
excessive if it did not bear a reasonable relationship to the damage caused by
the offender’s criminal conduct. State v. Bonstetter, 637 N.W.2d 161, 168 (Iowa
2001). Once the State proves the causal connection, Iowa Code section
910.1(3) allows recovery of “all damages” that the State can show by a
preponderance of the evidence. See State v. Wagner, 484 N.W.2d 212, 216
(Iowa Ct. App. 1992).
Kennedy’s appeal rests on the strength of her own testimony. Her only
argument is that the court should have adopted her damage estimates over
those of the victim. The district court expressly rejected Kennedy’s version in the
restitution order, saying it “did not find the testimony of the defendant to be
credible in any respect based on the Court’s observations of the defendant
throughout the hearing and her highly antagonistic and abrasive attitude openly
displayed toward the victim and the witnesses who testified on the victim’s
behalf.” Conversely, the court believed the State’s witnesses. Because our
review is only for correction of errors at law, we will not reweigh the evidence nor
assess witness credibility in the place of the trial judge, who had the chance to
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personally observe the witnesses. See EnviroGas, L.P. v. Cedar Rapids/Linn
Cnty. Solid Waste Agency, 641 N.W.2d 776, 785 (Iowa 2002).
Generally, restitution is determined in the same manner as damages in a
civil case. State v. Watts, 587 N.W.2d 750, 751–52 (Iowa 1998). A fact finder’s
method of calculating damages usually inheres in the award and is not subject to
challenge. Id. at 752. The end amount need only be within the “reasonable
range of the evidence.” Id. (upholding restitution amount so long as it is “neither
speculative nor imaginary”). Here, the district court ordered a specific amount of
restitution—$6465.35—without revealing its method of calculation. But the
award was neither speculative nor uncertain. We can infer the district court
relied on the receipts entered into evidence to reach the amount awarded. See
id. Because the restitution amount determined by the court had a reasonable
basis in the evidence, we will not disturb it.
AFFIRMED.