State v. Goertzen ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,561
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KIMBERLY D. GOERTZEN,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 20, 2023. Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Andrew R. Davidson, deputy district attorney, Thomas R. Stanton, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ISHERWOOD, P.J., ATCHESON, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: Following an evidentiary hearing, the district court ordered
Kimberly D. Goertzen to pay $3,567.95 in restitution for damages caused in the
commission of two burglaries. She challenges the amount of restitution for two reasons.
First, she contends the State is required to introduce evidence of the market value of the
damaged property before restitution can be ordered. Second, Goertzen claims the
statutory restitution scheme in Kansas violates her right to jury trial. We find no merit in
either contention and affirm the restitution ordered by the district court.
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FACTUAL AND PROCEDURAL BACKGROUND
Goertzen pled no contest to two counts of burglary in violation of K.S.A. 2019
Supp. 21-5807. With a criminal history score B, Goertzen was sentenced to 29 months in
prison. The burglaries were committed by Goertzen and a codefendant at a storage unit
facility owned by John Ingalls. Goertzen rented a storage unit, then used that unit to
access and burglarize other storage units. To access the other storage units, Goertzen
removed portions of the dividing walls, which were made of sheet metal attached to steel
studs with rivets. Goertzen damaged several storage units, including all three walls of the
unit she rented, and caused damage to the electrical wiring in the units.
The State requested restitution of $3,567.95 for damage caused to Ingalls' storage
units in the burglaries. Neither of the burglary victims whose property was taken sought
restitution. Goertzen objected to the restitution amount, so an evidentiary hearing was
scheduled.
At the restitution hearing, Ingalls testified that Goertzen (together with her co-
defendant) damaged 12 or more of the surrounding storage units. Ingalls obtained a repair
estimate in the amount of $3,138.54 from the company that originally built the storage
units. The structural repairs were not complete at the time of the restitution hearing, and
Ingalls noted he had paid approximately $1,000 toward the repairs to date. Ingalls also
testified he paid an electrician $429.41 to repair damage to the electrical service in the
units. Goertzen disputed the State's restitution request, arguing that the electrical repair
bill and amount Goertzen had paid to date might be appropriate, but she contended the
remaining $2,316.46 of the estimate seemed inflated. The trial court imposed all of the
restitution requested, and Goertzen timely appeals.
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ANALYSIS
Goertzen's sole challenge is over the amount of restitution ordered. She first
argues that the trial court erred by awarding restitution based on the cost of repairs
without first determining the fair market value of the storage units before they were
damaged. Appellate courts review the "'amount of restitution and the manner in which it
is made to the aggrieved party'" for abuse of discretion. State v. Martin, 308 Kan. 1343,
1349, 429 P.3d 896 (2018).
"An abuse of discretion occurs when judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
(2) based on an error of law, i.e., the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. [Citation omitted.]" State v. Jarmon, 308 Kan. 241, 248, 419 P.3d 591(2018).
Appellate courts exercise unlimited review of legal questions involving the
interpretation of the underlying statutes. Martin, 308 Kan. at 1350; see also State v. Holt,
305 Kan. 839, 842, 390 P.3d 1 (2017) (applying standard to restitution imposed on
defendant sentenced to a hard 25 sentence).
K.S.A. 2019 Supp. 21-6604(b)(1) requires that any restitution ordered in a
criminal case must be based on damage or loss caused by the crime. For individuals
convicted of burglary under K.S.A. 2019 Supp. 21-5807—as Goertzen was—restitution
"shall include the cost of repair or replacement of the property that was damaged." See
K.S.A. 2021 Supp. 21-6604(b)(1). The statutory use of "shall" requires the district court
here to include the cost of repairing the storage units damaged during the burglary.
Goertzen's brief includes no discussion of this statutory language, although she cites State
v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 (2002), and acknowledges that the
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appropriate amount of restitution is the amount required to "'reimburse[] the victim for
the actual loss suffered.'" Ingall's testimony establishes a factual basis for the cost to
repair the damaged storage units and plainly supports the decision of the district court.
However, Goertzen contends that the district court is required to determine the fair
market value of the damaged property before ordering restitution, and the district court
did not do so. It simply awarded the cost of repairs without requiring any evidence of the
fair market value of the damaged storage units. Goertzen argues that "[w]ithout evidence
of the fair market value, and any deprivation of use of the property at issue, there was no
basis for the district court to determine whether restitution in the amount of $3,567.95
was the amount of loss actually suffered." In support of this contention, Goertzen cites
State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 (1996), and states that if
property is recovered in a damaged condition and can be repaired to its 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 being made. But
when the property cannot be repaired, then 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. "However, in either situation, the
restitution amount should not exceed the reasonable market value . . . immediately
before the damage." See 22 Kan. App. 2d at 154.
The facts in Casto do not involve damages caused during a burglary and are not
similar to the present case. In Casto, the defendant took the victim's tractor and left it in a
creek. The restitution ordered by the district court was for the original purchase price of
the seven-year-old tractor, plus the cost to repair it. In Casto, our court reversed and
remanded, holding that the appropriate measure of damage was the reasonable cost of
repair, plus a reasonable amount for the loss of use of the property, and held that the
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amount of restitution should not exceed the reasonable market value of the property
immediately before the damage. 22 Kan. App. 2d at 154.
We do not disagree with the general rule stated in Castro and emphasized by
Goertzen—restitution should not exceed the reasonable market value of the damaged
property. Goertzen does not explain how this general proposition is transformed into a
requirement that evidence of fair market value is required before restitution can be
awarded. Neither the State nor Goertzen introduced any evidence of fair market value of
the storage unit facility or of the individual storage units. There is no suggestion in the
evidence that the repair estimate testified to by Ingalls exceeded the fair market value of
the damaged property, and Goertzen cites no testimony or other evidence supporting such
conclusion.
As summarized by our Supreme Court in State v. Hall, 297 Kan.709, 713-14, 304
P.3d 677 (2013):
"As we explain in State v. Hand, 297 Kan. 734, 304 P.3d 1234 (2013), the
restitution statute's language does not restrict a sentencing judge to awarding only the fair
market value as restitution in property crime cases. K.S.A. 21-4610(d). Nor does the
statute require the judge to consider the fair market value of the property lost before
considering other factors. K.S.A. 21-4610(d). Restitution can include costs in addition to
and other than fair market value. State v. Allen, 260 Kan. 107, 115-16, 917 P.2d 848(1996). 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. As long as the requisite causal
connection exists, and '"the [district] court's determination of restitution [is] based on
reliable evidence"' that '"yields a defensible restitution figure,"' Hunziker, 274 Kan. at
660 (quoting State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 [1996]), we will
uphold the district judge's discretionary decision. See Dickens v. State, 556 So. 2d 782(Fla. Dist. App.1990) (trial court best able to determine award that serves goals of
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restitution; discretion exists to reject fair market value, pursue any other measure of loss
that compensates victim)."
Though Hall was based on the former restitution statute, K.S.A. 21-4601(d), the
Supreme Court's analysis applies equally to the current restitution statute. Like its
predecessor statute, K.S.A. 2021 Supp. 21-6604(b)(1) does not require the judge to
consider the fair market value of the damaged property before determining restitution.
Ingall's testimony establishing the cost to repair the storage units provides reliable
evidence and yields a defensible restitution figure. We find no error by the district court
in basing the restitution amount on the cost to repair the storage units and uphold its
restitution order.
Does the Kansas restitution scheme violate the right to a jury trial?
Goertzen asserts that Kansas' restitution statutes violate the Sixth Amendment to
the United States Constitution and section 5 of the Kansas Constitution Bill of Rights.
See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000). She argues that the restitution statutes violate her right to have a jury determine
the damages caused by her crime. Goertzen acknowledges that our Supreme Court has
already rejected her argument in State v. Arnett, 314 Kan. 183, Syl. ¶¶ 1-2, 496 P.3d 928(2021), cert. denied 142 S. Ct. 2868 (2022). This court is duty-bound to follow Arnett and
we find no Sixth Amendment violation. See State v. Cazee-Watkins, No. 124,030, 2022
WL 5296034, at *4 (Kan. App. 2022) (unpublished opinion), petition for rev. filed
November 7, 2022.
Affirmed.
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