In re E.S. ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,486
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of E.S.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed August 21, 2020.
Vacated and remanded with directions.
Jordan E. Kieffer, of Dugan & Giroux Law, Inc., of Wichita, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., MALONE, J., and WALKER, S.J.
PER CURIAM: E.S. appeals his sentence following his adjudication as a juvenile
offender for acts that if committed by an adult would constitute one count of burglary.
E.S. claims the district court erred in ordering him to pay $5,000 in restitution despite
insufficient evidence to support that order. We agree with E.S.'s claim, so we vacate the
restitution order and remand to the district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Just before noon on August 20, 2018, Khanh Nguyen reported to police that a
vacant house she owned had been vandalized. The door lock and a window were broken,
as was some drywall and trim inside the house. After identifying the damage to the
police, Nguyen closed the door of the house, which she was unable to lock, and left.
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At about 4 p.m., Nguyen returned to the house. She saw people inside and when
she yelled "'Police'" or "'It's the police,'" people ran out of the house. Nguyen followed
the people for 20 to 30 minutes and then returned to the house and called the police.
Wichita police officer Jonathan Gould responded and walked through the house with
Nguyen while she pointed out damage that had occurred after the earlier police report.
According to Gould, they "had a hard time communicating through some of it, but [he
thought he] got some of the broader details of the new damage." Nguyen said that more
drywall and trim had been damaged, the bathroom door was broken, and a closet door
was damaged. Also, the air conditioning unit, furnace, and water heater were missing.
On October 26, 2018, the State charged E.S. in juvenile court with one count of
burglary and one count of criminal damage to property stemming from the second
incident at Nguyen's house. E.S. later pled no contest to one count of burglary in
exchange for dismissal of the other charge. The district court adjudicated him a juvenile
offender and found him guilty of acts that if committed by an adult would constitute one
count of burglary. Under the plea agreement, the State was "requesting restitution in the
amount of $8,342.10, which Respondent will be contesting at the time of sentencing."
The district court held a sentencing and restitution hearing on June 25, 2019, at
which Nguyen and Gould testified. After hearing the testimony and argument of counsel,
the district court ordered E.S. to participate in 12 months of intensive supervision
probation and pay $5,000 in restitution. The restitution award was equal to the amount of
Nguyen's insurance deductible on the house. E.S. timely appealed his sentence.
ANALYSIS
E.S. claims the district court erred by ordering him to pay $5,000 in restitution.
First, he argues that the evidence at the restitution hearing was unclear, unreliable, and
insufficient to determine what, if any, damage his offense caused. Second, he argues that
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even if the evidence was reliable, the district court erred by awarding restitution in the
amount of Nguyen's insurance deductible rather than calculating the fair market value of
the missing water heater, air conditioner, and furnace. E.S. asks this court to vacate the
restitution order or, in the alternative, to remand for a new evidentiary hearing and a
determination of the proper amount of restitution.
The State concedes that the evidence presented at the restitution hearing was
unclear and it notes that the transcript of the restitution hearing further compounds the
problem since much of Nguyen's testimony is represented as "indiscernible." The State
argues that the district court did not err in ordering restitution, but the State agrees that
we should vacate the restitution order and remand to the district court for further
proceedings to determine the appropriate amount of restitution.
Neither the Kansas Supreme Court nor the Kansas Legislature has explicitly
defined the standard of review for a restitution order in juvenile offender proceedings
under the Revised Kansas Juvenile Justice Code. See In re E.S., No. 107,264, 2013 WL
2321158, at *6 (Kan. App. 2013) (unpublished opinion). Historically, however, we have
used the standard of review applicable to restitution orders entered in adult criminal
proceedings. See 2013 WL 2321158, at *6. As relevant here, we review the amount of
restitution for abuse of discretion. State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014).
K.S.A. 2019 Supp. 38-2361(a)(7) and (d)(1) allow a court to order a juvenile
offender "to make reparation or restitution to the aggrieved party for the damage or loss
caused by the juvenile offender's offense" absent compelling circumstances that make it
unworkable. K.S.A. 2019 Supp. 38-2361(d)(2) provides that "restitution may include, but
shall not be limited to, the amount of damage or loss caused by the juvenile's offense."
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In Kansas, an order for restitution in a criminal case depends on the establishment
of a causal link between the defendant's crime and the victim's damages. State v. Alcala,
301 Kan. 832, 837, 348 P.3d 570 (2015). But our Supreme Court has determined that the
requirement of a causal connection may be satisfied if the loss was either directly or
indirectly caused by the crime. See Hall, 298 Kan. at 990. A "'court's determination of
restitution must be based on reliable evidence which yields a defensible restitution
figure.'" State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002). Finally, a defendant
may be ordered to pay restitution when he or she has agreed to do so as part of a plea
agreement, even if the crime of conviction is not causally related to the damage or loss.
See State v. Dexter, 276 Kan. 909, 919, 80 P.3d 1125 (2003).
Our Supreme Court recently addressed the issue of what constitutes sufficient
causation to support a claim for restitution in State v. Arnett, 307 Kan. 648, 413 P.3d 787
(2018). In that case, the court held:
"To establish that one thing proximately caused another, a party must prove two
elements: cause-in-fact and legal causation. Generally, causation-in-fact requires proof
that it is more likely than not that, but for the defendant's conduct, the result would not
have occurred. Legal cause limits the defendant's liability even when his or her conduct
was the cause-in-fact of a result by requiring that the defendant is only liable when it was
foreseeable that the defendant's conduct might have created a risk of the harm and the
result of that conduct and any contributing causes were foreseeable." Arnett, 307 Kan.
648, Syl. ¶ 5.
The State briefly argues that E.S. may not challenge the district court's decision to
order restitution because in the plea agreement he agreed to pay restitution. The written
plea agreement stated that in exchange for E.S.'s no-contest plea, the "State will request
restitution in the amount of $8,342.10, [and] Respondent will be contesting that amount."
This language does not explicitly state that E.S. agreed to pay restitution; rather, it
acknowledges that restitution is disputed. See State v. Huff, 50 Kan. App. 2d 1094, 1098,
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336 P.3d 897 (2014) (holding that language in a plea agreement that defendant would
"pay restitution in an amount to be determined at a later hearing" did not bar a later
challenge to a restitution order). At the restitution hearing, E.S. argued that the district
court should decline to order restitution at all, and the State did not object to the argument
as barred by the plea agreement. For these reasons, we find that the State's argument that
E.S. may not challenge the restitution order unpersuasive.
Turning to whether the district court abused its discretion in setting the amount of
restitution at $5,000, we agree with the parties that the transcript of the restitution hearing
leaves us unable to conduct a meaningful review. In the 24 pages reflecting Nguyen's
testimony, the word "indiscernible" appears 31 times. Often, the indiscernible nature of
her testimony completely obscures its meaning. For example, when the State asked,
"[H]ow much the insurance [company] said that the damage to the house was," the
transcript reflects that Nguyen replied, "He said here is the 15,000 for [indiscernible]."
Along with the obvious communication difficulties, Nguyen's testimony at the
restitution hearing was confusing as to whether she was referring to property damage
alleged to have occurred during the first burglary on August 20, 2018, or the second
burglary, which involved E.S. Moreover, it was unclear whether the damage figures
Nguyen expressed were for the replacement cost of items or the fair market value of the
loss. Finally, the district court's decision to award $5,000 in restitution because that
amount represented Nguyen's insurance deductible was arbitrary and unsupported by the
totality of the evidence presented at the hearing.
As stated above, a district court's restitution order "'must be based on reliable
evidence which yields a defensible restitution figure.'" Hunziker, 274 Kan. at 660. Under
the circumstances here, we agree with the parties that the record does not include reliable
evidence that supports the amount of restitution the district court awarded. We believe the
proper remedy is to vacate the restitution order and remand for the district court to hold a
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new evidentiary hearing to determine the proper amount of restitution. See State v. Kraft,
No. 117,658, 2018 WL 1884045, at *7 (Kan. App. 2018) (unpublished opinion) (vacating
restitution order and remanding for a new hearing because "we do not believe that we can
properly assess whether the district court's restitution order should be upheld based on the
record before us"). Thus, we vacate the district court's restitution order and remand for
further proceedings to determine the proper amount of restitution.
Vacated and remanded for further proceedings.
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