State v. MaloneyState v. Maloney
- Reporters:
- , ,
- Before:
- Malone
Barbara J. Maloney appeals the district court’s restitution order imposed following her felony theft conviction. The district court ordered Maloney to pay $9,395 in restitution for various items of household goods taken by Maloney in the theft. Maloney claims the district court erred in calculating restitution based on the replacement cost of the stolen propеrty rather than its fair market value. We hold that when there is no readily ascertainable fair market value for personal property taken in a theft, the district court may consider оther factors in determining restitution, including the purchase price, condition, age, and replacement cost of the property, as long as the valuation is based on rehable evidence which yields a defensible restitution figure.
On July 1, 2004, Maloney entered an Alford guilty plea to two counts of felony theft. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). One of the counts involved the theft of various items of household goods belonging to Mary Beth Eyen. The household goods had been stored in аn office building while Eyen was preparing to move into a new residence. The district court accepted Maloney s plea and sentenced her to an underlying prison term of 6 months with 12 months’ probation and ordered her to pay restitution.
After the sentencing, a hearing was scheduled to determine the proper amount of the restitution. Prior to commencemеnt of the hearing, Maloney expressed her desire to value the household goods based on information she had gathered on eBay. However, the State objected on the grоund that Maloney’s information was not based on items comparable to the items taken from Eyen. The district court suggested a continuance to allow the parties time to find an indeрendent appraiser, if possible, to value the property. However, Maloney did not desire a continuance, and she agreed to proceed with the hearing. Maloney did not proffer her eBay evidence to the district court.
Eyen was the only witness at the restitution hearing. The State introduced a three-page exhibit, prepared by Eyen, itemizing all the missing hоusehold goods. The exhibit included numerous cookbooks, sweaters, compact discs, and miscellaneous items such as steak knives, cutting boards, casserole pans, cookiе sheets, baby bottles, muffin tins, cake stands, bread loaf pans, assorted plastic mixing bowls, pie pans, a Mr. Coffee iced tea maker, and a football signed by the Denver Broncos team. Eyen placed a value on each item on the exhibit based substantially on replacement cost. She made no claim for a missing photograph album because it only had a sentimental value. Eyen requested $10,095 in total restitution. On cross-examination, Eyen was asked about the age and condition of some of tire missing property. The district court also asked Eyеn questions about some of the specific items of property.
After hearing the evidence, the district court adjusted the price downward for the football signed by the Denver Broncos team, the books, the sweaters, and the compact discs. The district court noted that some of the items could be replaced without having to buy them new. However, the district court adjusted the price upward for some other miscellaneous items. The district court arrived at a total restitution figure of $9,395 and ordered Maloney and her codefendant to pay this аmount. Maloney timely appealed.
As a condition of probation in a criminal case, the district court must order restitution to the aggrieved party for the damage or loss caused by the crime, in a manner and amount determined by the court.
Under Kansas law, an owner of the property may exprеss an opinion as to the value of the stolen item. State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). However, a property crime victim is entitled to restitution only up to the amount of his or her loss. Castro, 22 Kan. App. 2d at 154. Generally, the fair market value оf property at the time of its taking, rather than the replacement cost, is the proper measure of restitution. State v. Rhodes, 31 Kan. App. 2d 1040, Syl. ¶ 2, 77 P.3d 502 (2003).
In Rhodes, the victim produced a list of her missing personal property taken in a residential burglary. The victim’s testimony concerning the value of the property was based on the replacement cost or the original purchase price of the property. The panel in Rhodes determined the district court did not have any basis for determining the fair market value for many of the items taken from the victim and concluded the district court abused its discretion in calculating restitution. 31 Kan. App. 2d at 1042. Maloney’s case is similar to Rhodes. However, in Rhodes no argument was made that the items of personal property taken from the victim had no readily ascertainable fair market value. The State makes this argument in Maloney’s case.
The State cites cases from other jurisdictions in which the victim’s testimony regarding the purchase price or replacement cost of stolen property was used in determining the value for restitution. See Aboyoun v. State, 842 So. 2d 238, 240 (Fla. Dist. App. 2003) (finding the victim’s testimony regarding the purchase price of jewelry and recently purchased shoes and his opinion regarding the value of other items was sufficient to establish their value for restitution purposes); Bakos v. State, 698 So. 2d 943, 944 (Fla. Dist. App. 1997) (finding thе victim’s testimony regarding the purchase price and current value of jewelry was sufficient to sustain the restitution award). In these cases, the court determined the amount of restitution by considering testimony or evidence of the purchase price, the manner in which the item was used, the condition of the item, and depreciation.
Although Kansas has no criminal cases suрporting the State’s argument, authority can be found in civil law. In Kansas Power & Light Co. v. Thatcher, 14 Kan. App. 2d 613, 797 P.2d 162, rev. denied 247 Kan. 704 (1990), the court was attempting to determine the value of a wooden utility pole damaged by the defendant. The court held that whеn measuring damages to personal property where the item has no market value, other relevant factors must be considered such as the cost of repair, the original value, the loss of use, any special value to the owner, the loss of expected profits, and the cost of replacement. Thatcher, 14 Kan. App. 2d 613, Syl. ¶ 3; see also PIK Civ. 3d 171.12 (when the damaged personаl property has no market value, the jury may consider original value, cost of replacement, loss of use, cost of repair, condition, age, obsolescence, and other factors presented in the evidence).
Here, it is apparent that most of the personal property taken from Eyen had no market
We are not departing from the general rule that the proper meаsure of restitution in a theft case is the fair market value of property at the time of its taking, rather than the replacement cost, whenever the fair market value can be аscertained. However, when there is no readily ascertainable fair market value for personal property taken in a theft, 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 evidencе which yields a defensible restitution figure. Under the facts and circumstances of this case, we conclude the district court did not abuse its discretion in determining the amount of restitution owed by Maloney.
Affirmed.