State v. Futrell

Leben, J.,

concurring in part and dissenting in part: I disagree with one part of the majority opinion, so I write separately to explain that disagreement. To refresh the reader’s memory, Futrell was convicted of residential burglary and is challenging the district court’s restitution order, which required him to pay a total of $7,953.41 based on five losses tire State claimed had been caused *283by his crimes: (1) $303.41 for damage to Platts car; (2) $6,220 for cash stolen from Platts car; (3) $250 for damage to the door of Platts home; (4) $680 for cash stolen from Platts home; and (5) $500 for damage to Futrelfs ex-girlfriends phone. I concur with the majority’s reasoning and decision to reverse the restitution order regarding items (1) and (2) and to affirm the restitution order regarding items (3) and (5). But unlike the majority, I don’t think that the district court had the authority to include item (4)—the cash stolen from Platts home—in the restitution award. On that point, I must dissent.

When the district court places a defendant on probation, the criminal restitution statute authorizes die court to order die defendant to pay restitution “to the aggrieved party for the damage or loss caused by the defendant’s crime.” K.S.A. 2015 Supp. 21-6607(c)(2). The Kansas Supreme Court has said that under this statute, the district court “may only order restitution for damages caused by the crime or crimes for which the defendant was convicted.” (Emphasis added.) State v. Dexter, 276 Kan. 909, 919, 80 P.3d 1125 (2003) (interpreting identical language in an earlier version of this statute). In other words, the statutory phrase “the defendant’s crime” means “the crime or crimes for which the defendant was convicted.” See 276 Kan. at 919. Additionally, the statutory phrase “caused by” means that there must be a nexus between the crime or crimes of conviction and the conduct for which restitution was imposed-—the loss or damage must “be caused by, not merely connected to, the crime of conviction.” 276 Kan. at 918; State v. Hall, 30 Kan. App. 2d 746, 750, 49 P.3d 19 (2002).

Our court’s opinion in State v. Miller, 51 Kan. App. 2d 869, 355 P.3d 716 (2015), followed these rules. There, the defendant was convicted of theft and burglary, and the district court imposed a restitution order of $4,700 for plumbing and electrical repairs to the home where the theft-'-and burglary took place. The plumbing and electrical repairs were needed because some of the home’s copper piping had been stolen out of the walls. But Miller’s theft conviction wasn’t for stealing tire copper piping—it was for stealing a machete and baby powder—so the damage to the walls wasn’t caused by the theft conviction. And the burglary conviction *284simply required the unauthorized entering into or remaining within a dwelling with the intent to commit a theft, not an actual theft, so the theft of the copper piping wasn’t caused by that conviction either. 51 Kan. App. 2d at 873-74. The loss of the copper piping was certainly connected to the burglary, but the burglary didn’t cause it. 51 Kan. App. 2d at 874; see Dexter, 276 Kan. at 918. Thus, following the rule that the district court can only order restitution ■for loss or damage caused by (and not merely connected to) the crime or crimes for which a defendant is actually convicted, our court reversed the restitution order because the defendant hadn’t been convicted for stealing the copper piping. Miller, 51 Kan. App. 2d at 874; see State v. Butts, No. 114,475, 2016 WL 4585604 (Kan. App. 2016) (unpublished opinion) (following Miller and holding that a defendant convicted of theft for stealing a dog couldn’t be required to pay restitution to the dog’s owners for their loss related to the interest and finance charges that had accrued on the contract

In State v. Arnett, No. 112,572, 2015 WL 6835244 (Kan. App. 2015) (unpublished opinion), our court followed the reasoning in Miller. There, the defendant had lent her car to her boyfriend, who used the car to commit several residential burglaries, causing losses of $33,248.83. The defendant was convicted of conspiracy to commit burglary, and the district court imposed a restitution order holding her jointly and severally liable for the entire amount of the loss. The Arnett court reversed the restitution order, noting that the crime of conspiracy doesn’t require actually committing the crime the person conspired to commit and that the defendant hadn’t been convicted of burglary or theft. The court held that while the defendant’s action in lending her car was connected to the losses, the defendant’s actual' crime of conviction—conspiracy—didn’t cause them (tire thefts and burglaries did). 2015 WL 6835244, at *2. This is simply an application of the rule in Miller: there, the burglary conviction didn’t require the completion of a theft, so the burglary conviction didn’t cause the need for repairs to the walls (the uncharged conduct of stealing die copper piping did).

Applying Millers reasoning to this case, Futrells crime of conviction—burglary—was merely connected to and didn’t cause the *285loss of the cash, and the majority acknowledges that if it were to follow Miller, it would reverse tire restitution order for the cash stolen from Pratts home. 53 Kan. App. 2d at 278.

But the majority rejects that result, and in doing so, it effectively expands the meaning of “the defendants crime” beyond the definition provided in Dexter— “the crime or crimes for which the defendant was convicted”-—to include any “criminal actions immediately aligned in time and place” or “the entire criminal episode.” 53 Kan. App. 2d at 280-81. To get to this expanded definition, the majority overlooks Dexters interpretation of the restitution statute and focuses instead on the factual progression of criminal activity, arguing that victims should be compensated for losses caused by the entire criminal episode, regardless of the defendants actual convictions.

The majority concludes that, in this case, stealing the money was an indistinguishable part of the burglary, aligned in time and place, so the district court had the authority to order restitution for the stolen money because the burglary indirectly caused the loss of the money. And it is true that restitution can include indirect losses that were nonetheless caused by a crime. For example, in State v. Hand, 297 Kan. 734, 304 P.3d 1234 (2013), the defendant stole the victim’s television, and when the victim filed a renters’-insurance claim for that loss, the insurance company increased the victims monthly premium. On appeal, the Kansas Supreme Court affirmed the district courts restitution order that included the amount of the insurance-premium increase. But the defendant in Hand was actually convicted for stealing the television (as well as for burglary), so the statutory requirement that the loss be caused by the crime of conviction had been met. 297 Kan. at 739-40. The Hand court held that indirect losses like insurance-premium increases can be included in restitution orders, but this factual question about whether the crime had actually caused the loss in question wouldn’t have come up if the defendant hadn’t been convicted for stealing the television. The majority here essentially ignores the statutory requirement that the district court can only order restitution for losses caused by the crimes for which the defendant is actually convicted and moves straight into the factual question *286of whether the criminal activity caused the loss. This move, while consistent with the broad purpose of restitution to compensate victims of crimes, departs from the plain language of the statute and controlling caselaw that governs what lands of restitution a district court can impose on a defendant being placed on probation. I would follow Miller’s application of K.S.A. 2015 Supp. 21-6607(c) (2) and Dexter and reverse the portion of the restitution order related to the money stolen from Pratts house.