State v. Bills

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NOT DESIGNATED FOR PUBLICATION

No. 116,431

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

STEVEN R. BILLS,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed September 22,
2017. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: On October 14, 2015, Steven Bills was charged with felony DUI,
felony interference with a law enforcement officer, and driving with a suspended license.
Bills pled guilty to felony driving under the influence (DUI) and felony interference with
a law enforcement officer on March 28, 2015. Pursuant to the plea, the State dismissed
the charge of driving with a suspended license.

In the plea agreement, the State asked for $30,365.15 in restitution. From that
amount, $1,000 was to reimburse the victim for his insurance deductible. The remaining
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amount was to go to the insurance company that paid on the victim's claim for medical
expenses and vehicle expenses. Bills did not agree to pay any amount of restitution in the
plea agreement.

At a hearing on May 11, 2016, Bills stated he would agree to the $1,000 in
restitution, however he contested the remaining amount of restitution sought by the State.
The district court continued sentencing to a later date.

A sentencing hearing was held on June 14, 2016, and the State proffered that Bills
was obligated to pay the entire amount of requested restitution because he crashed into
the victim's vehicle while driving under the influence of alcohol. The victim had
submitted a claim to his insurance company to cover his medical expenses and the
damage to his vehicle. Bills argued against awarding restitution to the insurance company
as it would be more appropriate for the insurance company to seek a civil remedy.

The district court imposed a 15-month prison sentence and a concurrent 12-month
jail sentence. In addition, the court imposed 12 months of postrelease supervision and a
$1,750 fine. Because the parties could not agree on a restitution amount, the court
continued the case for a restitution hearing.

At the restitution hearing on June 23, 2016, the district court imposed the
restitution amount requested by the State—$30,365.15. The court specifically found that
Bills' DUI had caused the car accident, which resulted in the damages requested in the
restitution. The court stated there was a causal connection between the crime of DUI and
the restitution requested.

On appeal, Bills argues the district court ordered restitution for damages that were
not directly caused by his crimes of conviction.

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K.S.A. 2016 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. Thus, restitution
depends upon 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). Restitution
for tangential costs incurred as a result of a crime is not without limitations, but some
tangential expenses can be recovered through restitution. 301 Kan. at 837-39. Restitution
can involve three standards of review. The district court's factual findings of the causal
link between the crime committed and the victim's loss will be affirmed if those findings
are supported by substantial competent evidence. State v. Shank, 304 Kan. 89, 93, 369
P.3d 322 (2016).

The district court's authority to order restitution in a criminal case is established by
K.S.A. 2016 Supp. 21-6604(b)(1), which allows the court to order the defendant to pay
restitution as part of the sentence. K.S.A. 2016 Supp. 21-6607(c)(2) allows the court to
order restitution payments as a condition of probation and provides that restitution may
be ordered "for the damage or loss caused by the defendant's crime." While these two
statutes differ slightly as to what costs may be ordered, they were enacted together and
are closely related and therefore should be construed together. See Neighbor v. Westar
Energy, Inc., 301 Kan. 916, 919, 349 P.3d 469 (2015).

Bills argues State v. Miller, 51 Kan. App. 2d 869, 355 P.3d 716 (2015), indicates
that there is no causal relationship between his crime of conviction and the restitution
ordered by the district court. He states his DUI conviction established that he "(1)
operated, or attempted to operate, a vehicle; (2) while under the influence of alcohol to an
extent that rendered him incapable of safely operating the vehicle." The mere operation
of his vehicle did not cause the damages that resulted from the car accident. Bills argues
that because the elements of his DUI do not require proof of a car accident, the restitution
amount was not causally related to his crime of conviction.

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Before looking at Miller, there are several cases that are helpful regarding how
district courts should award restitution. In State v. Goeller, 276 Kan. 578, 77 P.3d 1272
(2003), overruled on other grounds by State v. Dickey, 301 Kan. 1018, 350 P.3d 1054
(2015), Goeller pled guilty to one count of felony possession of methamphetamine, one
count of felony possession of marijuana, and a no contest plea to one count of
misdemeanor DUI. Goeller fell asleep at the wheel and crossed the center line when he
hit the victim's car. The victim suffered serious injuries. Goeller was ordered to pay the
victim restitution in the amount of $1,000 a month during his 12 months of postrelease
supervision. The victim testified the accident caused him to incur $130,000 in medical
bills and caused him and his wife a wage loss of $8,000. Goeller focused on the phrase
"caused by the defendant's crime" under the statute and argued none of his crimes of
conviction caused the victim's injuries. Instead, he argued the injuries were actually and
proximately caused by his driving left of center and that charge was dismissed.

The Goeller court found that the victim had suffered injuries because of the
collision with Goeller's car and, while Goeller's DUI no contest plea may not have been
an admission that he was driving recklessly at the time of the accident, the evidence
underlying the plea provided circumstantial proof of the causal connection needed to
satisfy the restitution statute. 276 Kan. at 582-83. The blood sample demonstrated the
presence of drugs in Goeller's system. 276 Kan. at 583. Our Supreme Court held that the
district court's factual findings of the causal link between Goeller's unlawful conduct and
the victim's injuries were supported by substantial competent evidence that a reasonable
person might accept as sufficient to support the conclusion. 276 Kan. at 583. Bills
concedes the weight of the Goeller precedent.

In State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014), Hall pled guilty to attempted
rape, attempted second-degree murder, and aiding a felon. At the sentencing hearing, the
district court judge ordered Hall to pay more than $32,000 in restitution, including $469
for relocation expenses the victim of the rape incurred. Hall appealed the order of
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restitution and argued the victim's relocation expenses were not caused by his crime and,
therefore, were improper under K.S.A. 21-4603d(b)(1), now K.S.A. 2016 Supp. 21-
6604(b)(1). The Court of Appeals affirmed the restitution order. 298 Kan. at 979.

On appeal to the Kansas Supreme Court, Hall focused on the "damage or loss
caused by the defendant's crime" language under K.S.A. 21-4603d(b)(1) and asserted that
the relocation costs did not fit within the statute. The court looked at State v. Hand, 297
Kan. 734, 739, 304 P.3d 1234 (2013), which states there is no requirement that the
damage or loss be directly caused by the defendant's crime. Hall, 298 Kan. at 990. In
Hand, the victim's increased insurance premium was a result of the victim having made a
claim with his homeowners' policy because of the defendant's theft of property. There, it
was appropriate to include the amount of the insurance premium increase in the
restitution. 297 Kan. at 740.

In Hall, the district court heard testimony that law enforcement recommended the
victim relocate for her safety and to save her from possible harm, as Hall was a
maintenance worker at her apartment complex, which was where the attack took place.
The Kansas Supreme Court stated the relocation expenses could therefore be regarded as
caused by Hall's crime of attempted rape and there was substantial competent evidence to
support the causation determination. 298 Kan. at 991. The Hall court held that the
restitution award was proper under K.S.A. 21-4603d(b)(1), even if it required a causal
link to the defendant's crime. 291 Kan. at 991.

In Miller, 51 Kan. App. 2d 869, Miller appealed the district courts order that he
pay $4,700 in restitution for plumbing and electrical repairs to the owner of a home
where Miller committed burglary and theft. However, restitution can only be ordered
when the damages or losses are caused by the defendant's crimes of conviction or when a
defendant agrees to the restitution in a plea agreement, neither of which applied to the
plumbing or electrical damage. 51 Kan. App. 3d at 869.
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Miller pled guilty to stealing a machete and baby powder but not plumbing or
electrical items. Because the theft conviction involved only the theft of those items, not
the copper piping or wiring, it could not support the restitution award. Burglary is the
unauthorized entering into or remaining within a dwelling with the intent to commit theft,
not damage to property or theft itself. 51 Kan. App. 3d at 869. To the extent that Miller
may have damaged the property by entering it without authority, restitution may be
awarded for that damage because it would have been caused by the act of burglary. 51
Kan. App. 3d at 873. However, entering and remaining in the dwelling does not by itself
cause the loss of copper piping or wiring. 51 Kan. App. 3d at 873. Therefore, the district
court went beyond its authority in ordering the restitution. 51 Kan. App. 3d at 874.

Here, it is clear the restitution award was supported by substantial competent
evidence. All of the above cited restitution cases require a causal connection between the
crime of conviction and the restitution owed. See Hall, 298 Kan. at 991; Hand, 297 Kan.
at 734-35; Goeller, 276 Kan. at 583; accord State v. Futrell 53 Kan. App. 2d 272, 280,
387 P.3d 176 (2016), petition for rev. filed January 9, 2017. In line with these cases, as
well as the statute, Bills' DUI caused the car accident, which resulted in the damages
requested in the restitution. Had Bills not been driving under the influence, he would not
have hit the victim's vehicle and caused the medical and vehicle expenses.

Affirmed.