1 NOT DESIGNATED FOR PUBLICATION

No . 124,561

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appell ee ,

v.

K IMBERLY D. G OERTZEN , Appell ant

.

MEMORANDUM OPINION

Appeal from Reno District Court; T RISH R OSE , judge. Opinion filed January 20 , 202 3

. Affirmed.

Ryan J. Eddinger , of Kansas Appellate Defender Office, for appell ant

.

Andrew R. Davidson
, deputy district attorney, Thomas R. Stanton , district attorney, and Derek
Schmidt , attorney general, f o r appell ee

.

B efore I SHERWOOD , P.J., A TCHESON , J., and T IMOTHY G. L AHEY , S.J.

P ER C URIAM : 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 t wo burglaries. S he 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. Se cond, 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.2 F ACTUAL AND P ROCEDURAL B ACKGROUND

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 Joh n 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 riv ets. Goertzen damaged several storag e units, incl uding all three walls of the
unit she rented, and caused damage to the electrical wiring i n the units

.

The State requested restitution of $3,567.95 f or damage caused to Ingalls ' storage units in the burglaries. Neither of the burglary victim s 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 stora ge 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.3 A NALYSIS

Goertzen ' s sole challenge is over the amount of restitution ordered. She first

argue s that the trial court erred by awarding restitution based on the cost of repairs
without first d etermining 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 omi tted.] " State v. Jarmon , 308 Kan. 241, 248, 419 P.3d 591 (2018).

A ppellate courts exercise unlimited review of legal questions involving the interpretation of the underlying statutes. Martin , 308 Kan. at 1350 ; s ee also State v. Holt
, 305 Kan. 839, 842, 390 P.3d 1 (2017) (applying standard to restitutio n 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 b ased on damage or loss caused by the crime. For individuals
convicted of burglary under K.S.A. 2019 Supp. 21

- 5807

— as Goe r tzen was

— restitution

" shall include the cost of repair or replacement of the property that was damaged ." See
K.S.A. 20 21 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 the4

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 damage d 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 repair s 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 p roperty 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 i f 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 le ft it in a
creek. The restitution ordered by the district court was for the original purchase price of
the seve n

- year

- old tractor , plus the cost to repair it. In Casto , o ur court reversed and remanded, holding that the appropriate measure of damag e was the reasonable cost of repair, plus a reasonable amount for the loss of use of the property
, a nd held that the5

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 th is 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 in dividual storage units. T here 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 cost s 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 m easure 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 fig ure, " ' 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 deter mine award that serves goals of6

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 basin g 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. 18 3 , 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) (unpublish ed opinion)
, petition for rev. filed November 7, 2022

.

Affirm ed

.