1

No. 119,895

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

SAMUEL HENRY,

Appellant.

SYLLABUS BY THE COURT

1.

A series of larcenous acts, regardless of the amount and value of the separate 

parcels or articles taken, and regardless of the time occupied in the performance, may and 

will constitute, in contemplation of law, a single larceny, provided the several acts are 

done pursuant to a single impulse and in execution of a general fraudulent scheme.

2.

The single larceny doctrine is a rule of evidence, not a rule of law, which permits 

but does not require the trier of fact to consider a series of larcenies, embezzlements, or 

other thefts to be the result of a single larcenous scheme.

3.

The two key elements of the single larceny doctrine are: (1) Separate acts of theft 

or embezzlement may constitute felony theft if the acts were the result of one larcenous 

impulse or plan and (2) whether the separate acts were the result of one larcenous 

impulse or plan is a question of fact to be determined by the jury.
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4.

The single larceny doctrine is not only limited to instances where multiple 

misdemeanor takings are charged as a single felony but also permits multiple instances of 

felony takings to be charged as a single higher severity level felony.

5.

K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court shall order the 

defendant to pay restitution, which shall include, but not be limited to, damage or loss 

caused by the defendant's crime, unless the court finds compelling circumstances which 

would render a plan of restitution unworkable.

6.

Restitution is the rule and a finding that restitution is unworkable is the exception. 

The defendant bears the burden of coming forward with evidence of compelling 

circumstances that render the restitution plan unworkable.

7.

K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." Courts are to 

evaluate the workability of a restitution plan on a case-by-case basis. Some of the factors 

relevant to the court's inquiry will be the defendant's income, present and future earning 

capacity, living expenses, debts and financial obligations, and dependents. In some 

circumstances, the amount of time it will take a defendant to pay off a restitution order 

will also be relevant, especially if the defendant is subject to probation until the 

restitution is paid in full. In all circumstances, the district court should keep in mind the 

ultimate goals of restitution: compensation to the victim and deterrence and 

rehabilitation of the guilty.
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8.

If a defendant is ordered to pay full or partial restitution, K.S.A. 2019 Supp. 21-

6608(c)(7) specifically allows for probation to be continued indefinitely as long as the

amount of restitution ordered has not been paid.

Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed February 28,

2020. Affirmed.

Meryl Carver-Allmond and Sam Schirer, of Kansas Capital Appellate Defender Office, for 

appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

POWELL, J.: A jury convicted Samuel Henry of one count of felony theft after he 

stole money from QuikTrip deposits on 12 different occasions during his employment as 

an armored truck driver. The district court sentenced Henry to 60 months' probation and 

ordered he pay $78,315 in restitution. On appeal, Henry claims the single larceny 

doctrine, which allows multiple takings to be charged as a single crime when committed 

as part of single criminal impulse or plan, was inapplicable to his case and the State 

erroneously charged him with a single higher severity level theft instead of 12 lower 

severity level thefts. As a result, he argues insufficient evidence supports his conviction 

because each of his individual takings failed to meet the monetary threshold element of 

the felony theft charged, necessitating the reversal of his conviction. Henry also argues 

his restitution is unworkable. For reasons we more fully explain below, we disagree with 

Henry's arguments and find sufficient evidence supports Henry's theft conviction. We 

also hold the district court's restitution order is not unworkable. Thus, we affirm Henry's 

conviction and sentence.
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FACTUAL AND PROCEDURAL BACKGROUND

In May 2016, QuikTrip's corporate office discovered it was missing $78,315. 

Auditing established that this money was missing due to shortages between the currency 

deposited in the safes of various Wichita, Kansas, QuikTrip locations and the currency 

transferred to QuikTrip's corporate bank account. QuikTrip conducted an internal 

investigation and concluded that no QuikTrip employees took the missing money. So,

QuikTrip contacted GardaWorld—the armored truck company contracted to transport 

money from various QuikTrip locations to the bank to be deposited—to file a claim for 

the missing deposit amounts.

GardaWorld's internal investigation revealed that Henry, an armored truck driver 

for the company, was responsible for the missing funds. The investigation exposed 12 

occasions between April 16, 2016, and May 21, 2016, when the money deposited into the 

bank was less than the money placed in the safes at various QuikTrip locations. The 

specific dates and discrepancies are as follows:

Date Amount Missing Store Stolen From

April 16, 2016 $2,182 315

April 20, 2016 $920 396

April 25, 2016 $3,110 396

April 27, 2016 $3,111 368

April 30, 2016 $7,091 349

May 2, 2016 $3,930 396

May 2, 2016 $4,230 315

May 4, 2016 $7,911 396

May 7, 2016 $7,830 349

May 7, 2016 $9,070 343

May 14, 2016 $15,410 349

May 21, 2016 $13,520 349

Total Missing: $78,315
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It was initially unclear how Henry had taken the money because the cash arrived at 

the bank in sealed, tamper-proof QuikTrip deposit bags. However, it was later discovered 

that multiple QuikTrip store managers reported a GardaWorld employee had asked for 

empty deposit bags. The State theorized at trial that Henry initially concealed the thefts 

by opening the tamper-proof bags collected from the QuikTrip location, removed a 

portion of the money from inside the bag, and then transferred the remaining currency

into a new tamper-proof deposit bag. The State conceded it had no direct evidence 

showing Henry was the person who had stolen the money, but it noted that Henry was the 

common denominator in all of QuikTrip's reported shortages.

The State charged Henry with a single count of theft for unlawfully obtaining or 

exerting control over currency with a value of at least $25,000 but less than $100,000, a 

severity level 7 nonperson felony. A jury convicted Henry as charged. The district court 

sentenced Henry to an underlying 12-month prison sentence and placed him on probation 

for 60 months. The district court also ordered that Henry pay $78,315 in restitution.

Henry timely appeals.

ANALYSIS

On appeal, Henry raises two arguments. First, he argues there was insufficient 

evidence to support the monetary value element of his theft conviction. Second, he argues 

the district court imposed an unworkable restitution plan.

I. DOES SUFFICIENT EVIDENCE SUPPORT THE MONETARY VALUE ELEMENT OF 

HENRY'S THEFT CONVICTION?

Henry first argues there was insufficient evidence to support the monetary value 

element of his theft conviction because the thefts occurred on 12 separate occasions and 
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no one theft was more than $25,000. Henry asserts that the single larceny doctrine did not 

permit his multiple felony thefts to be aggregated into a single higher severity level 

felony theft charge. As a result, he asks us to reverse his conviction.

Under the single larceny doctrine,

"[i]f property is stolen by a succession of takings from the same owner and from 

the same place, each taking is a separate crime if it results from a separate impulse or 

intent. If it appears, however, that a single incriminating impulse or intent is involved in 

the successive takings, the takings constitute a single larceny." State v. Grissom, 251 

Kan. 851, Syl. ¶ 9, 840 P.2d 1142 (1992).

The single larceny doctrine is also known as the single impulse theory or single impulse 

rule. See State v. McClanahan, 251 Kan. 533, Syl. ¶ 1, 836 P.2d 1164 (1992) (single 

impulse rule); Grissom, 251 Kan. at 896 (single impulse theory).

The single larceny doctrine was first adopted in Kansas in State v. Hall, 111 Kan. 

458, 207 P. 773 (1922). Hall was convicted of one count of grand larceny based on the 

theft of three items from two separate floors of a department store. In adopting the 

doctrine, the Kansas Supreme Court stated:

"'Where several articles are taken from the same owner at or about the same time 

by the same thief, the better practice, in spite of the fact that there are technically several 

takings, is to regard the takings as a single offense, and to indict and punish but once. 

This is clearly the case when the goods are taken at the same time by one act of taking. 

But it is equally true where the goods, although taken at substantially the same time, are 

taken independently.' (25 Cyc. 66.)" 111 Kan. at 459.

The Hall court held that "[t]he stealing of several articles upon different floors of a 

department store during one visit of the defendant thereto may properly be charged as a 
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single offense in one count of an information." 111 Kan. 458, Syl. ¶ 1. We view the 

single larceny doctrine, conceptually at least, as part of the body of law proscribing 

duplicity and multiplicity in charging documents. See State v. Hood, 297 Kan. 388, 390, 

300 P.3d 1083 (2013) (multiplicity); State v. Waufle, 9 Kan. App. 2d 68, 70, 673 P.2d 

109 (1983) (duplicity).

Henry relies on State v. Ameen, 27 Kan. App. 2d 181, 183, 1 P.3d 330, rev. denied

269 Kan. 934 (2000), for the proposition that the single larceny doctrine cannot be 

applied to a series of felony thefts, thus prohibiting the State from charging him with a 

single higher severity level felony theft instead of a series of lower severity level felony 

thefts. In Ameen, the defendant, as an employee, stole a total of $67,000 from a client 

over the span of a few months by transferring the client's money into Ameen's own 

disguised bank account on four separate occasions. Ameen was charged and convicted of 

four counts of felony theft.

On appeal, Ameen argued the district court erred by not instructing the jury on the 

single larceny doctrine because such an instruction would have allowed the jury to find 

that a continued impulse to steal had created the commission of a single theft rather than 

four distinct thefts. Citing to McClanahan, 251 Kan. 533, and State v. Fox, 242 Kan. 457, 

749 P.2d 16 (1988), and without any detailed analysis, the Ameen panel held that the 

single larceny doctrine did not apply because the doctrine was "limited to cases allowing 

the State to charge a series of misdemeanor thefts as one felony theft where it appears the 

thefts resulted from a single incriminating impulse." 27 Kan. App. 2d at 183. The panel 

also held there was "no real possibility the jury would have returned a verdict other than 

guilty on all four separate counts." 27 Kan. App. 2d at 183. For reasons we will explain, 

we disagree with the Ameen panel's legal conclusion that the single larceny doctrine 

cannot apply in cases involving multiple felonious takings. See State v. Fleming, 308 

Kan. 689, 706, 423 P.3d 506 (2018) (one Court of Appeals panel may disagree with 

another).
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It is true that Hall's progeny has followed a pattern of applying the single larceny 

doctrine when the amounts individually stolen would not amount to a felony charge but, 

in the aggregate, would total above the felony threshold. See, e.g., McClanahan, 251 

Kan. at 534 (defendant charged with single count of felony theft based upon aggregate 

value of items taken); Fox, 242 Kan. at 459-60 (defendant charged with single count of 

felony unemployment fraud instead of multiple misdemeanors); State v. Green, 213 Kan. 

547, 547-48, 516 P.2d 926 (1973) (defendant charged with single count of felony grand 

theft even though two of the three discrete takings were in amounts less than the felony 

limit); State v. Roberts, 210 Kan. 786, 787, 504 P.2d 242 (1972) (defendant charged with 

two counts of grand larceny for theft of two power drills from hardware store and 83 

records from another store, despite each item having value less than felony limit), cert. 

denied 414 U.S. 832 (1973); State v. Gordon, 146 Kan. 41, 49, 68 P.2d 635 (1937) 

(where threshold of $20 required for felony, court clerk properly convicted of single 

count of felony embezzlement for series of takings of less than $20 totaling over $2,200).

However, our Supreme Court in Hall specifically stated that

"'a series of larcenous acts, regardless of the amount and value of the separate parcels or 

articles taken, and regardless of the time occupied in the performance, may and will 

constitute, in contemplation of law, a single larceny, provided the several acts are done 

pursuant to a single impulse and in execution of a general fraudulent scheme.' (West v. 

Commonwealth, 125 Va. 747, 754.)" 111 Kan. at 459.

In Fox—one of the cases cited by the panel in Ameen—the district court dismissed 

the felony unemployment fraud counts against two defendants on the grounds that the 

complaints were defective and each defendant should have been charged with multiple 

misdemeanor counts rather than a single felony count. The State appealed the dismissals. 

The Supreme Court determined the trial court had erred in applying the single larceny 

doctrine as a matter of law and reversed, holding "the question of whether there was a 

single larcenous impulse is a question of fact to be determined by the jury." Fox, 242 
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Kan. at 465. The Fox court emphasized: "'The single larceny doctrine is a rule of 

evidence, not a rule of law, which permits but does not require the trier of fact to consider 

a series of larcenies, embezzlements, or other thefts to be the result of a single larcenous 

scheme.'" 242 Kan. at 462 (quoting Green, 213 Kan. at 549); see McClanahan, 251 Kan. 

at 535 ("single larceny doctrine is a rule of evidence"); Roberts, 210 Kan. at 791 (same). 

"'Each case must be determined upon its own special facts and circumstances.'" Hall, 111 

Kan. at 459.

If the evidence supports it, our Supreme Court has instructed: 

"The proper way to charge a defendant under these circumstances is to have an 

information containing several counts. One count should charge a felony under the single 

larceny doctrine, and there should be alternative misdemeanor counts for each payment 

received in the event the jury rejects the single larceny theory." Fox, 242 Kan. at 465.

The two key elements of the single larceny doctrine are:

"(1) Separate acts of theft or embezzlement may constitute felony theft if the acts 

were the result of one larcenous impulse or plan.

"(2) Whether or not the separate acts were the result of one larcenous impulse or 

plan is a question of fact to be determined by the jury." 242 Kan. at 462-63.

See McClanahan, 251 Kan. 533, Syl. ¶ 2. In other words, a jury's determination of 

whether "there are separate offenses or only a single offense should be based on whether 

the evidence discloses one general intent to steal or distinct and separate intents." State v. 

Stoops, 4 Kan. App. 2d 130, 139, 603 P.2d 221 (1979); see also Waufle, 9 Kan. App. 2d 

at 71 (single impulse rule applicable to criminal damage to property where defendant 

participated in series of destructive acts committed pursuant to single impulse). "[A] 

defendant could be convicted of separate thefts only if the evidence showed the offenses 
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to be separate and distinct and not committed pursuant to one intention, one impulse, or 

one plan." Stoops, 4 Kan. App. 2d at 139.

Our Supreme Court's analysis in Roberts bolsters our conclusion that the single 

larceny doctrine may be invoked whenever the facts warrant it. There, the defendant and 

another were accused of stealing two drills from a hardware store and 83 records from a 

department store. The State charged the defendant with two counts of grand larceny. The 

defendant argued he was entitled to an instruction for petty larceny for each taking given 

the value of each item allegedly taken. The Supreme Court agreed, holding that because 

the evidence could have supported a finding that his takings were not the result of a 

single continuing criminal impulse or intent, an instruction for petty larceny should have 

been given. A new trial was ordered. 210 Kan. at 792.

Henry was charged and convicted of severity level 7 nonperson felony theft 

contrary to K.S.A. 2016 Supp. 21-5801(a)(1), (b)(2), which proscribes theft of at least 

$25,000 but less than $100,000. The aggregate amount of Henry's alleged thefts totaled 

$78,315. If Henry had been charged with theft for each discrete taking, the severity level 

of each theft, save one, could have been properly charged as a severity level 9 nonperson 

felony theft proscribing thefts of at least $1,500 but less than $25,000 contrary to K.S.A. 

2016 Supp. 21-5801(a)(1), (b)(3). One alleged theft, in the amount of $920, could have 

been charged as a class A nonperson misdemeanor contrary to K.S.A. 2016 Supp. 21-

5801(a)(1), (b)(4).

Given the evidence, it seems clear to us that Henry should have been charged in 

the alternative with a lower severity level theft for each separate taking. At the very least, 

the jury should have been instructed on the elements of the single higher level theft 

offense charged by the State, which it was, and then, in the alternative, the jury should 

have been instructed on the single larceny doctrine and the elements of each lesser theft 

for each taking separately. It was not so instructed.
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But there is a problem. At no time before the district court did Henry object to the 

charging document, nor did he ask for a jury instruction concerning the single larceny 

doctrine and the alternative lower severity level thefts. Henry also fails to make these 

arguments before us. Thus, we must conclude that Henry has waived or abandoned any 

claims of error concerning the charging document and the jury instructions. See State v. 

Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not adequately briefed deemed 

waived or abandoned); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (issues not 

raised before district court cannot be raised on appeal). Accordingly, we are only left with 

Henry's sufficiency of the evidence argument.

"'When sufficiency of the evidence is challenged in a criminal case, the standard 

of review is whether, after reviewing all the evidence in a light most favorable to the 

prosecution, the appellate court is convinced a rational factfinder could have found the 

defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, 

resolve evidentiary conflicts, or make witness credibility determinations.' [Citation 

omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

As we have outlined, the key factual determination is whether Henry's takings 

together constituted a single incriminating impulse thus supporting the State's single 

charge of severity level 7 theft as opposed to separate severity level 9 thefts and one 

misdemeanor theft. Although each taking occurred at different times over the course of 

several weeks and from separate QuikTrip stores, all the property stolen was taken from 

the same entity and certainly appeared to be part of the same scheme: opening each bag, 

removing money, and then returning a portion of the money in a new, resealed bag. 

Henry does not challenge the individual amount of each taking, nor does he challenge the 

aggregate amount of all the takings. When viewing the evidence in the light most 

favorable to the State, we conclude the jury could have determined that Henry's acts arose 

out of a single incriminating impulse or plan. Sufficient evidence supports Henry's

conviction of severity level 7 nonperson felony theft contrary to K.S.A. 2016 Supp. 21-

5801(a)(1), (b)(2).
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II. DID THE DISTRICT COURT IMPOSE AN UNWORKABLE RESTITUTION PLAN?

Second, Henry argues that the district court imposed an unworkable restitution 

plan. Specifically, he argues that the restitution plan imposed was unworkable because it 

would take 43 1/2 years to complete.

We review a challenge to the workability of a restitution plan for an abuse of 

discretion. State v. Holt, 305 Kan. 839, 842, 390 P.3d 1 (2017). "Judicial discretion is 

abused if no reasonable person would agree with the decision or if the decision is based 

on an error of law or fact. To the extent this question requires interpretation of the 

restitution statute, our review is de novo." State v. Meeks, 307 Kan. 813, 816, 415 P.3d 

400 (2018).

K.S.A. 2019 Supp. 21-6604(b)(1) provides that the district court "shall order the 

defendant to pay restitution, which shall include, but not be limited to, damage or loss 

caused by the defendant's crime, unless the court finds compelling circumstances that

would render a plan of restitution unworkable." Under K.S.A. 2019 Supp. 21-6604(b)(1), 

"restitution is the rule and a finding that restitution is unworkable is the exception." State 

v. Alcala, 301 Kan. 832, 840, 348 P.3d 570 (2015). Henry bears the burden of coming 

forward "with evidence of 'compelling circumstances' that render the restitution plan 

unworkable." 301 Kan. at 840.

K.S.A. 2019 Supp. 21-6604(b)(1) does not define "unworkable." The Kansas 

Supreme Court has held that courts are to evaluate the workability of a restitution plan 

case-by-case. Meeks, 307 Kan. at 819-20. The Kansas Supreme Court has explained that

"a defendant who argues that restitution is unworkable must come forward with evidence 

of his or her inability to pay. District courts should use this flexible guideline to evaluate 

each defendant's unique circumstances before deciding whether the defendant has shown 
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a plan would be unworkable. Some of the factors relevant to the court's inquiry will be 

the defendant's income, present and future earning capacity, living expenses, debts and 

financial obligations, and dependents. In some circumstances, the amount of time it will 

take a defendant to pay off a restitution order will also be relevant, especially if the 

defendant is subject to probation until the restitution is paid in full. In all circumstances, 

the district court should keep in mind the ultimate goals of restitution: compensation to 

the victim and deterrence and rehabilitation of the guilty. [Citations omitted.]" 307 Kan. 

at 820.

Of significance is the fact that the restitution statute specifically allows for 

probation to be continued indefinitely so a defendant may satisfy unpaid restitution: "If 

the defendant is ordered to pay full or partial restitution, the period may be continued as 

long as the amount of restitution ordered has not been paid." K.S.A. 2019 Supp. 21-

6608(c)(7); see State v. Herron, 50 Kan. App. 2d 1058, 1067, 335 P.3d 1211 (2014) 

(Powell, J., concurring and dissenting) ("[O]ur legislature has specifically allowed for 

probation to be continued indefinitely so a defendant may satisfy unpaid restitution."), 

rev. denied 301 Kan. 1049 (2015).

Before sentencing, the State filed a motion seeking a restitution order for

$78,315—the amount of cash Henry stole. The State also requested that the district court 

impose a 60-month term of probation and minimum monthly payments of $300 toward 

the requested order of restitution. Henry filed a written response to the motion in which 

he argued that such a plan would be unworkable because he would be unable to pay the 

requested monthly amount.

At sentencing, Henry testified that he paid monthly expenses of $1,551, which 

included $525 in rent, a $247 car payment, $200 for car insurance, $160 in utilities, $189 

in child support, $80 for home insurance, and $150 for groceries. He informed the district 

court that he could not find employment since being fired from GardaWorld. He also 

testified that his fiancée made roughly $247 a week.
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On cross-examination, Henry admitted that the car payment in question was for 

his fiancée's car, his name was not on the car insurance, and he did not personally make 

payments on the vehicle. This reduced his monthly expenses by $447. He also 

acknowledged that he had previously indicated total monthly expenses of $780 on his 

financial affidavit filed at the beginning of the case. Henry further admitted that his 

fiancée was paying the bills he testified to on direct examination, though he stated he 

would contribute if he were employed. Henry testified that he did not have any 

disabilities or health issues that would prevent him from working.

The State reiterated its request that the district court order Henry to pay at least 

$300 a month toward restitution. Henry's counsel argued that such a plan would be 

unworkable, as it would account for only $18,000 in restitution paid over a 60-month 

term of probation. The district court noted that probation could be extended beyond five 

years to allow Henry to pay restitution in full but stated that, in almost all similar cases, at 

the end of the probation term the district court would terminate probation and turn the 

matter over to collections if a defendant was making reasonable efforts to pay restitution. 

The district court asked what the defense would consider to be a reasonable plan, and 

Henry's counsel replied that a $50 monthly payment would be workable.

After hearing Henry's testimony and counsels' arguments, the district court ordered 

Henry to pay $78,315 in restitution in minimum monthly payments of $150. The district 

court gave Henry's probation supervisor the discretion to adjust the monthly payment 

depending on Henry's employment status. The district court emphasized that Henry was 

young, physically capable of working, appeared to have a good mind and can be creative, 

and that hopefully he would use that in a positive approach. The district court also 

expressed confidence that Henry's employment opportunities would likely improve over 

the course of his probationary period. Finally, in considering Henry's ability to pay, the 

district court noted that, at least at some point, Henry had $78,315 in cash—the money 

stolen from the QuikTrip deposits.
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Henry does not challenge the workability of the monthly amount the district court 

ordered he pay—$150. In fact, he explicitly admits such an amount is workable. Rather, 

he argues the restitution plan is unworkable because it will take him 43 1/2 years to pay 

back the total amount he stole. He argues that a multidecade term of probation is, in 

essence, per se unreasonable.

In support of his argument, Henry relies on Herron, 50 Kan. App. 2d 1058, where 

the divided panel overruled the district court's order of restitution of $6,864.10, finding it 

unworkable. Herron made $680 a month; after her expenses, she had only $32 a week for 

"soap, medicine, and socks." 50 Kan. App. 2d at 1060. The majority held that "no 

reasonable person would agree that requiring Herron to pay either $6,864.10 in 18 

months or $10 a month for the next 57 years is workable. The district court erred here by 

adopting only a total restitution amount while providing no plan—workable or 

otherwise—for paying for it." 50 Kan. App. 2d at 1065-66.

In Meeks, 307 Kan. at 817-19, the Supreme Court reviewed a series of Court of 

Appeals cases that addressed the workability of restitution plans and stated:

"With these holdings, the Court of Appeals has defined an 'unworkable'

restitution plan as one that is imposed when the defendant would not have the ability to 

pay towards restitution after covering basic necessities, when over half of the defendant's 

income would go to restitution and leave little for covering those necessities, or when the 

defendant would not pay back the restitution in a 'reasonable time frame.'" 307 Kan. at 

819.

The Supreme Court cautioned against the "rigid definition of 'unworkable' that may be 

taking shape as a result of the numerous" decisions from this court. 307 Kan. at 819. In 

fact, the Supreme Court followed a similar line of thinking as the dissent of Herron, 

elaborating that K.S.A. 2017 Supp. 21-6604 does not define "unworkable" and that such 

an omission signifies the "legislature did not intend a rigid or unyielding definition." 307 
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Kan. at 819; see Herron, 50 Kan. App. 2d at 1066-68 (Powell, J., concurring and 

dissenting). The Supreme Court elaborated:

"Had the legislature envisioned a scenario in which courts only waived restitution when it 

would demand more than a certain percentage of a defendant's income or time out of a 

defendant's life, it could have written that into the statute. Because it did not, we must be 

confident that our decisions do not force such a result." (Emphasis added.) Meeks, 307 

Kan. at 819-20.

Rather than looking to other cases, we will look to the precise facts at hand, as the 

Supreme Court indicated in Meeks. See 307 Kan. at 819-20 (evaluate restitution on caseby-case basis). Henry's argument that he will likely remain on probation is inconsistent 

with the district court's comments at sentencing. The district judge stated that his general 

practice was to terminate probation and turn the matter over to collections if a defendant 

had made reasonable progress toward the restitution payments during the probationary 

period. While that judge has since retired, Henry still has no support for his assertion that 

the restitution plan will likely create a multidecade term of probation. There is no way to 

know if Henry will be on probation for 43+ years because Henry's 60 months of 

probation have not yet concluded. At the end of his ordered term of probation, the district 

court may, in fact, turn the matter over to collections or it may extend probation to ensure 

Henry's payment of restitution. Importantly, should the district court elect to extend 

Henry's probation, such an action is explicitly permitted by K.S.A. 2019 Supp. 21-

6608(c)(7). Moreover, the district court imposed a large amount of restitution because 

Henry stole a large amount of money. Logically, large restitution orders will take a longer 

time to repay. Given Henry's agreement that the monthly payment is reasonable and the 

Legislature's explicit allowance that a term of probation may be extended indefinitely to 

secure the payment of restitution, the district court imposed a workable restitution plan.

Affirmed.