RENDERED: MARCH 23, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0207-DG

2021-SC-0572-DG

COMMONWEALTH OF KENTUCKY APPELLANT/CROSS-APPELLEE

ON REVIEW FROM COURT OF APPEALS

V. NO. 2020-CA-0515

JEFFERSON CIRCUIT COURT NO. 19-CR-000882-2

ANDREW MCMICHAEL APPELLEE/CROSS-APPELLANT

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING 

On October 22, 2019, Andrew McMichael (McMichael) pled guilty to theft 

by unlawful taking over $500, but less than $10,000. This charge stemmed 

from McMichael and a co-defendant removing several pieces of stainless-steel 

siding from an old, kitchen-less diner and selling them for $155.81, which they 

split between themselves. As part of his plea agreement, McMichael agreed to 

pay restitution to the diner’s owner, Mosely Putney (Putney). Because 

McMichael and the Commonwealth could not agree to a restitution sum, the 

trial court held a combined sentencing and restitution hearing on March 9, 

2020.

During the restitution hearing, Putney was the Commonwealth’s sole 

witness. Putney testified that he purchased the diner in early 1990s for 

“around $25,000.” The diner is a 1950s Mountain View modular diner with 
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stainless steel siding that was custom formed onto it when the diner was 

assembled. Although the diner lacked a kitchen, Putney testified that he 

originally intended to renovate the diner and make it a restaurant. However, 

those intentions were never brought to fruition, and the diner has sat on an 

outdoor storage lot exposed to the elements for the last fifteen years and is in a 

significant state of disrepair. Putney testified that, prior to the theft, he 

believed he could have sold the diner for $30,000 - $60,000. He provided no 

documentation to support this estimate and testified that he never had a buyer 

for that amount. 

Putney testified that, although much of the siding was later recovered, it 

was bent during the theft in such a way that it cannot be re-attached to the 

diner. Putney therefore had a sheet metal and roofing contracting company 

provide estimates to replace the siding. The first estimate the company 

provided was the cost to replace only the siding that was removed by 

McMichael and his co-defendant. The company estimated this would cost a 

total of $62,493. The second estimate was the cost to replace both the stolen 

siding and the original siding so that all of the siding would “match.” This 

estimate was $221,800. 

On cross-examination, defense counsel pointed out that the criminal 

complaint in this case stated, “value of diner $3,000,” and that this amount 

was the basis for the underlying charge. Putney denied telling the police that 

the diner was worth $3,000, and instead claimed that he told the police that 

amount because he believed that was the value of the stolen siding. 
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Nevertheless, he acknowledged that he “threw out a number” because he did 

not know the actual scrap value of the siding. He provided no documentation 

or any other evidentiary support to prove the diner’s value prior to the siding 

being removed or its value after the siding was removed. 

McMichael requested that restitution be set at either $155.81, the 

amount for which he sold the siding, or the $3,000 amount set forth in the 

criminal complaint. He further contended that the diner was not worth what 

Putney claimed as, even before the siding was removed, its current state would 

require significant repair both inside and out to bring it back to a useable 

condition. The Commonwealth disagreed, arguing that Putney was competent 

to testify and that his testimony was supported by the estimates provided by 

the contracting company. The Commonwealth requested that restitution be set 

at $62,493, the amount required to replace the stolen siding. The trial court 

agreed with the Commonwealth and ordered McMichael to pay $62,493 in 

restitution jointly and severally with his co-defendant. McMichael appealed the 

restitution ruling to the Court of Appeals. 

The Court of Appeals reversed, holding that there was insufficient 

evidence to support the restitution amount.1 In so ruling, the unanimous

Court of Appeals panel provided much needed guidance on how trial courts

may reliably determine restitution in cases in which restitution is warranted

1 McMichael v. Commonwealth, No. 2020-CA-0515-MR, 2021 WL 1045482 (Ky. 

App. Mar. 19, 2021).
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due to damage to the victim’s property.

2 Neither the Commonwealth nor 

McMichael challenge the framework established by the Court of Appeals, and

we therefore need not discuss it at length. Suffice it to say, the Court of 

Appeals held that 

pre- and post-incident values must be established and their 

difference serve as a cap on recovery. Here, little or no effort was 

made to establish pre- or post-theft values of the diner or its 

siding, much less calculate their difference to serve as a cap on 

restitution. We believe these values must be determined, and the 

cap applied, to set restitution which comports with its intent in

order to obtain substantial justice.

Yet another consideration the trial court must apply when 

calculating restitution is the value of the recovered siding. 

Although Putney testified the siding was “worthless,” presumably 

when it came to re-attaching it for use on the diner's exterior, it 

undoubtedly had some value, even if only as scrap metal. 

McMichael is entitled to an offset against his restitution by the 

value of the recovered siding. . . . Consequently, the value of the 

returned siding must be established and deducted from the 

amount of otherwise allowable restitution.3

As noted, neither of the parties challenge this framework. Rather, the 

sole argument raised by the Commonwealth is that “the Court of Appeals 

ignored controlling precedent when it determined a property owner’s testimony, 

by itself, was insufficient to establish a restitution award.” The full language 

from the Court of Appeals’ opinion to which the Commonwealth refers states as 

follows:

2 Kentucky Revised Statute (KRS) 532.350(1)(a) (“‘Restitution’ means any form 

of compensation paid by a convicted person to a victim for counseling, medical 

expenses, lost wages due to injury, or property damage and other expenses suffered by 

a victim because of a criminal act[.]”) (emphasis added).

3 McMichael, 2021 WL 1045482, at *8.
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Kentucky courts have addressed the establishment of value of 

stolen property in the context of determining the proper crime 

charged. In Allen v. Commonwealth, 148 Ky. 327, 146 S.W. 762 

(1912), the Court observed:

In cases like this, where the degree of the offense 

depends upon the value of the property, it often 

happens that the witnesses will differ as to its value; 

and, when there is a difference of opinion as to this 

matter, it is for the jury to form their own conclusion 

from the evidence as to the value of the property 

stolen. Evidence of the cost price of an article is not 

conclusive as to its value; nor, indeed, is evidence as to 

its selling price. The test by which the degree of guilt 

of the accused is to be determined is the value of the 

article at the time it was stolen, and this value is to be 

arrived at by the jury from a consideration of all the 

facts and circumstances shown in the evidence. Where 

the article stolen is in general use, and has what might 

be called a standard market value, of course the best 

evidence of the value of such an article is the price at 

which it sells in the open market. But where the 

article does not appear to have a standard value in the 

open market, or its standard value is not shown, the 

evidence of its value must be arrived at from facts and 

circumstances testified to by witnesses who qualify 

themselves to speak as to its value.

Id. at 762-63 (emphasis added). Here, the question of the stainless 

steel's value is not needed to determine the degree of the offense, 

as that had already been agreed upon; rather, the determination of 

its value goes to the issue of restitution. Since the stainless steel 

at issue herein does not appear to have a standard value in the 

open market, and its standard value was not shown, the evidence 

of its value must be determined from facts and circumstances 

testified to by a witness who qualifies himself to speak to its value. 

The sole witness for the Commonwealth was the diner's owner, 

Putney; no evidence of his qualifications to testify as to the diner's 

worth, beyond merely being its owner, was presented.

As previously noted, in [Fields v. Commonwealth, 123 S.W.3d 914 

(Ky. App. 2003)], we held that “[t]he due-process clauses of the 

federal constitution require that sentences not be imposed on the 

basis of material misinformation, and that facts relied on by the 
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sentencing court have some minimal indicium of reliability beyond 

mere allegation.” Fields, 123 S.W.3d at 917 (emphasis added) 

(internal quotation marks and footnotes omitted). Following Fields, 

in [Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010)], our 

Supreme Court further held that “the record must establish a 

factual predicate for the restitution order.” Wiley, 348 S.W.3d at 

575.

“In the ordinary case, the proper yardstick is the market value of 

the property at the time and place of the larceny; the original cost 

of the property or any special value to the owner personally is not 

considered.” 3 CHARLES E. TORCIA, GRADES OF LARCENY—

DETERMINATION OF VALUE, WHARTON'S CRIMINAL LAW § 345 

(15th ed. 2020) (footnotes omitted). Herein, Putney offered nothing 

more than his mere opinion of the worth of both the metal and the 

diner. There was no evidence of the current value of the diner or of 

the stainless steel at the time it was taken. This is simply 

insufficiently detailed or reliable to establish a fair restitution 

computation; due process requires more.4

The Commonwealth interprets the foregoing to hold that an owner of 

damaged property “must provide heightened qualifications—seemingly 

requiring specific qualifications beyond being an owner with experience and 

knowledge of the property—and that personal knowledge is no longer sufficient 

to establish value.” In turn, the Commonwealth argues that this holding 

ignores established precedent that an owner’s testimony is competent evidence

4 Id. *3-4.
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regarding the value of stolen property, citing, in relevant part,5 Poteet v.

Commonwealth,

6 Mitchell v. Commonwealth,7 and Brewer v. Commonwealth.8,

We disagree with the Commonwealth’s interpretation of the Court of 

Appeals’ holding, and further hold that it comports with each of the precedents 

cited by the Commonwealth. 

To begin, we do not construe the quoted language from Allen that “where 

the article does not appear to have a standard value in the open market, or its 

standard value is not shown, the evidence of its value must be arrived at from 

facts and circumstances testified to by witnesses who qualify themselves to 

speak as to its value,” to mean that the owners of damaged property are 

subject to higher scrutiny regarding their ability to testify as to the value of 

their property. Rather, it simply means that the owner must be able to provide 

5 The Commonwealth also relies on Commonwealth v. Reed, 57 S.W.3d 269 (Ky. 

2001), and Meyer v. Commonwealth, 393 S.W.3d 46 (Ky. App. 2013). Neither case 

supports its argument. 

In Reed, there was no dispute as to the total value of the stolen property. 57

S.W.3d at 271. Instead, the issue was whether the Commonwealth demonstrated that 

the specific items ultimately found in the defendant’s possession were worth the 

requisite amount to support the charge against him. Id. 

In Meyer, the defendant stole two projectors from the University of Kentucky. 

393 S.W.3d at 55-6. The evidence as to their value came not from their owner, but 

from an employee of the university who worked in Information Technology in 

Audio/Visual Services. Id. at 56. 

6 556 S.W.2d 893 (Ky. 1977).

7 538 S.W.3d 326 (Ky. App. 2017). 

8 632 S.W2d 456 (Ky. App. 1982). 
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“reliable facts [and circumstances] . . . [that provide] some minimal indicum of 

reliability beyond mere allegation.”9 This is supported by the Court of Appeals’ 

later statement that “Putney offered nothing more than his mere opinion of the 

worth of both the metal and the diner.” 

Indeed, we have long held that “the testimony of the owner of stolen 

property is competent evidence as to the value of the property.”10 Putney could 

accordingly, theoretically, be qualified to testify to the value of the diner before 

and after the theft, and as to the value of the recovered stainless-steel siding. 

But to do so his testimony must be supported by facts and circumstances

providing some minimal indicum of reliability beyond mere allegation. This, we 

discern, is the “qualification” the Court of Appeals refers to. 

For example in Poteet, the Defendant was convicted of receiving stolen 

property valued at more than $100.11 On appeal, the defendant asserted that 

there was insufficient evidence as to the value of the stolen property, in 

particular: a welding wrench, a welding helmet, an 18-inch pipe wrench, and a 

“chain hoist come along.”12 The owner of the items testified that the welding 

wrench was worth $30 and the helmet was worth $15.

13 More importantly for 

9 Wiley v. Commonwealth, 348 S.W.3d 570, 575 (Ky. 2010) (“When ordering 

restitution, a trial court must base an award on reliable facts. . . . although a lower 

standard of due process applies at sentencing, the facts relied on by the court must 

have some minimal indicium of reliability beyond mere allegation.”). 

10 Reed, 57 S.W.3d at 270 (citing Poteet, 556 S.W.2d at 896). 

11 556 S.W.2d, at 894.

12 Id. at 895-96.

13 Id. at 894.
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our purposes, the victim testified that the chain hoist come along was worth 

$130, supported by his insurance claim on that item for $130.14 The Poteet 

Court held that “there was sufficient evidence to show that [the victim’s] stolen 

property knowingly received by [the defendant] was of the value of more than 

$100.”15 Accordingly, the owner’s testimony was more than just a mere 

allegation as to their value: he provided proof that at least one of the items was 

worth $130 in the form of an insurance claim. This would of course mean that 

the aggregate value of all the items taken exceeded $100. 

Similarly, in Mitchell, the defendants stole several pieces of jewelry from 

the victim.

16 At their restitution hearing, the victim testified that “she obtained 

the value of the missing jewelry listed by researching their value on 

Amazon.com and that she determined the value by using the median prices for 

the items.”17 On appeal, the defendants argued that the victim’s testimony as 

to the value of the jewelry based on her internet research was insufficient to 

constitute substantial evidence, and that “the Commonwealth was required to 

prove their value with photographs, insurance records, receipts or other 

documented proof of the value and quality of the missing jewelry.”18 The Court 

of Appeals disagreed: 

Even in the guilt phase, the Supreme Court has ruled that the 

testimony of the owner of stolen property is competent evidence as 

14 Id. 

15 Id. at 896 (emphasis added). 

16 Mitchell, 538 S.W.3d at 328.

17 Id. 

18 Id. at 329.
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to the value of the property. The same is true in restitution 

hearings where the standard is preponderance of the evidence, not 

the reasonable doubt standard. While it may have been preferable 

for the Commonwealth to produce documentation, it was not 

required. . . . If [the defendants’ argument] was taken to its logical 

conclusion, restitution could never be imposed for an item of 

jewelry that had not been photographed, appraised, measured, 

weighed and insured. Although they have pointed to some 

weaknesses in the Commonwealth’s evidence, [the victim] had 

sufficient reliable information, based on her memory and the 

photographs, to find comparable items on the Internet. We are 

required to give “due regard ... to the opportunity of the trial court 

to judge the credibility of the witnesses.” [CR] 52.01; as a sign of 

her reliability, [the victim] did not choose the highest-priced 

Internet comparables in assigning values to her jewelry.19

Finally, in Brewer, a case from 1982, the defendant was convicted of 

stealing a two-month-old 1980 Suzuki motorcycle, and argued on appeal that 

there was insufficient evidence that the motorcycle was worth more than 

$100.20 The Court of Appeals disagreed, stating:

The owner of the motorcycle can certainly state his opinion as to 

the value of his property. His testimony was not unreasonable 

since the motorcycle, only two months old when stolen, had only 

3000 miles on it and was unwrecked. There was sufficient 

descriptive testimony about the motorcycle which would enable the 

jury to make an informed conclusion that the cycle was worth 

more than $100.00 in value.21 

Accordingly, the particular circumstances in Brewer were such that the 

owner’s testimony as to the motorcycle’s value exceeding $100 was sufficient. 

19 Id. (internal quotation marks and citations omitted). 

20 632 S.W.2d at 457.

21 Id. 
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In this case, Putney provided absolutely no evidence as to the diner’s 

worth at the time of the theft, the diner’s worth after the theft, or the value of 

the recovered stainless-steel, let alone evidence or circumstances that would 

support those respective values. On remand, if he can provide some reliable 

evidence as to those values, he would certainly be qualified to testify as to 

those amounts given that he is the owner of the diner. At bottom, we do not 

interpret the Court of Appeals as altering in anyway our precedents that state 

an owner may give testimony as to the value of his or her property. Instead, 

the Court of Appeals found fault in the fact that Putney had provided nothing 

to suggest that he was qualified to testify as to the value of the diner before and 

after the theft or the value of the recovered sheet metal. This is consistent with 

our precedents as provided above. 

Consequently, we decline McMichael’s invitation to uphold the Court of 

Appeals’ holding on the basis that it drew a distinction between items that are 

“merchandise,” i.e., items found in “standard markets” that have easily 

discernable values—televisions, jewelry, tools, etc.—and items that are not 

found in standard markets like the antique diner at issue herein. We further 

decline to hold that owners of such unique property should be “qualified” to 

testify to the value of their property under the factors espoused in Summe v. 

Gronotte.

22 This would needlessly complicate restitution determinations

because, regardless of what the item at issue in a given case is, a restitution 

22 357 S.W.3d 211 (Ky. 2011) (relying on Commonwealth, Dep’t of Highways v. 

Slusher, 371 S.W.2d 851 (Ky. 1963)). Slusher held that “[a] witness, to be qualified to 

testify as to the value of realty, must know the property to be valued and the value of 
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determination must be based on reliable facts that have some minimal indicum 

of reliability beyond mere allegation. Such evidence was altogether absent in 

this case, and that absence formed the basis for the Court of Appeals’ holding. 

CONCLUSION

Based on the foregoing, we affirm the Court of Appeals and remand this 

case to Jefferson Circuit Court for a retrial on restitution consistent with both

this opinion and that of the Court of Appeals. 

VanMeter, C.J.; Bisig, Conley, Keller, Lambert, and Nickell, JJ., sitting.

All concur. Thompson, J., not sitting. 

COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Daniel J. Cameron 

Attorney General of Kentucky

Kristin Leigh Conder

Assistant Attorney General 

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Christopher Barrett Thurman 

Louisville Metro Public Defender 

Leo Gerard Smith 

Louisville Metro Public Defender 

the property in the vicinity, must understand the standard of value, and must be 

possessed of the ability to make a reasonable inference.”