State v. Dearmore

NOT DESIGNATED FOR PUBLICATION

Appeal from Ness District Court; BRUCE T. GATTERMAN, judge.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jacob T. Gayer, county attorney, and Kris W. Kobach, attorney general, for appellee.

Before COBLE, P.J., MALONE and WARNER, JJ.

MEMORANDUM OPINION

WARNER, J.:

Geoffrey Dearmore appeals the district court's order requiring him to pay $24,000 in restitution after he was convicted of theft of an all-terrain vehicle. He argues that this amount was not supported by substantial competent evidence. We agree. We thus vacate the district court's restitution order and remand the case so the district court may determine the appropriate amount of restitution.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2019, Dearmore was called by two of his friends, Frederick McNett and Shayla Richmeier, to help them pull their car from a ditch. In the midst of trying to extricate the car, however, Dearmore's own truck became stuck. The three entrenched friends spotted a farm nearby with a tractor and made a plan to use the tractor to free their vehicles.

Dearmore and McNett walked to the farm, but the two men could not find the keys to the tractor. So, they broke into a shed and found a Kubota side-by-side all-terrain vehicle (ATV). They started the ATV, drove it over to their vehicles, and used it to try to dislodge the vehicles from the ditch. But once again, they were unsuccessful.

Dearmore called another person to pick him up and take him home. Before Dearmore left the fated ditch, McNett handed him a cardboard box that contained trail cameras and memory cards that McNett had taken from the shed.

McNett and Richmeier then drove the ATV away, traveling about seven miles before the engine overheated and died. The two were later arrested after police received reports of a possible burglary in progress at a different shed. At the sheriff's office, McNett and Richmeier told the police officers that Dearmore had been with them when they stole the ATV. When officers went to Dearmore's house, they saw the box with the trail cameras and memory cards burning in a 55-gallon metal drum.

Dearmore was charged with burglary of the farm shed, theft of the trail cameras, and criminal damage to the trail cameras. He ultimately entered into a plea deal, pleading no contest to one count of theft of the ATV and agreeing to pay restitution.

The district court held a sentencing hearing, in part to determine the amount of restitution Dearmore would pay. Dearmore testified that he was responsible for the damage to the trail cameras and the ATV, and he acknowledged the ATV's owner "deserves something" for that damage. But he argued that he was not the only one at the farm so he should not have to pay for all the damage himself.

The ATV's owner testified at the hearing about the extent of the damage to his property. He stated that Dearmore and McNett damaged his farmhouse gate, broke the garage lock, loaded the ATV with miscellaneous tools, and overheated and ruined the ATV's engine. The owner also testified that he incurred expenses for travel time and lost wages for retrieving the ATV from over seven miles away, renting a trailer, and hauling the ATV to a repair shop in Hays. Finally, he claimed that he should be reimbursed mileage for driving from his home to nine different court proceedings.

The owner requested the district court to order $48,000 in total restitution. Although he appears to have created an itemization of how he arrived at this amount and brought it to the hearing, this itemization was never admitted as evidence and is not part of the record on appeal. Throughout his testimony, the owner only provided a few specific dollar amounts for the damage he incurred-$5,450 to rebuild the ATV engine, $3,495 for loss of equipment use when the ATV was being repaired, and $540 for the trail cameras and memory cards that Dearmore burned. (The other tools that had been removed were ultimately returned.)

The district court ordered that Dearmore pay $24,000 in restitution-exactly half of what the owner had requested-and ordered that he be jointly and severally liable for that amount along with McNett and Richmeier. Dearmore appeals.

DISCUSSION

Dearmore challenges two aspects of the district court's restitution order. First, he argues the district court erred when it awarded restitution beyond the damage directly related to the ATV, since his plea was limited to theft of the vehicle. Second, he argues that the amount of restitution-$24,000-was not supported by the evidence submitted at the sentencing hearing.

When a person is...