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State v. Goeller10/31/2003
uld render a plan of restitution unworkable."
Goeller focuses on the phrase "caused by the defendant's crime" and asserts that none of his crimes of conviction caused Norrish's injuries. Rather, he asserts, the injuries were actually and proximately caused by his driving left of center, and that charge was dismissed pursuant to his plea bargain. Thus, in his view, the district judge had no power to order any restitution.
We acknowledge that " n Kansas, restitution for a victim's damages or loss depends on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages." State v. Hunziker, 274 Kan. 655, Syl. 9, 56 P.3d 202 (2002). Although the setting of an amount of restitution is within a district judge's discretion, a district judge's factual finding of causation under K.S.A. 2002 Supp. 21-4603d(b)(1) is subject to a substantial competent evidence standard of review on appeal. See State v. Cooper, 267 Kan. 15, 977 P.2d 960 (1999); see also State v. Schulze, 267 Kan. 749, 752, 985 P.2d 1169 (1999) (appellate court has jurisdiction to review restitution order). Compare Lopez v. Unified Government of Wyandotte County, 31 Kan. App. 2d ___, ___, 75 P.3d 1234 (2003) (quoting Draskowich v. City of Kansas City, 242 Kan. 734, 741, 750 P.2d 411 (1988) (holding on causation dependent on "factual circumstances"); Starr v. Union Pacific Railroad Co., 31 Kan. App. 2d ___, 75 P.3d 266, 271 (2003) (expert affidavit creates material fact dispute as to causation.).
Goeller cites three cases to persuade us that there is insufficient evidence to establish the necessary causal link here.
In the first case, State v. Huser, 265 Kan. 228, 959 P.2d 908 (1998), defendant's vehicle struck two pedestrians. The district judge dismissed two counts of reckless aggravated battery at the preliminary hearing and bound defendant over for trial on one count of DUI and one count of refusal to submit to a preliminary alcohol screening test. The State appealed the dismissal of the reckless aggravated battery counts. This court observed that ample evidence supported the bind over on the DUI charge, but insufficient evidence supported the accusation that defendant was driving recklessly with a conscious and unjustifiable disregard of imminent danger to another person.
" nintentionally causing bodily harm to another by driving a car recklessly is now punishable under the aggravated battery statute. However, this statute continues to use the term reckless in the same manner in which it has been used previously a realization of imminent danger to another person and a conscious and unjustifiable disregard of that danger. K.S.A. 21-3201(c). As such, driving under the influence of alcohol does not equal driving recklessly, without additional evidence of reckless conduct." 265 Kan. at 236.
Goeller's argument ignores Huser's additional language stating that "the trial court had probable cause to find that the victims had suffered bodily harm at the hands of the defendant" and that the bodily harm was inflicted on the victims when they were struck by the car. 265 Kan. at 232. In other words, the Huser decision appears to reflect no hesitation about the existence of a causal link between the defendant's driving under the influence and the ensuing accident and bodily harm to the victims. Huser does not support Goeller's position here.
Goeller also cites Henninger v. State, 667 So. 2d 488 (Fla. Dist. App. 1996). In that case, defendant had been charged with DUI manslaughter, DUI involving injury, and simple DUI; and the jury acquitted him of the two more serious charges. The Florida Court of Appeals reversed a restitution order becau
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