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State v. Goeller10/31/2003
se the acquittals meant there was no factual finding of a causal link between defendant's driving under the influence and the victim's death; in fact, there was what amounted to a negative finding. Henninger has since been cited for the proposition that a defendant cannot be ordered to pay restitution for damages arising out of a charge leading to acquittal. See McElrath v. State, 821 So. 2d 1210 (Fla. Dist. App. 2002). Goeller was not acquitted of DUI or of driving left of center here, and the holding of Henninger therefore does not help him.
Finally, Goeller also cites State v. LaFoe, 24 Kan. App. 2d 662, 666-67, 953 P.2d 681 (1997), in which a Court of Appeals panel stated: "The State was not required to prove Lafoe's blood alcohol level to demonstrate reckless conduct. The jury could have found that Lafoe was reckless in working a double shift, staying up to play poker, consuming several beers, and then attempting to drive." 24 Kan. App. 2d at 666-67. In defense counsel's words, LaFoe "supports Mr. Goeller's argument that driving while intoxicated and reckless battery are separate offenses and that one is not required to show the other and that one does not necessarily follow from the other." We do not dispute that DUI and reckless battery are distinct and that proof of one does not necessarily translate into proof of the other. Again, however, LaFoe does not answer the causation question before us here.
There can be no serious question that Norrish suffered injuries because of the collision with Goeller's car. Although Goeller's DUI no contest plea may not have been synonymous with an admission that Goeller was driving recklessly at the time of the accident, the evidence underlying the DUI plea provided circumstantial proof of the causal connection needed to satisfy the restitution statute. The blood sample provided by Goeller demonstrated the presence of multiple drugs in his system, and witnesses saw his car cross the center line several times before the accident. We hold that the district court's factual finding of a causal link between Goeller's unlawful conduct and Norrish's injuries was supported by substantial competent evidence that a reasonable person might accept as sufficient to support the ultimate conclusion. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001) (defining substantial evidence).
Turning to the amount of restitution set by the district judge, Goeller renews his district court objection that the amount of $1,000 per month is unworkable. He seeks reversal and a remand with instructions that the district judge enter a new order that takes his inability to pay into account.
The plain language of K.S.A. 2002 Supp. 21-4603d(b)(1) requires restitution "unless" the court finds a plan of restitution unworkable. Moreover, " f the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor."
The design of this provision makes clear that restitution is the rule and a finding that restitution is unworkable the exception. It also leads us to conclude that it is a defendant's burden to come forward with evidence of his or her inability to pay.
In this case, Goeller presented no evidence of his inability to pay, and his own and his counsel's statements about his former and likely future employment are adequate to uphold the district judge's choice of amount under our abuse of discretion standard of review. Furthermore, on the state of this record, it appears the district judge did take Goeller's limited ability to pay into account. The total amount of Norrish's damages far exceeded the total of $12,000 in restitution ordered, and Goeller'
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