State v. Hall

• Decision Date: 11 February 2011
• Docket Number: 102,663.,Nos. 102,297,s. 102,297
• Parties: STATE of Kansas, Appellee,v.Pamela Sue HALL, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 290

247 P.3d 1050

STATE of Kansas, Appellee,

v.Pamela Sue HALL, Appellant.

Nos. 102,297

102,663.

Court of Appeals of Kansas.

Feb. 11, 2011.

[247 P.3d 1052 , 45 Kan.App.2d 290]

Syllabus by the Court

1. Whether a trial court has jurisdiction is a question of law subject to unlimited review on appeal.

2. A sentencing court may retain jurisdiction at sentencing to decide the amount of restitution owed as condition of probation at later date.

3. Restitution is not a part of the punishment or sanction for a defendant's conduct; it is to make the victim whole again from a loss or damage resulting from the defendant's crime. It also serves the functions of deterrence and rehabilitation of the guilty.

4. An item's fair market value is the usual standard for calculating restitution for a victim's loss of, or damage to, the item as a result of the defendant's crime.

5. The fair market value of inventory is the price that a willing seller and a willing buyer would agree upon in an arm's length-transaction.

6. Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court's determination on restitution must be based on reliable evidence which yields a defensible restitution figure.

7. A property crime victim is entitled to restitution only up to the amount of his or her actual loss.

8. When crime victims have purchased their business inventory at wholesale prices rather than at retail market prices and when they can replace their missing or damaged inventory at similar wholesale prices, they have lost no retail sales because of the missing or damaged inventory. As a result, restitution based on retail market prices is not a defensible restitution figure.

9. An audit is properly included as part of restitution when it is a reasonable consequence of the defendant's crime.

10. In reviewing an alleged violation of an order in limine, an appellate court must decide the following: (1) Was the order in limine violated? and, if so, (2) did the violation substantially prejudice the defendant? The defendant bears the burden of establishing substantial prejudice resulting from the admission of evidence in violation of an order in limine.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.Drew A. Cummings, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.Before GREENE, C.J., GREEN and STANDRIDGE, JJ.GREEN, J.

Pamela Sue Hall was convicted by a jury of one count of theft and one count of computer crime. Hall was sentenced to a term of 16 months' imprisonment, but she was granted probation for a term of 18 months. As a condition of probation, the trial court ordered restitution. On appeal, Hall contends that the trial court lacked jurisdiction to increase the amount of restitution ordered at Hall's postsentence hearing from the amount of restitution previously ordered at sentencing. We disagree. In addition, Hall asserts that the trial court erred in determining the amount of restitution she owed. We agree. Accordingly, we reverse, vacate the amount of restitution awarded, and remand to the trial court to determine the amount of restitution owed based on the wholesale cost of the crime victim's inventory. Hall also contends that the trial court erred in including the crime victim's auditing expenses as a part of the restitution order. We disagree and affirm on this issue.

Finally, Hall maintains that the trial court abused its discretion in denying Hall's motion for mistrial based on a violation of the order in limine. We disagree and affirm. Accordingly, we affirm in part, reverse in part, vacate in part, and remand with directions.

Dr. Marc and Sue Hardin initially hired Pamela Sue Hall to work as a veterinary technician at their Metcalf 107 Animal Clinic (the Clinic), but they soon realized she lacked the necessary skills for working with animals and limited her to clerical duties. Those duties included scheduling appointments, billing, and data entry from inventory orders using the Clinic's AVImark computer software system, which Hall already knew how to use.

The Clinic had a policy of providing discounted veterinary care and products for employees' pets with the understanding that the employees would pay their bills before receiving their next paychecks. Under this policy, Hall's pets received numerous veterinary services and products valued in excess of $1,000.

After working for the Clinic about 2 months, Hall called Sue Hardin at home late one evening in March 2008 and emotionally pled for an early advance on her paycheck so she could fly to Florida to see her mother, who Hall reported was on life support after suffering a debilitating stroke. Out of empathy and based on Hall's stated plans to return, the Hardins did not verify whether Hall had any outstanding bills before advancing her paycheck.

When a Florida veterinarian later contacted the Clinic's receptionist about refilling Hall's pet's prescription diet, she could not find Hall's pets' records, so the Hardins began to suspect Hall was not returning from Florida after all. Thus, they decided to further investigate Hall's clerical activities at the Clinic.

An audit of Hall's clerical activities on the AVImark system revealed Hall had made numerous improper entries. For example, the Hardins discovered Hall had made changes to inventory counts, overrode product prices, and deleted her pets' medical histories and the outstanding bills for their services on the AVImark system. The Hardins were also unable to locate Hall's pets' x-rays or soap sheets, which were Dr. Hardin's handwritten charts of the care he provided the animals.

The Hardins notified the police of their suspicions of Hall's thefts from the Clinic. Detective Lance Jordan was assigned to investigate their allegations. As a part of his investigation, Jordan called and spoke to Hall, who either denied or offered innocent explanations for the Hardins' allegations against her. For example, Hall admitted she had taken some merchandise from the Clinic without paying, but she said she kept a list of the merchandise and left a note behind. Hall explained that she assumed the Clinic would bill her for the items when they billed her for her pets' services. Hall denied that she deleted her pets' records or bills or otherwise altered the AVImark system. Rather, she thought any inventory count inconsistencies probably resulted from an inventory reconciliation she worked on with Dr. Hardin.

Jordan followed-up with the Hardins regarding Hall's explanations. Dr. Hardin denied ever working with Hall on inventory. The Hardins also denied that they knew Hall was taking merchandise, that they ever found a sticky note for items she had taken, or that they allowed Hall to run a tab for merchandise.

Jordan also spoke to Colleen and Jack Udell, two of Hall's roommates during the time she worked at the Clinic. The Udells—who were formerly married and living together as roommates along with Hall and Colleen's current husband, Kevin—told Jordan they had seen Hall with numerous items of Clinic merchandise on several occasions. Nevertheless, they had no reason to suspect her of stealing the items until after Colleen took Hall to Florida.

With the help of the Udells—who visited the Clinic and helped compile a list of 72 items of inventory that they had seen in Hall's possession—the audit of the AVImark system, and other internal audits, the Hardins placed the value of the Clinic's missing inventory and Hall's unpaid bills in excess of $1,000.

As a result of Jordan's investigation, the State charged Hall with one count each of theft of property valued between $1,000 and $25,000, in violation of K.S.A. 21–3701, and computer crime in violation of K.S.A. 21–3755.

At Hall's ensuing jury trial, Detective Jordan, the Udells, the Hardins, and an AVImark support technician testified consistent with the earlier mentioned facts. Hall testified in her own defense and also presented testimony from her mother and boyfriend.

Because Hall does not challenge the sufficiency of the evidence to support her convictions in this appeal, a detailed discussion of the evidence contrary to her convictions is unnecessary. Highly summarized, Hall's defense at trial was as follows: She denied the Hardins' accusations about her unpaid bills and pets' missing records; she offered an innocent explanation for the pet supplies the Udells reported were in her possession; she suggested the Clinic's inventory inconsistencies resulted from her inexperience in using the AVImark system; she opined that the Hardins were accusing her of these crimes because they were hurt after she misled them about her mother's illness and her plans to return from Florida; and she implied that Colleen wanted revenge against her because Colleen learned Hall had slept with her husband (Kevin) when he and Colleen were engaged.

The jury convicted Hall as charged. The trial court later imposed an underlying sentence of 16 months in prison and placed Hall on probation for 18 months, a condition of which was to pay $14,293.11 restitution to the Hardins. We consolidated Hall's separate appeals from her sentencing and the restitution order entered after her post-sentencing challenge to the initial restitution amount of $10,860.38.

This appeal by Hall requires us to determine whether the trial court had jurisdiction to enter its later restitution order. Before reaching this question of jurisdiction, it is necessary for us to set out some additional facts of this case.

Just before pronouncing Hall's sentence, the trial court summarized the facts that would guide its decision, including the fact that the Hardins were seeking restitution in the amount of $10,860.38, as reflected in the presentence investigation report. When the trial court inquired if the parties had any objections to its findings,...