State v. McAnally, 119,133

• Citation: 444 P.3d 1017 (Table)
• Decision Date: 26 July 2019
• Docket Number: No. 119,133,119,133
• Parties: STATE of Kansas, Appellee, v. Cheryl Denise MCANALLY, Appellant.
• Court: Court of Appeals of Kansas

444 P.3d 1017 (Table)

STATE of Kansas, Appellee,
v.
Cheryl Denise MCANALLY, Appellant.

No. 119,133

Court of Appeals of Kansas.

Opinion filed July 26, 2019

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Leben, P.J., Malone and Gardner, JJ.

MEMORANDUM OPINION

Leben, J.:

Cheryl McAnally appeals the district court's order that she pay $789,282 in restitution. McAnally had pleaded guilty to one count of felony theft and four counts of felony forgery for embezzling about $1 million from medical staff and hospital bank accounts at Overland Park Regional Medical Center.

The restitution order came after a contested evidentiary hearing. The State first documented the total losses of the medical staff and hospital at $972,273, an amount McAnally didn't contest. The State's accounting witnesses then showed that McAnally had repaid $22,542 by check. And there were $2,370 in cash deposits for which the source couldn't be identified that the State agreed to credit to McAnally.

Some uncertainty arose, though, when a partial analysis of the different accounts showed $158,079 more coming back into the accounts than the State's witnesses could account for. Without looking at other accounts (from which the money had come), the State's accounting witnesses couldn't determine the source of that amount of credits. The district court decided to credit McAnally with the unexplained $158,079 amount as well. The court subtracted these three sums—$22,542 and $2,370 and $158,079—from $972,273 to arrive at the ordered restitution amount, $789,292.

But McAnally testified that she had repaid much more. She estimated that she had returned $500,000, though she did not offer any documentation.

On appeal, she argues that she "testified unequivocally that she had repaid approximately $500,000" and "[t]he State presented no evidence to contradict this testimony." She contends that the district court had to accept her testimony: "Having found that she had paid some money back, no reasonable judge would find that her testimony that she had paid back more money was not credible."

A bold argument—but not a persuasive one. The district court didn't ignore McAnally's testimony; the court found her testimony lacked credibility. That's no surprise in the very case in which McAnally was found to have stolen about $1 million through secret withdrawals over several years. And a court acting as fact-finder can take a person's dishonest acts, like embezzlement and forgery, into account in determining that person's credibility. See K.S.A. 60-421.

So we find nothing wrong with the district court's conclusion that it "[did] not accept the defendant's testimony that she replaced a lot more money back into the account" because "[t]here is just nothing to support that except for her testimony and the Court does not accept that part of her testimony." The trial judge who hears the evidence makes the credibility judgments, not the appellate judges who only review a transcript. See State v. Woodring , 309 Kan. 379, 380, 435 P.3d 54 (2019).

We still must look at the evidence supporting the district court's decision to be sure that it didn't abuse its discretion in setting the restitution amount. See State v. Martin , 308 Kan. 1343, 1349-50, 429 P.3d 986 (2018). The court would abuse its discretion if it decided based on a legal or factual error or if its decision was so off the mark that no reasonable person would agree with it. City of Leawood v. Puccinelli...