In re D.A.

197 P.3d 849, 40 Kan. App. 2d 878
CourtCourt of Appeals of Kansas
DecidedNovember 26, 2008
DocketNo. 99,727
StatusPublished
Cited by8 cases

This text of 197 P.3d 849 (In re D.A.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re D.A., 197 P.3d 849, 40 Kan. App. 2d 878 (kanctapp 2008).

Opinion

McAnany, J.:

Two 12-year-old boys, D.A. and N.A., were ad[880]*880judicated juvenile offenders for breaking into and vandalizing a church in Perry. D.A. appeals his adjudication, claiming the evidence against him was insufficient; his lawyer was ineffective; his due process rights were violated; the court lacked jurisdiction because he was developmentally delayed and had not yet reached the maturity of the threshold age for jurisdiction over a child under the Revised Kansas Juvenile Justice Code (Juvenile Code); and, finally, he lacked the mental maturity to form the intent necessary for adjudication for these offenses.

The charges arose from an incident on October 8, 2006. When Pastor Douglas Merriman arrived at his church that day, he discovered D.A. and N.A. sitting outside with various items of church property strewn around'them. The boys fled. Upon entering the church, Merriman observed extensive damage from vandalism throughout the church. He found items tom off walls, smashed light bulbs, ceiling fans with missing blades, tipped over pianos, graffiti on the bathroom doors, water-damaged floors, a smashed chandelier, broken bathroom mirrors, paper-clogged toilets, and glitter glue on the carpets and steps. Fire extinguishers had been discharged inside the church. D.A. admitted his participation to Pastor Merriman shortly after the incident.

The boys were charged with burglary and criminal damage to property in excess of $25,000. Attorney Dennis Hawver was appointed by the court to represent the boys.

Hawver reviewed the complaint and police report and discussed possible disposition options with the prosecutor. The prosecutor expressed a willingness to dismiss the burglary charges against the boys in exchange for their stipulating to the criminal damage charges and each of their families paying half of the church’s out-of-pocket expenses incurred on account of the vandalism.

Hawver first communicated with the boys in a joint meeting with them and their families on the morning of the boys’ first appearances on November 21, 2006. He told them what the prosecutor was prepared to do. N.A. and his family agreed to accept the State’s offer. D.A.’s family wanted more time to consider the offer, so the court continued the matter until December 12, 2006. At the end of the hearing, Hawver gave his business card to D.A.’s parents [881]*881and told them that “we could contact him to retain counsel through him or we could hire our own attorney.” Hawver then told D.A.’s parents that N.A. had told the police that “it was all [D.A.].”

D.A.’s family decided to privately retain counsel to represent their son. To that end, they hired attorney Karen Eager, who entered her appearance on December 12, 2006. Hawver withdrew from representing D.A. at that time, though he continued to represent N.A. With Eager as his substitute counsel, D.A. was arraigned and pled not guilty.

On March 16, 2007, D.A. moved to dismiss the charges based upon ineffective assistance of counsel and prosecutorial misconduct. At the evidentiary hearing on May 2, 2007, the court received extensive testimony from D.A.’s mother, from the director of support services for the Association of Retarded Citizens of Douglas County, and from attorney' Hawver. Following the hearing, the district court denied the motion and set the matter for trial on June 1, 2007.

At trial N.A. testified against D.A. N.A. was subpoenaed by the State to testify. There is no indication that Hawver appeared or was present for N.A.’s testimony. In fact, the appearances noted in the record indicate the contrary.

Pastor Merriman testified to the extensive damage to his church, where he had been the minister since 1999. Merriman’s duties at the church included being its administrator. Over D.A.’s objection, he testified that the damage to the church exceeded $25,000.

Ramon Gonzalez, part-time police chief of the City of Perry and a part-time detective for the Jefferson County Sheriff s office, testified regarding his prior work as a risk manager for Southwestern Bell. In that job, he was trained to identify losses caused by employees and to estimate restitution costs the company would have to pay. Gonzalez testified that the water damage to the floors, the carpet damage from glue, and the discharge of fire extinguishers involved more than nine rooms in the church building. In his view, the damages were $25,000 or greater.

Before resting its case, the State amended its criminal damage charge to criminal damage to property exceeding $1,000, rather than $25,000 as originally pled.

[882]*882The district magistrate judge adjudicated D.A. a juvenile offender based upon both the burglary charge and the amended criminal damage charge. Upon appeal for a de novo review on the record before the district judge, D.A. was again adjudicated based on these charges. D.A. now appeals to us.

Sufficiency of the Evidence

D.A. claims the court should have excluded the damages evidence as speculative and without foundation. Without it, he claims there is insufficient evidence to support the adjudication for criminal damage to property.

We review the sufficiency of the evidence, both direct and circumstantial, in the light most favorable to the State to determine if a rational factfinder could have found D.A. guilty beyond a reasonable doubt. See State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007); In re B.M.B., 264 Kan. 417, 433, 955 P.2d 1302 (1998) . Here, the issue is whether there was substantial competent evidence to establish that the loss to the church from D.A.’s vandalism exceeded $1,000.

Except for certain unique types of personal property, the damages needed to support a conviction for criminal damage to property are measured by the cost to restore the damaged property, unless the repair costs exceed the fair market value of the property, in which case the fair market value at the time of the loss is the measure. See State v. Jones, 247 Kan. 537, 540, 802 P.2d 533 (1990).

While the factfinder may not rely on rank speculation, mathematical precision in the calculation of damages is not required. Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). Here, we must determine whether there was properly admitted evidence which, viewed in the light most favoring the State, establishes a loss in excess of $1,000.

Property owners are presumed to know the value of their property. State v. Moss, 221 Kan. 47, 49, 557 P.2d 1292 (1976). The term “owner” in the Kansas Criminal Code means any person with any interest in the subject property. K.S.A. 21-3110(13). As pastor and administrator of the church, Merriman had an interest in the [883]*883property. As the church’s administrator he was charged with the care, oversight, and stewardship of the church’s property, and he had the authority to speak for the church as its agent regarding the value of church property. Cf., e.g., Brooks v. January, 116 Mich. App. 15, 321 N.W.2d 823

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Cite This Page — Counsel Stack

Bluebook (online)
197 P.3d 849, 40 Kan. App. 2d 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-da-kanctapp-2008.