State v. Kohn

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

David Kohn,       
Appellant.

Appeal From Florence County

James E. Brogdon, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-247

Submitted January 29, 2003 - Filed April
2, 2003

AFFIRMED AS MODIFIED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia;
for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
of Columbia; Solicitor Edgar Lewis Clements, III, of Florence; for Respondent.

PER CURIAM:  David Kohn pled guilty to conspiracy
and was sentenced, under the Youthful Offender Act,
[1] for a period not to exceed five years, suspended, with probation for
two years.  After a restitution hearing, the trial judge amended the sentence
to four years probation and ordered restitution in the amount of $2,975.  Kohn
appeals.

FACTS

Kohn was indicted for grand larceny.  The State alleged he
and another individual stole a vehicle and removed the stereo, speakers, and
approximately 30 compact discs.  The owner of the vehicle alleged $5,064 in
damages.  The State agreed to have Kohn enter a guilty plea for conspiracy. 

At the plea hearing, the judge explained the maximum possible
sentence for the offense, and explained that Kohn had the right to a jury trial. 
Kohn stated that he wished to waive his right to a trial and plead guilty. 
The plea judge ascertained that Kohn had adequate time to consult with counsel,
and that he had not been coerced or pressured in any way.  After a recitation
of facts by the State, the plea judge accepted Kohn’s plea, finding it was freely
and voluntarily entered.  The judge sentenced Kohn under the Youthful Offender
Act for a period not to exceed five years, which was suspended on two years
probation.  However, the judge stated that he was free to alter the sentence
after the restitution hearing. 

Two witnesses testified at the restitution hearing – Kohn
and the vehicle owner, Darlene Heckman.  Heckman stated that, after she purchased
a 1990 Honda for her son, she installed a new stereo and speakers.  She testified
the cost of the stereo – including installation – was $400, the speakers were
$300, and the compact discs were worth approximately $300.  Heckman also testified
that some of the interior trim was damaged, which would cost $175 to replace.   

Heckman stated that, prior to the incident, the car “was
in really good shape.”  However, she further testified that, though the car
was driven to her home from the police impound lot, it would not start three
days later.  Heckman stated the car “never cranked again.”  Heckman testified
she towed the car to a mechanic, who gave her a repair estimate of $1,800.
[2]   Yet, as to this $1,800 worth of damage, Heckman admitted, “I can’t
say that just what had happened or how it had been driven caused the damage
to the car not to drive” and “I can’t sit here and say that that was caused
by the defendant.” 

Kohn testified that his co-conspirator actually drove Heckman’s
car, while he followed behind in his own vehicle.  He stated the two cars traveled
approximately four miles at 50 miles per hour.  Kohn testified that, while he
did not drive the stolen vehicle, he did not notice any mechanical difficulties
or unusual noises.  Kohn testified the car was in “mechanical order” when he
left it, and that he had not damaged the interior of the car. 

At the close of the restitution hearing, defense counsel
contested inclusion of the $1,800 in mechanical damage to the car.  Counsel
contended no connection had been made between Kohn’s actions in stealing the
car and the stereo equipment and the subsequent mechanical failure.  He stated
Kohn did not object to the $1,175 sum resulting from damage to the trim and
loss of the stereo, speakers, and compact discs.  The trial judge stated he
believed a “sufficient showing [had] been made by the State” and found there
was “evidence to establish the connection between the ultimate damage to the
vehicle and the acts of Mr. Kohn and the person who was with him.” 

LAW/ANALYSIS

Kohn argues the plea judge erred in ordering him
to pay restitution for the mechanical failure of the victim’s car when the State
failed to prove by a preponderance of the evidence that his actions caused the
mechanical failure. 

“The trial judge has broad discretion in determining
the manner, method, and amount of restitution.”  State v. Cox, 326 S.C.
440, 442, 484 S.E.2d 108, 109 (Ct. App. 1997).  “The judge must make specific
findings of the underlying facts and circumstances on the record.”  Id. 
See also S.C. Code Ann. § 17-25-322 (2002).

Initially, we note the plea judge failed to make
specific findings regarding the underlying facts in this case.  The judge simply
found there was sufficient evidence to establish a connection between Kohn’s
act of working with another to steal Heckman’s car and the car’s subsequent
mechanical failure.  As such, the trial judge was in error.  See S.C.
Code Ann. § 17-25-322(C) (2002) (“[t]he court shall enter its order upon the
record stating its findings and the underlying facts and circumstances of them”);
State v. Cox, 326 S.C. at 442, 484 S.E.2d at 109.   

Regardless, we find the plea judge abused his discretion
in requiring Kohn to make restitution for the $1,800 worth of mechanical damage
to the car.  The only evidence in the record to substantiate the $1,800 sum
is Heckman’s testimony.  However, Heckman’s testimony does not describe the
nature of either the damage or the necessary repairs.  While Heckman testified
a mechanic provided her with this $1,800 estimate, the estimate was not entered
into evidence, and the mechanic neither testified at the restitution hearing
nor submitted an affidavit detailing the repairs. 

Furthermore, as Heckman admitted at the hearing,
there is no proof that Kohn’s action in stealing the car and its stereo components
in any way caused or contributed to the car’s mechanical problems.  Kohn testified
the car was in “mechanical order” when he left it, and Heckman testified the
car was driven home from the police impound lot immediately after the incident. 
We fail to see any kind of causal link between the theft of the vehicle and
the ensuing mechanical failure of an eleven year old vehicle.  Accordingly,
the trial judge abused his discretion in finding there was evidence to establish
a connection between Kohn’s actions and the ultimate damage to the car.   

CONCLUSION

Based upon the foregoing, Kohn’s plea and sentence
are affirmed and the amount of restitution modified from $2,975 to $1,175.

AFFIRMED AS MODIFIED.

HEARN, C.J., GOOLSBY and SHULER,
JJ., concur.

[1] S.C. Code Ann. §§ 24-19-10 to -160 (1989 &
Supp. 2002).

[2] Heckman opted not to spend the $1,800 to repair
the vehicle.