Insufficient evidence of amount of damage

Corrine E. Gunning won in State v. Wilson, No. 111,280 (Kan. App. July 31, 2015)(unpublished), reversing a Douglas County felony criminal damage to property conviction related to damage to a shed and a tanning bed found within the shed. Mr. Wilson argued that the state failed to prove that he had caused more than $1,000 of damage, required to show a felony.  The COA noted that the victim testified that material to fix a damaged shed cost $208, but that there was no evidence regarding the cost of labor to repair the shed.  Similarly, the state did not present any evidence of the value of the tanning bed:

Notwithstanding a lack of evidence as to the dollar amount of damage that was sustained to the tanning bed, the State argues in its brief that a reasonable jury could have concluded from the evidence presented at trial that the damage to the tanning bed was equal to or greater than $752. Citing to Cox's testimony that she was told it would cost more to fix the tanning bed than it was worth, the State argues the tanning bed's fair market value on the date it was damaged was the proper measure for the jury to use in determining the amount of damage sustained to the bed. But the State's argument is grounded in impermissible inference stacking. The rule against inference-stacking prohibits a jury from speculating on unjustifiable inferences and is applicable when the evidence is so uncertain or speculative that it amounts only to mere conjecture or possibility. It applies here because there was no evidence to establish what precisely was wrong with the tanning bed; thus, the information provided by the retail sales clerk to Cox that it would cost more to fix the tanning bed than it was worth is without any evidentiary support and speculative. To then rely on this speculative evidence to support a conclusion that the value of the damage sustained to the bed is the fair market value of the bed on the day it was damaged impermissibly stacks an inference upon an inference.

Because there is absolutely no evidence in the record from which a jury could have determined the value of the damage sustained to the tanning bed, we conclude Wilson's conviction must be reversed. Based on the evidence in the record, the proper remedy is to remand the case with directions to resentence Wilson for a class B nonperson misdemeanor conviction for criminal damage to property.

[Update: the state did not file a PR and the mandate issued on September 3, 2016.]