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Bush v. State12/2/2003
ying recovery for sentimental value of personal property is not applicable if the items have primarily sentimental value. Sentimental value may be associated with feelings generated by such items as family heirlooms, photographs, and papers, handicrafts, and trophies, as these items are generally capable of generating sentimental feelings. But the courts will not allow a substantial recovery for injuries to property interests in things when the specific owner has an atypical sentimental connection with the item involved.
22 Am.Jur.2D Damages § 439 (1988).
In this instance the record will not support a finding that the 1988 Chevrolet pickup involved in this case had a "special," "unique," or "sentimental" value in an objective sense, or even in a subjective sense vis-à-vis the victim. In addition, we conclude that a 1988 Chevrolet pickup has a readily ascertainable fair market value that equates with the statutory directive that the victim of a crime be recompensed for "actual pecuniary loss." The restitution statute provides for a civil action to collect such "special" damages as those sought by this victim. Because issues such as whether the pickup was special, unique, or of sentimental value, and what that value might be, if any, are very difficult fact questions, they are better suited for civil litigation and jury resolution.
CONCLUSION
Based on this analysis, we hold that Bush did not waive his right to appeal his sentence to the extent that the sentence was not authorized by the restitution statute. Furthermore, we hold that the district court did impose an illegal sentence in fashioning the restitution award. This matter is remanded to the district court with directions that restitution be set in an amount that reasonably compensates the victim for his actual pecuniary damage, i.e., the fair market value of his 1988 Chevrolet pickup.
LEHMAN, Justice, dissenting, with whom KITE, Justice, joins.
I must respectfully dissent.
The majority finds the order of restitution in this matter constitutes an illegal sentence. The basis of the majority's finding appears to be that the majority does not agree that the "pecuniary damages" in this case can be something other than the pickup's readily ascertainable fair market value at the time of theft. The majority thus concludes that the amount of restitution ordered by the district court is not reasonable. In reaching this conclusion, the majority has substituted its own determination of reasonable restitution for that of the district court.
As the majority stated, our review of an order of restitution "is confined to a search for procedural error or a clear abuse of discretion." (citing Brown v. State, 2003 WY 72, 70 P.3d 238, (Wyo. 2003)). When considering an abuse of discretion, we must determine whether the district court could reasonably conclude as it did. Herrera v. State, 2003 WY 25, , 64 P.3d 724 (Wyo. 2003). We look to see whether the district court exercised sound judgment with regard to what is right under the circumstances without doing so arbitrarily or capriciously. Brown, . Specifically, the applicable statutes require us to determine whether the damages awarded could have been recovered in a civil action arising out of the same facts or events. See Wyo. Stat. Ann. § 7-9-103 (b); Wyo. Stat. Ann. § 7-9-101 (iii); Alcaraz v. State, 2002 WY 57, -15, 44 P.3d 68, -15 (Wyo. 2002) (holding that a portion but not all of the cost of video surveillance equipment could be allocated to the defendant charged with felony larceny).
The oral pronouncements from the bench as well as the restitution order indicate that the district
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