Baier v. State of Wyoming - Restitution Award Appeal

THE SUPREME COURT, ST ATE OF WYOM ING 20 26 W Y 27 OC TO BE R TE RM, A. D. 20 25 February 26, 2026 KYLEA RAE BAIER, Appellant (Defendant), v. THE STATE OF WY OMING, Appellee (Plaintiff). S-25-0165 Appeal from the Distri ct Court of Lara mie County The Honorable Peter H. Froelicher, J udge Representing Appellan t: Office of Public Defe nder: Brandon T. Booth, State Public Defender; Kirk A. Morgan, Chief Appell ate Counsel; Jere my Meerkreebs, Senior Assist ant Appellate Counsel. Representing Appellee: Keith G. Kautz, Attorney General: Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senio r Assistant Attorney G eneral; Leanne J. Johnst on, Assistant Attorney General. Before BOOMGAAR DEN, C.J., and GRAY, FENN, JARO SH, and H ILL, J J. NOTICE: This opinion is subject to formal revision before pu blication in Pacific Reporter Third. Readers are requested to notify the Cler k of the Supreme Court, Suprem e Court Building, Cheyenne, Wyom ing 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent v olume.

1 FENN, Justice. [¶1] Kylea Bai er appeals from the j udgment and sentence entered fol lowing her p lea of no contest to conspira cy to commit theft. She contests only the restitution award of $92,722.79, arguing certain amounts charged to the victim’s credit cards should n ot have been included in the award because the vict im receive d a benefit from thos e charges. We affirm. ISSUE [¶2] Ms. Baier presents one issue on appeal, wh ich we re state as follows: Did the district court abuse its discr etion when it declined to deduct the cost of the concrete p ad poured on the vic tim’s property from the restit ution award? FACTS [¶3] In 2022, Kylea R. Bai er and Michael L. Smith approache d the victim regarding the sale of her late husband’s truck. Ms. Baier a nd Mr. Smith intr oduced themselves to the victim as Jaspar and Malachi McKeahan and falsely repres ented that Ms. Baier w as Mr. Smith’s daughter. After meeting the victim and inspecting her truck, Mr. Smith helped the victim se t up and orga nize an estate sale. After helping wit h the es tate sale, Mr. Smith asked the victim to meet him at a coffee shop, statin g he had a proposal for her, and instructe d her to bring a list of all her credit cards and what she could borrow on each card. During that meeting, Mr. Smith proposed to the victim that she fund his business venture. He represented that if t he victim funded his business, he would split the prof its with her. [¶4] Over time, the victim provided Mr. Smith with cash, c redit cards, c heck advances and loans, yet she never received any compen sation or payments from Mr. Smith. During the course of their relationship with the victim, Ms. Baier an d Mr. Smith spent the victim’s money, charged items t o her credit cards, and t ook other p roperty wit hout her per mission. At one point, Mr. Smit h persuaded the victi m to execute a warranty deed convey ing her home to Ms. Baier an d a company Ms. Baier owned called PC W. Mr. Smith repre sented to the victim that the execution of the warran ty deed was necessary for him to assist her with maintenance matt ers related to her home and ongoing financial difficulties. [¶5] After discovering cre dit cards had been remov ed from her office with out permissio n and unauthorized charg es were made on her cr edit cards, the victim reported Ms. Baier and Mr. Smith to the Lara mie County Sheriff’s Office. Detective Dustin Par ker with t he Laramie County Sheriff’s Office investigated the victim’s alleg ations of fraudu lent credit card activity. As par t of his investigat ion, Detective Parker obtained warranty deeds, bank statements, and cr edit card statements. He al so contacted the business es where the credit

2 cards had been used an d obtained security foo tage of the transactio ns and related account information. Detectiv e Parker di scovered M r. Smith a nd Ms. Baie r made una uthorized purchases using the victim’s credit cards under accounts assoc iated with Mr. Smith’s alias, Malachi McKea han. Upon completi on of his investigation, Detecti ve Parker determined that Mr. Smith wa s not engaged in any legitimate business. He furt her determined there were fraudulent credit card charges made on the victim’s credit cards, including cash advances made to Ms. Baier’s company. He also learned several cash advances were obtained on the victim’s credit c ards through checks taken f rom the victim’s residence without permission. It was estimated Ms. Baier and Mr. Smith defr auded the victim of approximately $209,346.16 thro ugh fraudulent credit card char ges, unauthorized cash advances, and the theft of cash and tangible items. [¶6] The State ch arged M s. Baier with one count of felony t heft and one count of conspiracy t o com mit t heft. Ulti mately, Ms. Baier entered into a plea agreement with the State. Ms. Baier ag reed to plead no contest to the conspiracy c harge. In exchange, the State agreed to dismi ss the felony theft charge and recommend a deferred prosecution on the conspiracy charge pursuant to Wyoming Statute § 7 -13-301 (2023). Ms. Baier further agreed to testify at any t rial against Mr. Smith a nd to pay reasonable restitution, the amount of which would be dete rmined at a restitution hearing. [¶7] On March 13, 2025, the district court held a r estitution hearing. Th e State called Detective Parker and the victim to testify about Ms. Baier’s and Mr. Smith’s unauthorized cr edit card transactions, cash advances, and the value of th e cash and other items stolen from the victim. Ms. B aier calle d Mr. Smith to testify abou t his busine ss arrangement with the victim and any credit card c harges and cash advances made on the victim’ s credit cards. Mr. Sm ith t estified there were occasio ns when the victim gave him express permission to use her credit cards, including using her credit card to pay for the installation of a concrete floor in her shop. At the conclusion of the hearing, the dist rict court ordered the part ies to submit wr itten closing arguments specifyi ng the restitution amount they each believed wa s appropriate based upon the evidence presented at the hearing. [¶8] In its closing statement, the State request ed th e district court order resti tution for the following amounts: Ca teg ory Total Amount Requested Warranty Deed to victim’s home requested deed to be signed back over to the victim Credit Card Fraud $92,722.7 9 Ca sh $47,000.0 0 Value of other items No res tit uti on r equ este d re gar ding add ition al stole n ite ms Tot al $13 9,722. 79

3 The State requested an y restitution obligation be joint and several with Mr. Smith. The State acknowledged M r. Smith was clearly more culpable th an Ms. Baier for the th eft, but contended Mr. Smith was able to get into a position of trust with the victim to commit the thefts because of the role Ms. Baier played in pretending t o be Mr. Smith’s dau ghter. [¶9] In her closing statement, Ms. Baier stated she was not contesting res titut ion in the amount of $10,125.79 for certain credit card charges. She argued a portion of the remaining credit card charges sh ould not be awarde d as restitution because t he charges had been approved by the victim “for concrete that was poured in her [shop],” and the victim benefited from that pur chase. Ms. Baier furth er claimed some of the charges wer e for t he purchase of tir es for the victim’s truck, and approximately $3,000.00 was already refunded by the victim’s credit card company. With regard to the rema ining charges, Ms. Baier contended the State did not establish the cha rges and cash advances were made by Ms. Baier and wit hout the victim’s permission, and therefore the distri ct court shoul d deny restitution for any remainder of the amount the State request ed. She further argued the State presented no evidence Ms. Baier took cash from the victim. Ms. Baier did not address whether any restitution ordered should be joint and several with Mr. Smith. [¶10] The dist rict court held a sentenc ing hearing on May 15, 2025, and found the State had proven by a prepo nderance of the evidence Ms. Baier and Mr. Smith made fraudulent credit card c harges an d cash adva nces on t he victim’s credit ca rds in the amount of $92,722.79. The distri ct court declined to award restitution for the allegedly stolen cash, concluding the State h ad not presented s ufficient evidence supporting any theft of cash. The district court rejected Ms. Baier’s arguments regarding the concrete work, the tires on the truck, and the alleged $3,000.00 refun d. The district court explaine d it could not de duct any amount for the concrete because the rec ord did not clearly s how the charges on the credit cards were spen t for that purpose. Similarly, the d istrict co urt acknowled ged Mr. Smith may have purchased new tires for the victim’s truck, but Mr. Smith continued to drive the truck and t he condition of the tires was unknown. The district court also found there was no evidence supporting the credit card compan y had refun ded $3,000.00 to the victim. Overall, the d istrict court concl uded, based on the testimony of both Detective Parker and the victim, all the charges on the credit cards were made without the victim’s permission. [¶11] The district court senten ced Ms. Baier to a deferred sentence for conspiracy to commit theft and order ed Ms. Baier to be plac ed on probation fo r a period of three years. The dis trict court ordered as a condition of Ms. Baier’s probation tha t she “take whate ver steps are required to transfer the warranty deed and ownership of the property” back to the victim within 30 da ys. The district court fu rther ordered Ms. Baier to make payments towards restit ution in the total amount of $92, 722.79 to the victi m, j oint and several with Mr. S mith. Ms. Baier t imely appealed the d istrict court’s restituti on award.

4 STANDARD OF RE VIEW [¶12] “ Challenges to the fact ual basis for a restituti on order are reviewed for procedural error or clear abuse of discretion. ” Freeman v. State, 2019 WY 86, ¶ 9, 448 P.3d 194, 19 6 (Wyo. 2019). “When a party challenges a restitution order for sufficiency of the evidence, we review the district court ’s decision for an abuse of discretion.” Duke v. State, 2025 WY 72, ¶ 12, 571 P.3d 3 40, 343 (Wyo. 2025) (q uoting Holliday v. St ate, 2024 WY 139, ¶ 5, 561 P.3d 335, 337 (Wy o. 2024)). Judicial discretion is a c omposite of many things, among whic h are conclusions drawn f rom objective criteria; it means a sound judgment exercised with regard to what is right under the c ircumstances and without doing so arbitrarily or capriciously. A court abuses its dis cretion when it acts in a mann er that exceeds the bounds of reason under the circumstances. Id. (quoting Munguia v. State, 2025 WY 4 3, ¶ 13, 566 P.3d 925, 928 (Wyo. 2025)). [¶13] “ The district court ’ s factual findings on restitution are pre sumptively correct and will not be set aside un less they are clearly err oneous. ” Id. at ¶ 11, 571 P.3d at 343 (citing Kuebel v. State, 2019 WY 75, ¶ 47, 446 P.3d 179, 190 (Wyo. 2019)). “ A finding is clearly erroneous when, althou gh there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm c onviction that a mistake has been committed.” Id. (quoting K uebel, ¶ 48, 446 P.3d at 19 0). ” “Because we give due regard for the district court ’ s opportunity to assess the credibilit y of the witnesses, our review does not entail re- weighing disputed evidence; however, we may examine all of the properly admissibl e evidence in the record.” Id. (quoting K ueb el, ¶ 47, 446 P.3d at 190). “ We view the evi dence in the light most favora ble to the State, affordi ng it the benefit of ever y reasonable inference that can be fairly dra wn and disre garding any conf licting evidence or i nterpretations presented by the defendant. ” Voelker v. State, 2018 WY 72, ¶ 16, 420 P.3d 1098, 1100 (Wyo. 2018) (citing Merkison v. Sta te, 996 P. 2d 1138, 1142 (Wyo. 2 000)). If the distric t court’s decision affords a reasonable ba sis for estimating a victim’s loss, we view the evidence as suf ficie nt to support the district c ourt’s decision. Id. (quoting Smi ley v. State, 2018 WY 50, ¶ 13, 41 7 P.3d 174, 177 (Wyo. 2018)). “[T] he ultima te issue is whether or not the court could reasonably conclude as it did.” Hollid ay, 2024 WY 139, ¶ 5, 5 61 P.3d at 337 (quoting Hilterb rand v. State, 930 P.2d 1248, 1250 (Wyo. 1997)). DISCUSSION [¶14] “ A district court ’ s authority to order restitution is go verned by sta tute. ” Kuebel, 2019 WY 75, ¶ 40, 446 P.3d at 189. Wy oming Statute § 7-9-102 (2023) requires the dis trict court to “ order a def endant to pay restitution to each victim as determined under W.S. 7-9- 103 and 7-9-114 [, ]” “upon conviction for any misdemean or or felony[.]” Wyoming Statute

5 § 7-9-103(b) (2023) sp ecifies “the court shall fix a reasonable amo u n t as restitutio n owed to each victim for actual pecuniary damag e resulting from the defendant ’ s criminal activity [.] ” [¶15] The district court ordered Ms. Baier to pay restitution in t he amount o f $92,722.79, joint and several wit h her co-conspirator, Mr. Smith, for loss es arising from their conspiracy to make una uthorized purchases and cash advance s on the victim’s cred it cards. The amount the d istrict court aw arded is equal to the total amo unt the State requ ested for all credit card charges and cash advances made on the victim’ s credit cards b y Ms. Baier and Mr. Smit h. Ms. B aier argues the district court e rred w hen it or dered restitution for credit card charge s relating to concrete improvements on the victim’s property because the victim received and ret ained a benefit from those charges. She claims the victim’s property was improved by the pouring of a concre te pad, the victim remained in possession a nd contr ol of the improv ed property, and therefore the dist rict court erred in awarding restitution for any credit card charge s or cash advances relat ed to the concrete pad. [¶16] Regarding any credit c ard charges for the co ncrete pad, the district court found: I unde rstand [coun sel’s] arguments in r egards to potentially the concret e work that was done... but I reject those arguments. T here was no evidence.. . . . I can’t... reas onably deduct an amo unt of concrete. It’s not clear in the record t hat the money spent for the concrete off the credit card was spent for that particular purpose, nor the value of it. So I can’t r easonably deduct th at.. . . ... . [T]he evidence as I have [it] is from the credit cards, the credit card reports, and t he in dications from both the detective and [victim] through the detective that those were all charges done by Mr. Smith with out her permission. [¶17] Viewing the evidence in the light most favorable to t he State and making all reasonable inferences that can be r easonably d rawn from it, we concl ude the dis trict court did not clearly err or ab use its discretion when it found it could not reasonably deduct any charges made on the victim’s credit cards for the pouring of a concrete floor in the victim’s shop. T he district cour t ma y award rest itution in reliance on the victim’s testi mony about what cre dit card charges were fraudu lently made. See Duke, 2025 W Y 72, ¶ 15, 5 71 P.3d at 343 (citing Holliday, 2024 WY 139, ¶ 11, 5 61 P.3d at 338). Addit ionally, “[w] hen the

6 defendant does not pre sent contradictory evidence to a victim ’s request for restitution, the court does not err in rel ying on a victim’s estimates of loss.” 24 C.J.S. Criminal Procedure and Rights of Accused § 2499 (Dec. 2025 Update) (citing State v. M cCle lland, 357 P.3d 906, 909 (Mont. 2015)). [¶18] Here, Mr. Smith testifi ed he used several o f t he victim’s credit card s to charge for seven truckloads of co ncrete from Knife Riv er. He further testified he deposited checks the victim had w ritten t o him in Ms. Baier’s bank account and “pull[ed] the money o ut to pay the concrete and construction g uys... working on [the victi m’s] shop.” Mr. Smith testified the total amount for the concrete for the victim’s shop was more than $23,000.00. The victim’s cred it card statements in dicate there wa s only one c ha rge on one of the victim’s several credit cards made to Knife River in the amount o f $1,500. Detective Parker testified this charge was made witho ut the victim’s authorizati on. There is nothing in the record indicating this charge t o Knife River was m ade for th e purpose of pouring concrete in the victim’ s shop. Additionally, t here is nothing in the record supporting a ny of the credit card charges related to the pouring of concrete in the victim’s shop. Ms. B aier has not present ed an y invoices or receipt s s howing the total amount it cost to pour the concrete in the victim’s shop or that such cost was paid for via spe cific charges on the victim’s credit cards. [¶19] Because Ms. Baier has not presented con tradictory evidence to the victim’s reques t for restituti on, the district court cou ld reasona bly conclude as it did, and it did not err in relying on the victim’s estimate of her l oss based on the charges Ms. Baier and Mr. S mith made to he r credit cards. See 24 C.J.S. Criminal Procedure and Rights of Accuse d § 2499 (citing McClellan d, 35 7 P.3d at 909). The district co urt acted within its discretion in declining to deduct credit card charges from the restitutio n award for any amounts purportedly related to t he pouring of the c oncrete floor in the victi m’s shop. CONCLUSION [¶20] The district court did not abuse its discretion i n declining to deduct any amount for the pouring of a concre te floor on the victim’s property. The rec ord contains no evidence showing the credit card charges included in the restitution amount were made for the particular purpose of pouring the concrete flo or in the victim’s shop. We affirm the district court’s order awarding restitution in the amount of $92,722.79.