               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 112,572

                                      STATE OF KANSAS,
                                          Appellee,

                                               v.

                                      TAYLOR ARNETT,
                                         Appellant.


                               SYLLABUS BY THE COURT

1.
       An issue not briefed by an appellant is deemed waived and abandoned.


2.
       We do not consider issues that a party raises for the first time in a letter filed under
Supreme Court Rule 6.09(b) (2018 Kan. S. Ct. R. 39).


3.
       When considering a restitution order, we review a district court's factual findings
relating to the causal link between the crime committed and the victim's loss for
substantial competent evidence. Our review of a legal conclusion regarding the
interpretation of the restitution statute is de novo.


4.
       When interpreting a statute, we give effect to its plain and unambiguous language.
We will not read into the statute words not readily found there. If the language of the
statute is unclear or ambiguous, we turn to canons of statutory construction, consult


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legislative history, or consider other background information to ascertain the statute's
meaning.


5.
        To establish that one thing proximately caused another, a party must prove two
elements: cause-in-fact and legal causation. Generally, causation-in-fact requires proof
that it is more likely than not that, but for the defendant's conduct, the result would not
have occurred. Legal cause limits the defendant's liability even when his or her conduct
was the cause-in-fact of a result by requiring that the defendant is only liable when it was
foreseeable that the defendant's conduct might have created a risk of the harm and the
result of that conduct and any contributing causes were foreseeable.


6.
        When causation is based on a chain of events, an intervening cause may absolve
the defendant of liability. If the intervening cause is foreseen or might reasonably have
been foreseen by the defendant, his or her conduct may still be considered to have
proximately caused the result.


7.
        The causal link between a defendant's crime and the restitution damages for which
the defendant is held liable must satisfy the traditional elements of proximate cause:
cause-in-fact and legal causation.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 6,
2015. Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed March 23,
2018. Judgment of the Court of Appeals vacating the district court's order of restitution is reversed. The
case is remanded to the Court of Appeals with directions.




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        Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.


        Ethan Zipf-Sigler, assistant district attorney, argued the cause, and Alan T. Fogleman, assistant
district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.


The opinion of the court was delivered by


        ROSEN, J.: The State appeals the Court of Appeals' decision vacating the district
court's order of restitution. We reverse the Court of Appeals and remand the case to the
Court of Appeals for further review consistent with this opinion.


                           FACTUAL AND PROCEDURAL BACKGROUND

        On January 8, 2013, Taylor Arnett lent her mother's car to Joseph Stroble and
Brandon Bryant so the two could break into houses. Allegedly, Stroble and Bryant then
burglarized two different houses, damaging one in the process, and stole over $50,000
worth of property. Stroble returned the car to Arnett later that evening and gave her $200.


        Arnett pleaded guilty to conspiracy to commit burglary, and the State agreed not to
charge her with any other offenses. The district court sentenced Arnett to 5 months'
imprisonment, suspended the imposition of her prison sentence, and placed her on 12
months of supervised probation.


        The district court held a separate hearing on restitution. The State sought
$33,248.83 in restitution—$31,646.66 for property loss from the thefts, $402.17 for "out-
of-pocket expense[s]" of one of the homeowners, and $1,200 for damage to one of the
homes as a result of the burglary. Arnett argued that she should only be ordered to pay

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$200—the amount she received from Stroble. The district court disagreed with Arnett
and ordered the restitution requested by the State, holding Arnett jointly and severally
liable with Stroble and Bryant for the full amount.


         Arnett appealed the restitution order to the Court of Appeals, arguing that
restitution violates Section 5 of the Kansas Constitution Bill of Rights, that restitution
violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000), and that the State failed to submit evidence to support the amount of restitution
ordered. The Court of Appeals considered Arnett's original argument to the district
court—that she was not liable for the entire restitution amount—and decided the case on
that issue. State v. Arnett, No. 112,572, 2015 WL 6835244 (Kan. App. 2015)
(unpublished opinion). The panel held that the district court erred in ordering Arnett to
pay restitution because her crime of conspiracy to commit burglary did not cause the
damages. The panel reversed and vacated the order of restitution. 2015 WL 6835244,
at *2.


         We granted the State's petition for review.


                                          ANALYSIS


         The State contends that Arnett failed to preserve this issue for review because she
did not present it in the district court or in her appellate brief. The State asserts that Arnett
addressed this issue for the first time in a letter to the Court of Appeals filed under
Supreme Court Rule 6.09(b) (2018 Kan. S. Ct. R. 39). Alternatively, the State argues that
the Court of Appeals misinterpreted the restitution statute when it concluded that the
crime of conspiracy to commit burglary does not cause any damages that result from the
corresponding crimes of burglary, theft, or criminal damage to property. We address the
State's preservation argument first.
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Preservation


       "An issue not briefed by an appellant is deemed waived and abandoned." State v.
Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). We do not consider issues that a party
raises for the first time in a Rule 6.09(b) letter. State v. Tague, 296 Kan. 993, 1010, 298
P.3d 273 (2013).


       At the restitution hearing, the State asserted that the parties agreed upon the
amounts the State was seeking for restitution. Arnett did not disagree with this. Instead,
she argued that she should only be ordered to pay restitution "commensurate with her
level of involvement." Because she was unaware of the specific details surrounding the
burglaries, like how many would occur and where, Arnett argued that she should be held
responsible for only the $200 that she received.


       The district court ruled that Arnett was liable for the entire amount of restitution
because the applicable statute authorized the court to order restitution for the damages
caused by Arnett's crimes, and Arnett had aided and abetted the crimes that resulted in
the damages when she provided the vehicle.


       On appeal, Arnett abandoned this argument. While she still challenged the
restitution order, she argued that the Court of Appeals should vacate the order for three
reasons: (1) the imposition of restitution violates Section 5 of the Kansas Constitution;
(2) the imposition of restitution violates the Apprendi rule; and (3) the State failed to
present evidence that the crimes associated with the conspiracy caused $33,248.83 in
damages.




                                              5
         After both parties submitted their appellate briefs, but before oral argument, Arnett
submitted a Rule 6.09(b) letter to the Court of Appeals citing State v. Miller, 51 Kan.
App. 2d 869, 355 P.3d 716 (2015). In that letter, Arnett asserted that Miller supplemented
and supported her third issue regarding the amount of restitution because the Miller panel
held: "When a defendant is convicted for burglary, restitution cannot be awarded for the
loss of items stolen during the burglary when the defendant was not convicted for the
theft of those items, unless the defendant agrees to the restitution." 51 Kan. App. 2d 869,
Syl. ¶ 2.


         The argument Arnett presented in her Rule 6.09(b) letter is different from the third
argument presented in the appellate brief. In her brief, Arnett takes issue with the lack of
evidence supporting the valuation of damages. In her Rule 6.09(b) letter, Arnett
insinuates a legal argument that a person convicted of conspiracy to commit burglary
cannot be held liable for losses or damages resulting from any burglaries or thefts that
occur.


         Nonetheless, the Court of Appeals addressed the argument raised in the Rule
6.09(b) letter and ultimately decided the case on that issue without considering the issues
Arnett presented in her brief. Arnett, 2015 WL 6835244.


         We conclude that Arnett abandoned any argument regarding whether her crime of
conspiracy caused the alleged damages, and, therefore, the panel's consideration of this
issue was more generous than strictly necessary when it decided the determinative merit
of the issue. Even if Arnett's arguments in the district court adequately preserved the
issue, her failure to brief the issue in the Court of Appeals would have precluded
appellate review. See City of Roeland Park v. Jasan Trust, 281 Kan. 668, 673, 132 P.3d
943 (2006); McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146
(2005). To the extent that Arnett addressed the issue in her Rule 6.09(b) letter, that did
                                               6
not resurrect the issue for appeal because, as we explained in Tague, "Rule 6.09(b) letters
are reserved for citing significant relevant authorities not previously cited which come to
a party's attention after briefing. . . . [A]n appellate court will not consider new issues
raised for the first time in a party's Rule 6.09(b) letter." 296 Kan. at 1010-11.


       Despite the abandonment of the issue, we will consider this issue's merits. In State
v. Bell, 258 Kan. 123, 899 P.2d 1000 (1995), we faced an analogous scenario when the
Court of Appeals considered an issue that the parties had not argued. There, we reiterated
the general rule that an appellate court will not consider an issue not raised in the trial
court. 258 Kan. at 126. We explained that the rule prevents an appellate court from
considering an issue sua sponte because the parties will not have had the opportunity to
brief the issue or present their arguments to the appellate court. 258 Kan. at 126-27.
However, we concluded that we had the authority in that case to review an issue the
Court of Appeals considered sua sponte because we granted the petition for review and
the parties had submitted supplemental briefs to this court. 258 Kan. at 127.


       As in Bell, the parties have had an opportunity to present their arguments to this
court. The State briefed the issue in its Petition for Review, which we granted, and both
parties addressed the issue at oral argument. Therefore, we move forward to the merits.


Does K.S.A. 2016 Supp. 21-6607(c) support the restitution order?


       The State argues that the Court of Appeals misinterpreted the restitution statute
when it concluded that K.S.A. 2014 Supp. 21-6607(c) did not support the restitution
order because there was no causal connection between Arnett's crime and the damages.


       Generally, "'[a] district court's factual findings relating to the causal link between
the crime committed and the victim's loss'" are reviewed for substantial competent
                                               7
evidence. State v. Holt, 305 Kan. 839, 842, 390 P.3d 1 (2017) (quoting State v. Shank,
304 Kan. 89, 93, 369 P.3d 322 [2016]). Our review of the panel's legal conclusion
regarding the interpretation of the restitution statute is de novo. See Gannon v. State, 303
Kan. 682, 700, 368 P.3d 1024 (2016).


         When interpreting a statute, we must give effect to its plain and unambiguous
language. We will not read into the statute words not readily found there. If the language
of the statute is unclear or ambiguous, we turn to canons of statutory construction, consult
legislative history, or consider other background information to ascertain the statute's
meaning. Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).


         K.S.A. 2016 Supp. 21-6607(c)(2) addresses restitution orders that are imposed as a
term of probation. It provides that "the court shall order the defendant to . . . make
reparation or restitution to the aggrieved party for the damage or loss caused by the
defendant's crime . . . ." (Emphasis added.)


         The Court of Appeals panel concluded that Arnett could not be held liable for the
damages alleged in this case because they were a result of burglary, theft, and criminal
damage to property, and Arnett was not convicted of those crimes. In its analysis, the
panel reasoned that Arnett's crime of conspiracy "did not directly cause the actual
burglaries, thefts, or damage to property." (Emphasis added.) Arnett, 2015 WL 6835244,
at *2.


         We conclude the panel misinterpreted the restitution statute when it read into its
meaning a requirement that the crime of conviction have a direct causal link to any
damages. As we said in State v. Hand, 297 Kan. 734, 739, 304 P.3d 1234 (2013), the
restitution "statute's reference to damage or loss 'caused by' a defendant's crime is not
modified by the adverb 'directly.'" We reiterated this observation in State v. Hall, 298
                                               8
Kan. 978, 990, 319 P.3d 506 (2014), when we explained that, "[a]lthough not all
tangential costs incurred as a result of a crime should be the subject of restitution, . . .
there is no requirement that the damage or loss be 'directly' caused by the defendant's
crime."


       Although we disagree with the panel's narrow interpretation, we agree that there
must be some limit to the defendant's liability. If there is none, a defendant may be held
financially liable for remote and minimally related damages. Because we must construe a
statute to avoid unreasonable or absurd results, we will not read this meaning into the
Legislature's words. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 918, 296 P.3d 1106 (2013).


       The extent to which a defendant's responsibility for restitution should be limited is
a more elusive notion; there is no legislative history that assists us in knowing how far
down a chain of causation a defendant's liability should extend. However, this court has
considered liability based on a theory of causation in other contexts many times. Because
our lawmakers adopted the restitution statute against this backdrop, we find the caselaw
informative. See Paroline v. United States, 572 U.S.__, 134 S. Ct. 1710, 1721, 188 L. Ed.
2d 714 (2014) (considering the legal tradition against which Congress legislated when
interpreting a statute).


       In both the criminal and civil context, we routinely require a showing of causation
to demonstrate that one thing was the proximate cause of another. See, e.g., Puckett v. Mt.
Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010) (plaintiff must
show health care provider proximately caused injury in medical malpractice claim); State
v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007) (under involuntary manslaughter
statute, State must prove defendant's behavior proximately caused victim's death). To
establish that one thing proximately caused another, a party must prove two elements:
                                               9
cause-in-fact and legal causation. Together, these elements limit a defendant's liability to
"'those consequences that are probable according to ordinary and usual experience.'"
Puckett, 290 Kan. at 420.


       Generally, causation-in-fact requires proof that it is more likely than not that, but
for the defendant's conduct, the result would not have occurred. Puckett, 290 Kan. at 420.


       Legal cause limits the defendant's liability even when his or her conduct was the
cause-in-fact of a result by requiring that the defendant is only liable when it was
foreseeable that the defendant's conduct might have created a risk of harm and the result
of that conduct and any contributing causes were foreseeable. When causation is based on
a chain of events, an intervening cause may absolve the defendant of liability. However,
"[i]f the intervening cause is foreseen or might reasonably have been foreseen" by the
defendant, his or her conduct may still be considered to have proximately caused the
result. Puckett, 290 Kan. at 421.


       While we have not explicitly embraced proximate cause when considering
restitution, we have implicitly done so. As we noted earlier, in Hall and Hand, we held
that the restitution statute does not require that loss be "'directly'" caused by the
defendant's crime. Hall, 298 Kan. at 990; Hand, 297 Kan. at 739. And in State v. Alcala,
301 Kan. 832, 839, 348 P.3d 570 (2015), we concluded that substantial competent
evidence supported the district court's restitution order when the defendant's actions "set
in motion a foreseeable chain reaction" that led to the damages.


       Today, we explicitly conclude that the causal link between a defendant's crime and
the restitution damages for which the defendant is held liable must satisfy the traditional
elements of proximate cause: cause-in-fact and legal causation. We reverse the Court of


                                              10
Appeals decision holding that the restitution statute requires a direct causal connection
between the crime and the damages.


       We would be inclined to remand this case to the district court for reconsideration
under the proper legal standard. However, it is clear from the record that the district court
utilized this standard in its analysis.


       The district court did not explicitly declare Arnett's crime to have been the cause-
in-fact and the legal cause of the alleged damages. But, when ruling from the bench, the
district court judge said:


       "I understand from the proffer and from the affidavit that the allegations were that the
       defendant allowed a Defendant Stroble to use her car to commit the crimes; that she knew
       what they were going to do; and that by providing them a vehicle, she aided and abetted
       them in the commission of that crime. She entered into a conspiracy, and that's the crime
       that she pled to. Without that vehicle, they would not have been able to commit the
       crimes."


       From this language, it is apparent to us that the district court concluded that, but
for Arnett's crime, the subsequent crimes which resulted in the damages would not have
occurred and that the resulting damages were a foreseeable result of Arnett's criminal
actions.


       Arnett did not challenge this factual determination on appeal. And because the
Court of Appeals concluded, as a matter of law, that conspiracy to commit burglary does
not cause damages that result from a corresponding burglary, theft, or criminal damage to
property, it did not consider whether the facts showed a causal connection in this case. As
a result, we do not reconsider the district court's factual conclusions.


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       Because the Court of Appeals decided that the statute did not support the
restitution order, it did not address the arguments presented in Arnett's brief: that
restitution violates Section 5 of the Kansas Constitution and is contrary to Apprendi,
530 U.S. 466, and that the State failed to submit evidence to support the valuation of the
damages. Our decision to reverse the Court of Appeals leaves the resolution of these
issues and Arnett's appeal undecided. Therefore, we remand the case to the Court of
Appeals to consider these issues.


       The Court of Appeals decision holding that conspiracy to commit burglary does
not legally cause damages that result from a corresponding burglary, theft, or criminal
damage to property and vacating the order of restitution is reversed. The case is
remanded to the Court of Appeals for consideration of the issues that Arnett presented in
her brief to the Court of Appeals.




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