Opinion
No. 62463-6-I.
November 23, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-07002-4, John P. Erlick, J., entered September 19, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Becker and Ellington, JJ.
Patricia Davenport pleaded guilty to fourth degree assault, and the trial court ordered $71,988.89 in restitution to her victim. Davenport challenges the restitution order, contending it is not statutorily authorized. She argues the award constitutes restitution for an uncharged crime — second degree assault — to which she did not plead guilty. But we conclude the restitution order is properly based on the facts underlying her crime. Because the court acted within its authority, we affirm.
FACTS
The State charged Davenport with third degree assault, alleging that on October 3, 2006, she repeatedly punched a nurse who was treating her at a jail medical facility. Ultimately, Davenport agreed to enter an Alford plea to an amended charge of fourth degree assault. She stipulated that the facts set forth in the certification for determination of probable cause were real and material facts for purposes of sentencing. In the plea agreement, she also agreed to pay restitution to the victim.
"A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree: . . . [a]ssaults a nurse, physician, or health care provider who was performing his or her nursing or health care duties at the time of the assault." RCW 9A.36.031(1)(i).
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
"A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another." RCW 9A.36.041(1).
According to the certification, Davenport was incarcerated in the King County jail on the day of the incident. For unknown reasons, she was taken to the jail infirmary. When Pamela Erhardt, a nurse at the facility, attempted to take Davenport's blood pressure, Davenport hit her four to six times in the chest and stomach area with a closed fist. Erhardt fell into a piece of medical equipment and then into the edge of an exam table. Afterwards, Erhardt complained of an achy, burning sensation in her neck and shoulders and chest pain. In the months following the incident, she missed work and underwent physical therapy, MRI (magnetic resonance imaging) testing, and shoulder surgery.
After reviewing the certification, the trial court found Davenport guilty of the amended charge of fourth degree assault. It imposed a 12-month suspended sentence with one-day credit for time served, no probation, $500 victim penalty assessment, restitution to be determined at a future date, and no contact with Erhardt.
The State subsequently requested $71,988.89 in restitution based on Erhardt's medical bills and lost wages. Davenport's counsel argued that the State failed to show a causal connection between the assault and Erhardt's damages. Based on a review of the medical records, however, the court imposed the requested amount. In a written order, the court explained,
The State has provided expert medical evidence through the evaluation and report of Dr. James Kopp that Ms. Erhardt's injuries and treatments were causally related to the October 3, 2006 assault for which Ms. Davenport was convicted. The conclusions are further supported by the medical notes and records of treating physician Dr. Richard Martin and the other records. I appreciate that there are differences of opinion on reading these notes and the defense has argued inconsistencies in the conclusions regarding the required causal relationship. Nonetheless, applying the preponderance standard, and given the absence of controverting expert testimony, this Court has reached the conclusion that the State has carried its burden of showing that the injuries and resulting treatment were more likely than not caused by the October incident. Accordingly, I award restitution in the amount of $71,988.89.
ANALYSIS
Davenport's sole contention on appeal is that the trial court's restitution order is not statutorily authorized. "`The decision to impose restitution and the amount thereof are within the trial court's discretion.'" State v. Woods, 90 Wn. App. 904, 906, 953 P.2d 834 (1998) (quoting State v. Hunotte, 69 Wn. App. 670, 674, 851 P.2d 694 (1993)). A restitution order will be reversed only if the trial court exercised its discretion on untenable grounds or for untenable reasons or if the order is manifestly unreasonable. Woods, 90 Wn. App at 906. However, if the court exceeds its statutory authority in ordering restitution, it abuses its discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
A court's authority to order restitution is derived solely from statute. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). For felonies, "[r]estitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person . . . unless extraordinary circumstances exist. . . ." RCW 9.94A.753(5). For misdemeanors, a court may order a defendant "to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question. . . ." RCW 9.92.060(2); RCW 9.95.210(2)(b).
Here, RCW 9.92.060(2) is the governing statute because Davenport received a suspended sentence. Davenport argues that there are greater restrictions on restitution in misdemeanor cases than in felony cases, but she cites no cases to support this proposition. In any event, the issue here is whether RCW 9.92.060(2) authorized the restitution award.
Restitution is limited to losses that are causally related to the defendant's crime. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d (2005). A causal connection exists when, "but for" the offense committed, the loss would not have been incurred. State v. Blair, 56 Wn. App. 209, 216, 783 P.2d 102 (1989). It is the State's burden to prove the causal relationship by a preponderance of the evidence. State v. Kinneman, 122 Wn. App. 850, 860, 95 P.3d 1277 (2004), aff'd, 155 Wn.2d 272, 119 P.3d (2005). In addition, restitution must be for the crime in question, not some other, uncharged crime. State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993).
There is an exception when the defendant expressly agrees to pay restitution for another crime, but both parties agree the exception does not apply in this case.
Here, Davenport does not assign error to the court's determination that the losses were causally connected to the October 3, 2006 incident. Instead, she argues that the restitution order is not statutorily authorized because it constitutes restitution for an uncharged crime (second degree assault) rather than the crime she pleaded guilty to (fourth degree assault). She argues that the large amount of the award indicates the restitution is for "substantial bodily harm" — an element of second degree assault — and that she "did not plead guilty to assault that caused injury of that degree." Appellant's Opening Br. at 13-14. She further notes that part of the definition for fourth degree assault is that it be committed "under circumstances not amounting to assault in the first, second, or third degree, or custodial assault." RCW 9A.36.041(1). Thus, she contends, restitution for "substantial bodily harm" is inconsistent with restitution for fourth degree assault, and because she was convicted of fourth degree assault, the restitution awarded here is improper.
But it is well established that when courts impose restitution, they look to "the underlying facts of the charged offense, not the name of the crime." State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359 (1992); see also State v. Hiett, 154 Wn.2d 560, 564, 115 P.3d 274 (2005) (noting that courts look "not only to the abstract elements of the crime but also the defendants' actual conduct"). Landrum is illustrative. There, the defendant was initially charged with first degree child molestation, but later entered an Alford plea to fourth degree assault. Landrum, 66 Wn. App. at 794. On appeal, he argued that the restitution order, which required him to pay for sexual assault counseling, was for a different crime than the one he pleaded guilty to. Landrum, 66 Wn. App. at 799. The court rejected this argument because "the facts underlying the charged offense establish[ed] that a sexual assault occurred" and the trial "court was not precluded from imposing restitution for damages caused by the defendants' criminal acts simply because the prosecutor could have proceeded to trial on the greater offense or charged additional offenses on the basis of the facts alleged." Landrum, 66 Wn. App. at 800.
Davenport relies on State v. Miszak, 69 Wn. App. 426, 848 P.2d 1329 (1993), which holds that "[r]estitution cannot be imposed based on the defendant's `general scheme' or acts `connected with' the crime charged, when those acts are not part of the charge." Miszak, 69 Wn. App. at 428 (quoting State v. Harrington, 56 Wn. App. 176, 179, 782 P.2d 1101 (1989)). But Miszak is distinguishable. The defendant in that case pleaded guilty to a single count of attempted theft occurring on a single day, but he was ordered to pay restitution for 13 items allegedly stolen over a period of months. Miszak, 69 Wn. App. at 428. On appeal, the court held it was error to order restitution based on these separate, uncharged incidents. Miszak, 69 Wn. App. at 429. Here, in contrast, the restitution was not imposed based on a "general scheme" or acts "connected with" the assault. The charge arose from a single incident, and the restitution was imposed based on acts stipulated to as part of the plea agreement — the same acts for which the court found Davenport guilty of fourth degree assault. The fact that Davenport pleaded guilty to fourth degree assault rather than some other degree of assault does not change the nature of the underlying crime in question.
Davenport also cites State v. Ashley, 40 Wn. App. 877, 700 P.2d 1207 (1985), but that case also involved restitution erroneously awarded for a separate uncharged incident.
Davenport also relies on State v. Taylor, 86 Wn. App. 442, 936 P.2d 1218 (1997), a prosecution for first degree welfare fraud. The jury convicted Taylor of the lesser included offense of second degree welfare fraud for fraudulently receiving between $250 and $1,500 in benefits. Taylor, 86 Wn. App. at 444. But he was ordered to pay $9,074 in restitution, the total amount he received in welfare checks and food stamps. Taylor, 86 Wn. App. at 445. On appeal, the court reversed because the jury's verdict suggested that Taylor was eligible for some of the benefits he received, so the record did not establish that his offense caused the State to lose the amount of restitution ordered. Taylor, 86 Wn. App. at 446. At the same time, the court emphasized, "[I]t is well established that the amount of restitution may exceed the dollar limitations of the crime of conviction when the damage that results from the underlying criminal act is greater than the statutory amount." Taylor, 86 Wn. App. at 444. Thus, the restitution order was reversed because the State failed to demonstrate that Taylor's underlying criminal acts caused $9,074 in losses, not because restitution was imposed for a different crime than the crime of conviction.
Here, the State succeeded in showing that the underlying criminal actions by Davenport — several punches to Erhardt's stomach and chest area — caused $71,988.89 in damages. Because the trial court properly considered the underlying facts and found a causal connection between Erhardt's losses and "the crime in question," it did not exceed its statutory authority.
For the foregoing reasons, we affirm.
WE CONCUR: