Opinion
No. 22840-1-III
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-8-01470-9. Judgment or order under review. Date filed: 02/24/2004. Judge signing: Hon. Ellen Kalama Clark.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Vernon M. Ingersoll, a juvenile, was convicted of residential burglary and third degree malicious mischief. He was sentenced to seven months of probation, 15 hours of community service, a $100 fine, and one day in detention with credit for one day served. He was ordered to pay restitution of $3,101.80 jointly and severally with his juvenile codefendant, Cameron Dean. Contending his statements to law enforcement were inadmissible because he did not receive Miranda warnings before questioning and the trial court erroneously imposed restitution that exceeded his participation in the crimes, he appeals. We affirm.
On Oct. 20, 2003, two neighbors heard and saw glass breaking at a vacant rental house next door. They saw two boys run out. One of the neighbors called police. They watched the boys while waiting. At one point the boys started to return to the rental house and one neighbor said she told them police had been called. The boys ran away again.
Deputy Mark Melville responded. The two neighbors, mother and daughter, told the deputy they knew one of the boys as their next-door neighbor. Deputy Melville already knew that boy's name, Cameron Dean. The neighbors told the deputy the two boys went to a trailer at the end of the block. Deputy Melville recognized from the description of the trailer it was Mr. Ingersoll's home. He drove his squad car up to the trailer and found Mr. Dean and Mr. Ingersoll there with a third boy in the front yard.
The deputy approached the boys and asked whether they were at the house earlier. According to the deputy, Mr. Ingersoll, 17, acknowledged he and Mr. Dean were there earlier. On the other hand, Mr. Ingersoll said he never told any law enforcement officers he was at the rental house, but instead told them he was at his friend's house. Deputy Melville asked Mr. Dean and Mr. Ingersoll if they had gone in the rental house. Mr. Ingersoll said yes. Deputy Melville asked them if they would go with him to the rental house. They agreed.
Deputy Melville drove them about three quarters of a block to the rental house. The deputy and the boys got out of the squad car. Deputy Melville asked them to come with him to the back yard. The boys followed. The two neighbors, who saw the boys earlier at the rental house, and a second uniformed deputy were in the back yard. The neighbors identified the two boys. Mr. Ingersoll apparently stood there in the back yard. Deputy Melville did not immediately return to him to begin questioning again. Mr. Ingersoll remained there while Deputy Melville conducted additional interviews. Nine to ten minutes went by. Deputy Melville talked to the other deputy, the two neighbors, and Mr. Dean. Mr. Dean's mother arrived. The rental house's owner also arrived.
After the interviews, Deputy Melville approached Mr. Ingersoll and questioned him again about what had happened at the rental house earlier in the day. Mr. Ingersoll replied he and Mr. Dean went in the rental house to look at broken windows and they `broke out some other glass in there.' Verbatim Report of Proceedings (Jan. 20, 2004) (VRP) at 85. Deputy Melville then asked Mr. Ingersoll to tell him what happened when they went in. He said they broke the windows. Deputy Melville interpreted that statement to mean they broke all the windows. He arrested Mr. Ingersoll but did not give him Miranda warnings at any point. Upon arresting Mr. Ingersoll, Deputy Melville stopped questioning him.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mr. Ingersoll was tried as a juvenile on charges of residential burglary and first degree malicious mischief. At the CrR 3.5 hearing, Mr. Ingersoll argued his statements to Deputy Melville were inadmissible because he was in law enforcement custody during questioning and was not given his Miranda warnings. The trial court held Mr. Ingersoll was not in custody for four reasons: Deputy Melville did not tell Mr. Ingersoll he could not leave; Mr. Ingersoll agreed to go with Deputy Melville to the rental house; Mr. Ingersoll's trip in the squad car was brief; and Mr. Ingersoll was not handcuffed.
The trial court found Mr. Ingersoll guilty of residential burglary and third degree malicious mischief. The State sought to convict him of first degree malicious mischief and argued more than $1,500 damage was done to the windows of the rental house. The trial court lowered the charge to third degree malicious mischief because the only damage estimate the trial court had before it was $150 for the bedroom windows.
On February 24, 2004, the court sentenced Mr. Ingersoll to seven months of probation, 15 hours of community service, a $100 fine, and one day in detention with credit for one day served. The court also ordered Mr. Ingersoll to pay $3,101.80 to the rental house owner and her insurance company. The trial court held Mr. Ingersoll and Mr. Dean jointly and severally liable for the restitution.
Mr. Ingersoll first contends law enforcement placed him in custody and questioned him without first giving him Miranda warnings. Appellate courts review a trial court's custodial determination de novo. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). When a suspect is in police custody, police must give Miranda warnings before interrogating him. State v. France, 121 Wn. App. 394, 399, 88 P.3d 1003 (2004) (citing State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002)). Failure to do so renders the suspect's statement presumably involuntary. State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004) (citing State v. Sargent, 111 Wn.2d 641, 647-48, 762 P.2d 1127 (1988)). The statements may be inadmissible at trial. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986) (citing Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)), cert. denied, 480 U.S. 940 (1987).
A suspect is in custody if a reasonable person in the suspect's circumstances would feel his movements were restricted to a degree associated with `formal arrest.' Lorenz, 152 Wn.2d at 36-37 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). A coercive environment is not necessarily custody. Sargent, 111 Wn.2d at 649 (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977)). The test is not whether a reasonable person would feel free to leave. State v. Ferguson, 76 Wn. App. 560, 566, 886 P.2d 1164 (1995) (citing 1 Wayne R. LaFave Jerold H. Israel, Criminal Procedure sec. 6.6, at 105 (Supp. 1991)). Formal arrest occurs when police restrain a suspect's movements by a `show of authority.' State v. Griffith, 61 Wn. App. 35, 40, 808 P.2d 1171, review denied, 117 Wn.2d 1009 (1991).
When Deputy Melville pulled up to the front yard of Mr. Ingersoll's home in his squad car and approached him, Mr. Dean, and the third boy, the questioning lasted for two minutes. It took place in the front yard. The record does not show that Deputy Melville handcuffed or searched Mr. Ingersoll or Mr. Dean. A reasonable person would not feel Mr. Ingersoll's freedom was restricted to a degree associated with formal arrest. He was not in custody in his front yard.
Mr. Ingersoll also claims he was in custody in the squad car. Placement in a squad car is sometimes evidence of custody, but not always. For example, a man was not in custody where police put him in a squad car without handcuffing or frisking him and police allowed him to use his cell phone in the back seat. State v. Radka, 120 Wn. App. 43, 50, 83 P.3d 1038 (2004). Here, Deputy Melville opened and closed the doors of his squad car as the boys got in and out of the car. The deputy also put the boys in the back seat. He did not offer to have either one sit in the front passenger seat. Though Deputy Melville testified Mr. Ingersoll voluntarily agreed to go with him to the rental house, suspects who voluntarily agree to a police request to go somewhere may nevertheless be in custody. State v. Rose, 17 Wn. App. 801, 803, 565 P.2d 1206 (1977). But Mr. Ingersoll's ride in the squad car was brief — only three quarters of a block. Moreover, he was not in handcuffs. A reasonable person would not feel his movements restricted to a degree associated with formal arrest.
Mr. Ingersoll further contends he was in custody behind the rental house after the squad car arrived. When the squad car pulled up to the rental house, Deputy Melville got out and opened the car's rear doors. The boys got out. Deputy Melville asked them to go with him to the back yard. They did. Two witnesses and a second uniformed deputy were in the back yard. The witnesses identified them. The record does not indicate whether Deputy Melville mentioned that witnesses would be in the back yard. Before the second round of questioning, Mr. Ingersoll spent about 15 to 20 minutes in the presence of law enforcement. During part of that span of time, he rode in a squad car, arrived at a crime scene, and was identified by two witnesses. A reasonable person in Mr. Ingersoll's situation could feel he would be stopped if he tried to leave or would at least look suspicious if he did.
But the test is not whether a reasonable person would feel free to leave. Ferguson, 76 Wn. App. at 566. The test is whether a reasonable person would feel his movements restricted to a degree associated with formal arrest. Id. The record does not show Mr. Ingersoll was handcuffed, searched, or told where to stand at any point. After being identified by the witnesses, Mr. Ingersoll apparently stood in the back yard while Deputy Melville conducted additional interviews. Nine to 10 minutes went by as Mr. Ingersoll stood there. After the deputy finished his interviews, he questioned Mr. Ingersoll. In these circumstances, a reasonable person would not have felt that his movements were restricted to a degree associated with formal arrest. None of the situations where Mr. Ingersoll found himself, even in totality, limited his movements to that degree. Mr. Ingersoll suggests the court should consider his youthful age in determining whether he was in custody. Courts are mixed on this issue. Our Supreme Court expressly declined to determine whether age could ever be a factor in the custody test. Heritage, 152 Wn.2d at 219. The U.S. Supreme Court held youth does not have to be considered. Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 2151, 158 L. Ed. 2d 938 (2004). The U.S. Supreme Court said custody is an objective test designed to give clear guidance to the police, and consideration of a suspect's individual characteristics, such as his age, could be viewed as creating a subjective test. Id. at 2151-52.
When he was arrested at the rental house, Mr. Ingersoll was 17-1/2 and close to the age of majority. In these circumstances, we will not consider Mr. Ingersoll's youth to determine whether he was in custody. Id. at 2151. Mr. Ingersoll contends the court's order of restitution improperly exceeded his participation in the crimes. Upon Mr. Ingersoll's conviction of residential burglary and third degree malicious mischief, the court lowered the malicious mischief charge from first degree to third degree because the only damage estimate was $150 for the bedroom windows. Later a different judge ordered Mr. Ingersoll to pay $3,101.80 in restitution jointly and severally with Mr. Dean to the rental house owner and her insurance company. Beyond the two broken windows comprising the third degree malicious mischief conviction, the damage to the rental house was extensive. Deputies found nearly all the windows broken in it. The living room ceiling fan's blades were pointing down toward the floor. Still-wet paint covered part of the carpet. A living room table was broken. During the restitution hearing, the court said Mr. Ingersoll should share restitution with Mr. Dean because they were codefendants and Mr. Dean was found `responsible for the full amount.' VRP (Feb. 24, 2004) at 26. Appellate courts ask whether a trial court abused its discretion in ordering restitution. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). A trial court abuses its discretion if it orders a defendant to pay restitution on manifestly unreasonable grounds. Id.
Juvenile offenders must pay restitution to their victims. RCW 13.40.190(1). Juvenile offenders must be held jointly and severally responsible for the restitution if the crimes that resulted in the damage or loss to the victims involved other participants. Id. Restitution is for damage that results from `the offense committed.' Id.
Cases are not uniform on whether restitution can exceed a juvenile's crimes. Courts construe the juvenile restitution provisions liberally to compensate victims and hold juveniles accountable. State v. Donahoe, 105 Wn. App. 97, 100, 18 P.3d 618 (2001) (citing State v. Sanchez, 73 Wn. App. 486, 489, 869 P.2d 1133 (1994)). One court said the definition of a crime for which a juvenile is convicted does not limit the amount of restitution a court can impose. State v. Selland, 54 Wn. App. 122, 123-25, 772 P.2d 534, review denied, 113 Wn.2d 1011 (1989). For example, the court upheld restitution of $550 against a juvenile convicted of third degree malicious mischief, although the restitution exceeded the $250 statutory ceiling for the charge. Id. In an adult case involving a similar restitution statute, restitution was proper to compensate a couple whose coin collection was stolen. State v. Mead, 67 Wn. App. 486, 490-91, 836 P.2d 257 (1992).
Though the State never proved the defendant possessed the coins, the defendant possessed broken pieces of the coin display case. Id. at 491. The court said it reasonably inferred the defendant's possession of the display case fragments resulted in the couple's coin loss. Id. Other cases say restitution cannot exceed a juvenile's crimes. They focus on whether a strong link exists between the crimes and the damage. Restitution must be causally linked to the juvenile's charged and proven crimes. State v. Keigan C., 120 Wn. App. 604, 607, 86 P.3d 798 (2004), review granted sub nom., State v. Hiett, 153 Wn.2d 1001 (2005). A juvenile who was involved in two assaults in one night, but was only convicted of the second assault, could not be made to pay restitution for the first assault. State v. Ashley, 40 Wn. App. 877, 878-79, 700 P.2d 1207 (1985). Restitution is limited to the precise offense charged. Id. Courts ask whether, but for the proven offense, the damages would have occurred. Keigan C., 120 Wn. App. at 608.
Mr. Ingersoll argues the trial court only found him guilty of breaking two windows, which amounted to $150 of the $3,101.80 in property destruction. He argues the test is whether, but for the breaking of the two windows, the rest of the damage would have occurred. Since he was only convicted of third degree malicious mischief for specific damage to two broken windows in the rental house, he argues restitution cannot be based on acts not part of the charge for which he was convicted. He also asserts no evidence exists that the breaking of the two windows caused other damage in the home. But Mr. Ingersoll was convicted of two crimes, including burglarizing the rental house. The test is whether, but for the burglary and malicious mischief, the rest of the damage would have occurred. Keigan C., 120 Wn. App. at 608.
A burglar does not invariably cause physical damage to a structure while attempting the burglary. State v. Jackson, 112 Wn.2d 867, 878, 774 P.2d 1211 (1989). Damage to property can be connected to a burglary conviction for restitution purposes. Mead, 67 Wn. App. at 491 (here defendant was not charged or convicted of burglary; therefore restitution for these types of damages could not be ordered).
Under the Mead test, it is reasonable to infer Mr. Ingersoll was inside the rental house while all of the damage occurred. He was convicted of entering the house under the residential burglary charge. There is no evidence he left the rental house while the damage was occurring. The burglary and vandalism occurred during an unknown span of time between 2:00 p.m. and 4:30 p.m. The neighbors saw Mr. Ingersoll and Mr. Dean running away from the rental house at about 4:00 p.m. to 4:30 p.m.
It is also reasonable to infer that none of the damage occurred before Mr. Ingersoll burglarized the rental house. Two days before the crimes, the owner cleaned the rental house. Neither the neighbors nor the rental house owner noticed anything unusual about the rental house until about 4:00 p.m. to 4:30 p.m. on the day of the crimes. The record does not show that anyone besides the two boys went inside the rental house.
The argument in favor of joint and several restitution is strengthened by one of the purposes of restitution: compensation to victims. Donahoe, 105 Wn. App. at 100. Also, the legislature mandated that juvenile offenders must be held jointly and severally responsible for damage for crimes involving multiple participants. RCW 13.40.190(1). Because of this joint and several restitution mandate for juveniles and the reasonable inference that the damage occurred at the same time as the crimes for which Mr. Ingersoll was convicted, the court did not abuse its discretion.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and BROWN, J., concur.