Opinion
No. 60938-6-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 05-1-00845-7, Michael E. Rickert, J., entered October 31, 2007.
Reversed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
In evaluating the causal link between an offense and the victim's damages in a restitution case, we employ the "but for" factual test. Because the State presented no evidence that Steven Scott possessed the stolen vehicle from the time it was stolen or at the time it was damaged, it cannot be said that but for Scott's possession of the stolen vehicle the damages to the vehicle would not have occurred. We reverse the restitution order.
State v. Keigan C., 120 Wn. App. 604, 608, 86 P.3d 798 (2004).
The facts in this case are not in dispute. The State charged Scott with three counts of first degree possession of stolen property, one count of second degree possession of stolen property, and one count of possessing methamphetamines. Scott entered an Alford plea to these charges on July 26, 2007. The statement on plea of guilty acknowledged the State would seek "restitution for 1995 Subaru [Count IV] to be determined by hearing." In the statement, Scott also agreed, "[i]f this crime resulted in injury to any person or damage to or loss of property, the judge will order me to make restitution. . . ."
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Clerk's Papers at 20.
Clerk's Papers at 19.
At the restitution hearing, the owner of the 1995 Subaru testified in regard to the loss she sustained from having her vehicle stolen and then stripped of any value. Police had found the 1995 Subaru in Scott's possession. Scott testified that he had not personally stolen the automobile. The trial court ordered Scott to pay $7,400 in restitution for the Subaru.
Scott appeals.
RESTITUTION
Scott argues that the State did not establish a causal connection between his offense (first degree possession of stolen property) and the damage to the vehicle. We agree.
The court's authority to order restitution is governed by RCW 9.94A.753, which states in pertinent part:
Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) of this section unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment and the court sets forth such circumstances in the record. In addition, restitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.
"The restitution statute is to be interpreted broadly to carry out the Legislature's intention." Furthermore, "the award of restitution must be based on a causal relationship between the offense charged and proved and the victim's losses or damages." A defendant "may not be required to pay restitution beyond the crime charged or for other uncharged offenses." Restitution 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. "An exception to this general rule exists where the defendant pleads guilty and expressly agrees to pay restitution for crimes for which the defendant was not convicted."
State v. King, 113 Wn. App. 243, 299, 54 P.3d 1218 (2002) (citing State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996)).
State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998) (quoting State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993)).
Id.
Woods, 90 Wn. App. at 907-08 (quoting State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993)).
Id.
In evaluating the causal link between the offense and the victim's damages, we employ the "but for" factual test. A trial court's decision with regard to restitution is reviewed for an abuse of discretion. The trial court's discretionary decision is reversible only where it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.
Keigan C., 120 Wn. App. at 608.
King, 113 Wn. App. at 299.
State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000).
The State did not charge Scott with actually stealing the Subaru, nor was there any evidence to support such a charge. Rather, the second amended information lists only the charge of first degree possession of stolen property with respect to the stolen Subaru. The focus of the State's case was on Scott's possession of the Subaru, not on any allegation that he stole it. In order to establish a causal connection between Scott's crime of possessing the stolen Subaru, the record needs to contain evidence showing that he either possessed the Subaru from the time it was stolen or at the time the damages were incurred.
In State v. Hiett, our supreme court summarized two previous cases dealing with the causal connections between restitution, property damage, and the crime charged. The appellants in Hiett relied on two cases, State v. Woods, and State v. Tetters, which the court summarized as follows:
154 Wn.2d 560, 115 P.3d 274 (2005).
90 Wn. App. 904, 953 P.2d 834 (1998).
81 Wn. App. 478, 914 P.2d 784 (1996).
Woods was arrested for possession of a stolen vehicle one month after it was stolen. Tetters was arrested for possession of a stolen vehicle one week after the car was stolen. Neither was charged with the underlying theft, and there was no evidence to support such a charge. In both cases, the trial court ordered restitution for the loss of personal property located in the vehicle at the time it was stolen. On review, the Court of Appeals properly held in both cases that the defendant's subsequent possession of the stolen vehicle was not necessarily related to, or a but for cause of, the loss of the personal property in the vehicles.
Hiett, 154 Wn.2d at 565-66.
The appellants in Hiett were guilty of taking, rather than subsequently possessing, an automobile. The court held that, but for the taking of the vehicle, as opposed to mere possession, the personal property inside would not have gone missing. The order of restitution for the lost personal property was therefore authorized by statute.
Id. at 566.
Id.
In Tetters, this court held that because no evidence had been presented to suggest that the defendant was in possession of the vehicle either from the time it was taken, or when the lost items were taken from the vehicle, the necessary causal relationship between the defendant's possession of the stolen vehicle and the victim's loss of personal property taken from the vehicle had not been established. Similarly, in Woods, the court found the State's attempt to relate back the defendant's possession of the stolen vehicle to the date of the theft to be ineffective and held that the defendant could not be made to pay restitution for items taken from the vehicle when it was stolen a few weeks before.
In contrast, in State v. Harrington, we affirmed the restitution award in a possession of stolen property case where the defendant admitted to illegal possession of the vehicle during the entire time the victim was out of possession, and it was undisputed that the damage to the car occurred during that time.
56 Wn. App. 176, 782 P.2d 1101 (1989).
Here, Scott admitted to possessing the car for three weeks before the police came to his property. The State presented no evidence that Scott possessed the vehicle during the entire time the victim was out of possession, or that he possessed it at the time it was damaged. On this record, there is no way of knowing who was responsible for damaging the vehicle or when it was damaged.
At his restitution hearing, Scott testified that someone called "Sleepy Dave" had towed the 1995 Subaru to Scott's property. He also testified that the "car was pretty trashed" when it came into his possession. Scott argued that because he was not involved in the theft of the vehicle and did not have any direct responsibility for the damage done, he should not be responsible to pay for the damage.
The trial court, in its oral ruling, stated:
We have dealt with this case for a long time. I think it started at least three or four years ago in the civil ex-parte calendar even when Mr. Scott was trying to get title to all sorts of vehicles on his property. I think every judge around here dealt with Mr. Scott, at least a half a dozen times on this case.
Finally, it's wrapped [its] way through the system. It ended when Mr. Scott pled guilty to these charges. It's part and parcel of a guilty plea. He was required to pay restitution. And restitution in this particular case was to Ms. Linton for loss of her 1995 Subaru Legacy.
Report of Proceedings (October 31, 2007) at 20.
This ruling does not indicate that the trial court found a causal connection between Scott's crime of possession and the victim's loss. Restitution cannot be imposed based on Scott's "general scheme" or acts "connected with" the crime charged, when those acts are not part of the charge.
See Woods, 90 Wn. App. at 907-08.
The State bears the burden of proof by a preponderance of the evidence. The State presented no evidence to support a finding that "but for" Scott's possession of the Subaru, the damage to the vehicle would not have occurred. Given these uncertainties, we cannot draw the inferences necessary to conclude that Scott was more likely than not the person responsible for damaging the vehicle. To do so would permit the restitution order to rest on the inference that Scott stole the vehicle from its rightful owner, and that is not the crime with which he was charged.
State v. Dennis, 101 Wn. App. 223, 226, 6 P.3d 1173 (2000).
The State argues that even if there is an insufficient causal connection between Scott's crime and the victim's loss, Scott agreed to pay restitution as part of his plea bargain. We disagree.
The restitution order contains an acknowledgement by Scott that the State would seek restitution for the Subaru. It also contains his statement acknowledging that a judge would order him to pay restitution "[i]f this crime resulted in injury to any person or damage to or loss of property." As discussed above, the State did not prove that Scott's crime resulted in damage to or loss of property. Neither of these statements constitutes his agreement to pay in the absence of a causal link. Moreover, Scott did not agree to pay restitution for uncharged offenses in exchange for dismissal of those offenses pursuant to RCW 9.94A.753(5). Instead, he entered pleas for all offenses charged by the State.
Clerk's Papers at 19.
Accordingly, we hold that the trial court abused its discretion in ordering Scott to pay restitution for the damage to the Subaru.
We reverse the restitution order.