Opinion
Nos. 61621-8-I Consolidated with 62021-5-I.
September 21, 2009.
Appeals from a judgment of the Superior Court, Skagit County, No. 07-1-00699-0, John M. Meyer, J., entered May 1, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Grosse and Appelwick, JJ.
Martin Dale Adams challenges his conviction of second degree burglary, arguing that insufficient evidence supports his conviction. He also requests reversal of the restitution order relating to the cost of replacing the locking ignition systems for 212 cars after a can containing the original vehicle keys could not be located following the burglary. The State cross-appeals, challenging the calculation of Adams's offender score by the trial court. We affirm the conviction of second degree burglary and the restitution order because sufficient evidence supports both. We also affirm the calculation of Adams's offender score because any error that the trial court may have committed is harmless.
Background
On June 8, 2007, John Bettys locked up the office and front gate to Salvage Boys Auto Repair around 4:15 p.m. and went home. He was notified at approximately 10:10 p.m. that a suspicious truck was parked across from the shop. Bettys put on a security shirt, hat, and badge before walking one block from his home to the truck. At this time, he noticed a shadowy figure running across a county road away from the property. Bettys identified himself as armed security and exclaimed, "[S]top or I'll shoot!" Bettys also communicated that the police had been notified, but the figure continued on and disappeared.
Five police officers responded and arrived with their overhead lights and sirens activated. The officers searched the area. They then called in a K-9 officer to continue the search. The K-9 officer called out several times over the public announcement system, warning that she would release the dog unless any unidentified person made himself known. The dog picked up an enhanced scent on the west side of the business, crossed the main street into a driveway, and tracked to the location of both Martin Adams and Terry Jones. They were located less than 100 feet from where the K-9 officer had announced the canine pursuit over the loudspeaker and the officers on scene had called out to the men to reveal themselves.
Adams and Jones were arrested. Adams told the officers that they had stopped to urinate on the side of the road when they heard someone shouting and threatening to shoot. He stated that they hid under an excavator because they were frightened. Adams claimed that he was unaware that a burglary had occurred and that the police were on the scene, despite the lights, sirens, and audible announcements. He also denied ever physically being on the side of the road where the business is located. Both men gave conflicting statements about where they had been that day, what they were doing, and whom they were with.
An investigation of the business after the robbery revealed that the gate lock was pried open and there were scrape marks down the center of the lock pad on the office door. Items such as a milk crate and a come-along with a chain used at the business during the day of the incident were found in Adams's truck. The truck also contained property taken in other burglaries at the shop such as a yellow chain fault, a tackle box, and a tow bar. In addition, a metal can filled with over 200 vehicle ignition keys was in the office of the shop when it was closed on the afternoon of the burglary but was missing the next morning when the business opened. These keys were never located.
Adams was charged on June 13, 2007, with burglary in the second degree and possession of stolen property in the second degree in violation of RCW 9A.52.030(1) and RCW 9A.56.160(1)(a). A jury found Adams guilty of both charges. At his sentencing on April 23, 2008, the trial court held that a prior conviction of the defendant was not included in his offender score. A restitution hearing was conducted, and the trial court ordered $17,171 in restitution on June 26, 2008, which included the cost of replacing the 212 locking ignition systems.
Discussion SUFFICIENCY OF THE EVIDENCE
Adams argues that sufficient evidence does not support his conviction because the State failed to present evidence that he unlawfully entered or remained in the business. A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences therefrom. The conviction must be reversed if, after viewing the evidence in a light most favorable to the State, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Circumstantial evidence and direct evidence are equally reliable. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
In order to prove second degree burglary, the State was required to show that Adams unlawfully entered or unlawfully remained in the business and that he intended to commit a crime against a person or property in the business. "[P]roof of possession of recently stolen property, unless accompanied by other evidence of guilt, is not prima facie evidence of burglary." But our courts have held that proof of possession, if accompanied by corroborative evidence, will support a burglary conviction:
RCW 9A.52.030(1) provides: "A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling."
State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982).
Mace, 97 Wn.2d at 843.
". . . When a person is found in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances tending to show his guilt will support a conviction. When the fact of possession . . . is supplemented by the giving of a false or improbable explanation of it, or a failure to explain when a larceny is charged, . . . or the giving of a fictitious name, a case is made for the jury."
. . . Other circumstances include flight or the presence of the accused near the scene of the crime.
Mace, 97 Wn.2d at 843 (emphasis omitted) (alteration in original) (quoting State v. Portee, 25 Wn.2d 246, 254, 170 P.2d 326 (1946)).
Here, the direct evidence, viewed in the light most favorable to the State, shows that numerous items were taken from the business and placed in Adams's truck. The men heard Bettys shouting while walking down the hill and ran across the road into another lot. They hid underneath a large excavator, did not respond to the police who were searching for them, and were later apprehended with the aid of a K-9 unit. When stopped and questioned about the incident, Adams and Jones gave conflicting and inconsistent stories about where they had been that day and evening. Thus, the State established actual possession plus the giving of a false or improbable explanation, the presence of the accused near the scene of the crime, and flight.
Although only circumstantial evidence ties Adams directly to the burglary, a rational trier of fact could have found guilt beyond a reasonable doubt based on the corroborative evidence of these other inculpatory circumstances. This circumstantial evidence in combination with the undisputed evidence of a burglary at the business, the inconsistency between what Adams and Jones said when stopped, and the presence of both men near the scene of the crime created the reasonable inference that Adams unlawfully entered the business and obtained numerous items inside. We affirm his conviction.
RESTITUTION
Adams argues that the trial court abused its discretion when it ordered him to pay the cost of replacing the locking ignition systems for 212 cars. He claims that the State did not establish a causal connection between the crime committed and the restitution ordered.
We review a trial court's restitution order only for abuse of discretion. The trial court's order will not be disturbed unless the exercise of discretion was manifestly unreasonable or based on untenable grounds or reasons.
State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).
"A court's authority to impose restitution is statutory." Restitution is granted and governed by RCW 9.94A.753 which states, in relevant part:
State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008).
(3) Except as provided in subsection (6) of this section, restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.
. . . .
(5) 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.
Our Supreme Court has interpreted this statute as requiring the sentencing court to find "that a victim's injuries were causally connected to a defendant's crime before ordering a defendant to pay restitution for the expenses which resulted." Causal connections cannot be established simply by a victim or insurer submitting proof of expenditures. If a defendant disputes the amount of restitution ordered, the State must prove the damages by a preponderance of the evidence. Losses are causally connected if, but for the charged crime, the victim would not have incurred the loss.
Enstone, 137 Wn.2d at 682.
State v. Dedonado, 99 Wn. App. 251, 257, 991 P.2d 1216 (2000).
State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).
State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007).
Here, the can filled with vehicle ignition keys was present and accounted for inside the office before Bettys left the business in the afternoon. Upon opening the business the next day, the keys were missing. The trial court stated that the "but for" test was met and that even though theft of the keys was not specifically charged, the issue of the keys was raised at both the trial and the restitution hearing. The damages can be identified by a preponderance of the evidence even though the keys were never recovered. The amount of restitution ordered was calculated based on an estimate of the cost to replace the key and ignition for 212 vehicles at $81 per vehicle. The finding of a causal connection can be reasonably inferred and the amount of damages awarded is easily ascertainable. Therefore, the restitution order was not an abuse of discretion.
CALCULATION OF OFFENDER SCORE
The State cross-appeals, arguing that the trial court erred in calculating Adams's offender score. We review a sentencing court's calculation of an offender score de novo.
State v. McCraw, 127 Wn.2d 281, 289, 898 P.2d 838 (1995).
When faced with an unambiguous statute, we derive the legislature's intent from the plain language alone. When a statute is ambiguous, principles of statutory construction, legislative history, and relevant case law are used to assist the court's interpretation. Ambiguity exists if a statute can reasonably be interpreted more than one way.
Waste Mgmt. of Seattle, Inc., v. Utils. Transp. Comm'n, 123 Wn.2d 621, 629, 869 P.2d 1034 (1994).
State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002).
Yousoufian v. Office of King County Executive, 152 Wn.2d 421, 433, 98 P.3d 463 (2004).
RCW 9.94A.525(2)(c) provides:
Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including fulltime residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
The plain language of this statute establishes that class C prior felonies shall not be included if an offender has spent five consecutive years in the community without committing another crime that ultimately results in a conviction.
The State argues that Adams's second degree burglary charge from 1998 should be included in his offender score because he was in pretrial warrant status for failing to appear in that case. However, the record clearly indicates, and the parties agree, that five years passed between December 17, 1998, and April 16, 2004, when Adams did not commit any new criminal violations for which he was subsequently found guilty. Therefore, the State's argument fails under the plain language of RCW 9.94A.525. Even if the trial court committed error, the error was harmless. The record indicates that including the burglary conviction would only have increased the offender score from five to six on the burglary charge and from four to five on the possession of stolen property charge. The court stated that it would have sentenced Adams to a standard sentencing range of 22 months regardless of the offender score.
See State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (holding that the error in calculating a defendant's offender score was harmless when the standard range for his sentence would have been the same even if the sentencing court had properly calculated his offender score).
CONCLUSION
We hold that the State presented sufficient evidence at trial for a rational trier of fact to convict Adams of second degree burglary. We also affirm the trial court's restitution order. A causal connection can be established between the theft at the business, which included the keys, and the missing objects found in Adams's truck. Finally, we affirm Adams's offender score because any error the trial court may have committed was harmless.
Affirmed.
WE CONCUR.