Opinion
Nos. 18384-0-III, 18385-8-III.
Filed: June 22, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County, No. 98-1-02493-4, Hon. Salvatore F. Cozza, 03/22/1999, Judgment or order under review.
John T. Rodgers, Rodgers Peterson, for appellant(s).
Kevin M. Korsmo, Spokane County Prosecutor's Office, Andrew J. Metts Iii, Deputy Prosecuting Attorney, for respondent(s).
Following two separate incidents, Jeanette Bittner was convicted of two counts of first degree robbery. She argues the trial court erred by (1) not giving lesser offense instructions for theft on the robberies, and (2) ordering restitution. We affirm.
FACTS
Ms. Bittner was charged with two counts of first degree robbery and second degree assault arising from August 9 and August 19, 1998 incidents in Spokane. The following facts bear on issues related to the trial court's denial of theft lesser-included offense instructions and the court's restitution order.
On August 9, Ms. Bittner was walking with a group of friends under a freeway overpass. A driver saw Ms. Bittner and Christopher J. Walters leave the group and approach an elderly man, Darel W. Smith, who was carrying groceries. Mr. Walters grabbed the groceries, causing them to fall to the ground. Mr. Walters struck Mr. Smith in the face causing severe injuries. Ms. Bittner and Mr. Walters then ran off.
Testimony for the State from one in the group, Benjamen T. Keifer, indicated that Ms. Bittner discussed taking the groceries from Mr. Smith with the group. Then, Ms. Bittner and Mr. Walters left the group and approached Mr. Smith. As the incident took place, Ms. Bittner attempted to pick up some of the groceries along with Mr. Walters, but fell and scraped her knees. Ms. Bittner ran off. She later helped eat the groceries after they were retrieved by Mr. Walters and Mr. Keifer.
On August 19, Marshall M. Feehan was walking through Peoples Park when a woman approached him and said, 'hello.' After the woman passed him, Mr. Feehan heard something behind him. He was then hit with a rock, knocked down, and his eyes were covered with someone's hand. Someone reached for Mr. Feehan's wallet while a man repeatedly said, 'if you look at me, I'll kill you.' The attackers took cash from Mr. Feehan's wallet and ran off. Mr. Feehan was unable to positively identify Ms. Bittner. However, Mr. Keifer, who acted as a lookout during the robbery, testified that Ms. Bittner helped plan and carry out the robbery. Mr. Keifer did not see who went through Mr. Feehan's wallet, but opined it was Ms. Bittner based upon what he saw.
Mr. Walters, an adverse witness for the State, attempted to distance Ms. Bittner from both critical events. Nevertheless, Mr. Walters' testimony implicated her in both events. Testimony from police officers established Ms. Bittner's presence at the August 9 incident by her admission. There was also testimony of her scraped knees and testimony that she admitted that she and Mr. Walters took Mr. Smith's groceries. Ms. Bittner did not testify.
Ms. Bittner unsuccessfully requested less serious theft instructions on the robberies. On February 11, 1999, the jury returned guilty verdicts on the robbery charges, but was unable to agree on the assault charges.
At sentencing on March 19, 1999, the court learned through State's Exhibit 1, a state agency printout of Mr. Smith's medical claims and payments, that Mr. Smith made 99 specific claims for services beginning August 9, 1998 through January 29, 1999 totaling $105,821.43, of which the State Department of Social Health Services (DSHS) paid $45,915.15. Exhibit 1 includes Mr. Smith's name, specific claim numbers, type and description of claims, service dates, and the providers' names. Exhibit 1 indicates on its face that Ms. Bittner's counsel received a copy of the printout on March 12, 1999, one week before sentencing. At sentencing, Ms. Bittner argued lack of notice of, or clear basis for the State's restitution request. Ms. Bittner was ordered to pay $45,915.15 to reimburse DSHS based solely on the printout information. Ms. Bittner appealed.
ANALYSIS A. Instructions
The issue is whether the trial court erred by refusing to give lesser-included offense instructions for first or third degree theft as alternatives to the robbery charges.
'A trial court's refusal to give a requested instruction, when based on the facts of the case, is a matter of discretion and will not be disturbed on review except upon a clear showing of abuse of discretion.' State v.
Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 549, 947 P.2d 700 (1997). A defendant is entitled to a lesser-included offense instruction if the offense satisfies the two-part test set forth in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) and reaffirmed in Berlin, 133 Wn.2d at 550. To satisfy the legal prong of the test, each of the elements of the lesser offense must be a necessary element of the offense charged. Berlin, 133 Wn.2d at 550. To satisfy the 'factual prong,' the evidence must support an inference that the lesser offense was committed. Id. at 551. Under the factual prong, the defendant must affirmatively point to some evidence that would support an alternative theory on the lesser-included offense and may not rely on the mere possibility that the jury could disbelieve the State's evidence. State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995). The absence of the factual prong precludes giving a lesser-included instruction and renders a discussion of the second Workman prong unnecessary.
Pointing to the State's evidence, Ms. Bittner contends she did not use force to take the groceries or money because she was physically away from the victims when they were attacked. However, Ms. Bittner overlooks that in Instruction No. 18, the jury considered her actions as an accomplice. A person is guilty as an accomplice if, with knowledge that it will promote or facilitate the crime, he or she aids or agrees to aid such other person in planning or committing it. RCW 9A.08.020(3). An accomplice need not participate in each element of the offense, nor share the same mental state required for the principal. 'Rather, it is the intent to facilitate another in the commission of a crime by providing assistance through his presence or his act that makes the accomplice criminally liable.' State v. Galisia, 63 Wn. App. 833, 840, 822 P.2d 303, review denied, 119 Wn.2d 1003 (1992).
The State provided testimony that Ms. Bittner directly aided Mr. Walters in both incidents. In the first incident, testimony indicated she wanted the brand of potato chips in the elderly man's bag, discussed getting them with Mr. Walters, and went with Mr. Walters to get them. The fact that Mr. Walters may have struck Mr. Smith after taking the groceries does not negate Ms. Bittner's liability because an accomplice runs the risk that the principal will exceed the scope of the prearranged crime. State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883 (1984). Moreover, no dispute exists that force was used when initially grabbing the grocery bags.
In the second incident, testimony indicated Ms. Bittner helped plan and execute the robbery. No evidence exists that when planning or executing the events it was possible to obtain the personal property from either victim's person or presence except by the use or threatened use of immediate force, violence, or fear of injury to each victim. RCW 9A.56.190. The evidence exclusively indicates bodily injury resulted to both victims. And, as noted above, as an accomplice, Ms. Bittner cannot shield herself from culpability under the vague theory that she might have merely intended some form of theft.
In short, the evidence does not support an inference that first degree theft or third degree theft was committed. Berlin, 133 Wn.2d at 551.
Accordingly, we conclude the trial court did not err when refusing to give the theft instructions. Since Ms. Bittner fails to establish the factual prong under Workman and Berlin, we do not further address the legal prong.
B. Restitution
The next issue is whether the trial court erred in ordering restitution for the State in the amount of $45,915.15, based upon the evidence before the trial court.
The trial court's authority to order restitution is statutory. State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996). We review a restitution order using an abuse of discretion standard. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds, or imposed for untenable reasons. Id. at 679-80. In determining the amount of restitution, the trial court may either rely on the defendant's admission or may base the amount on a preponderance of evidence. State v. Hunsicker, 129 Wn.2d 554, 558-59, 919 P.2d 79 (1996). Evidence is sufficient for the purpose of determining the amount of restitution where it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture. State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994), review dismissed, In re Personal Restraint of Fleming, 129 Wn.2d 529, 919 P.2d 66 (1996).
A causal connection between a crime and restitution is required. State v. Wilson, 100 Wn. App. 44, 48, 995 P.2d 1260 (2000). A test for causal connection is to determine whether the restitution sought is reasonably and rationally related to the crime committed and consequential in the sense that but for the crime committed, the victim would not have incurred the expense or loss. Id. at 50. The amount of restitution need not be proven with specific accuracy. State v. Johnson, 69 Wn. App. 189, 194, 847 P.2d 960 (1993).
Ms. Bittner merely contends Exhibit 1 is illegible and, therefore, insufficient for determining the amount of restitution. She argues on appeal that due process was violated because she was unable to examine or refute the restitution figures. However, the document is stamped 'received' by her counsel one week before the sentencing and restitution hearing. The necessary facts and the causal connection are clearly shown by Exhibit 1. Additionally, the trial court had the benefit of sitting through the trial, adding to clarity. The incident date, the victim's name, the specific claims for medical service, descriptions, and the amounts are indicated. Ms. Bittner had a week to study the document before sentencing but offered no greater objection than partial illegibility. Ms. Bittner had one weeks notice of Exhibit 1 and an opportunity to be heard, the requisites of due process under these circumstances. We conclude the restitution order meets our standard for review.
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.
BROWN, A.C.J.
We concur: SWEENEY, J., KATO, J.