Opinion
No. 25311-2-III.
October 9, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01729-9, Dennis D. Yule, J., entered June 15, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kulik, JJ.
Shortly after 7 a.m. on December 15, 2005, Russell Reed's 2005 GMC Sierra pickup truck was stolen from his driveway in Richland while he left it running unattended to warm up. Mr. Reed's father, Richard Reed, coincidentally spotted the truck on December 26. He called his son, who verified the license plate number. He followed the truck into a lot and parked behind it, blocking it into a parking stall while his son called the police.
Steven Roberts was driving and Kevin Foster was a passenger. A rifle placed in the car by Mr. Roberts was found under the backseat on the passenger side. Mr. Roberts and Mr. Foster were arrested and charged with first degree unlawful possession of a firearm and first degree possession of stolen property. Mr. Roberts pleaded guilty to the firearm possession and the State dismissed the stolen property charge.
At Mr. Foster's trial, evidence was presented that he picked up Katrina Dale driving a new GMC pickup truck on the evening of December 15 — Ms. Dale's birthday — at the Benton City home of her mother, Lori Thoren. They picked up Mr. Roberts and then drove to Mr. Foster's home in Pasco. Mr. Foster loaned the truck to Mr. Roberts when Mr. Foster did not want to drive Mr. Roberts home that evening. Mr. Roberts attempted to return the $30,000 truck to Mr. Foster every day for several days thereafter, but Mr. Foster put it off. The men did not get together until the day of the arrest, when Mr. Roberts stopped by Mr. Foster's home. The jury found Mr. Foster guilty of possessing stolen property and acquitted on the firearm charge.
In a separate hearing, the court ordered restitution of $399.86 to Mr. Reed, the owner of the pickup, and $5,838.59 to his insurance company. The restitution figure included repairs to the truck, the cost of a rental car used while repairs were made, and items of personal property that were missing from the truck.
On appeal, Mr. Foster first challenges the sufficiency of the evidence for the possession of stolen property. When reviewing the sufficiency of evidence, we determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The trier of fact, not the appellate court, resolves testimonial conflicts and evaluates the credibility of witnesses and the weight of the evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). Circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The jury was instructed that in order to convict Mr. Foster of first degree possession of stolen property, it had to find, beyond a reasonable doubt, that between December 15 and 26, 2005 Mr. Foster knowingly possessed stolen property exceeding $1,500 in value, that he knew the property was stolen, and that he "withheld or appropriated the property to the use of someone other than the true owner or person entitled thereto." Report of Proceedings at 241. See RCW 9A.56.140, .150. Actual possession of the stolen property can be shown if the item is in the personal custody of the person charged with possession. State v. Plank, 46 Wn. App. 728, 731, 731 P.2d 1170 (1987).
Mr. Foster argues that evidence showing that he was a passenger on the day of his arrest is insufficient to show possession or knowledge. But taking the evidence in the light most favorable to the State, three witnesses testified that Mr. Foster was driving the truck on the evening of December 15, 2005: Lori Thoren, Katrina Dale, and Steven Roberts. Each of these witnesses, as well as Richard Reed, identified the truck from a photograph. The evidence is sufficient to find that he possessed the vehicle.
Mr. Foster also states that there is insufficient evidence of his knowledge that the truck was stolen. Mr. Foster gave inconsistent statements regarding the truck's owner. He told Ms. Dale that the truck belonged to a friend. He told Mr. Roberts that the truck belonged to a friend of his from Kahlotus who was out of town. And Mr. Foster told the police officer that the truck belonged to Mr. Roberts' father. Mr. Foster's inconsistent statements together with his reluctance to reclaim the vehicle from Mr. Roberts were sufficient for a trier of fact to conclude that Mr. Foster knew the truck was stolen.
Next, Mr. Foster challenges the restitution award. RCW 9.94A.753(5) provides: "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 . . . unless extraordinary circumstances exist which make restitution inappropriate." Restitution may be ordered only for losses incurred as a result of the precise offense charged. 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. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d 350 (2005).
"A restitution order must be based on the existence of a causal relationship between the crime charged and proven and the victim's damages." State v. Blair, 56 Wn. App. 209, 214-15, 783 P.2d 102 (1989). To determine whether a restitution order is within a trial court's statutory authority, our courts use a "but for" factual test to evaluate the causal link between the criminal acts and a victim's damages. State v. Hiett, 154 Wn.2d 560, 566, 115 P.3d 274 (2005); State v. Hunotte, 69 Wn. App. 670, 676, 851 P.2d 694 (1993). "Restitution is authorized only by statute, and a trial court exceeds its statutory authority in ordering restitution where the loss suffered is not causally related to the offense committed by the defendant, or where the statutory provisions are not followed." State v. Vinyard, 50 Wn. App. 888, 891, 751 P.2d 339 (1988).
Mr. Foster claims that his mere possession of the stolen truck was not causally related to the loss of the personal property located within the stolen vehicle at the time it was stolen. He relies on State v. Woods, 90 Wn. App. 904, 953 P.2d 834 (1998) and State v. Tetters, 81 Wn. App. 478, 914 P.2d 784 (1996).
In Woods, the defendant was arrested for possession of a stolen vehicle one month after it was stolen. The defendant in Tetters was arrested for possession of a stolen vehicle one week after the car was stolen. The defendants in those cases were not charged with the underlying theft, and no evidence supported a theft charge. But the trial court in each case ordered restitution for the loss of personal property in the vehicle at the time it was stolen. In both cases, the Court of Appeals held that the defendant's possession of the stolen vehicle was not necessarily related to, or a but-for cause of, the loss of the personal property in the vehicle. The same is true here. As stated by the court in Tetters, a defendant's "mere possession of the vehicle is neither sufficiently, nor necessarily, related to the lost personal property. He can not be obligated to pay restitution for those items." Tetters, 81 Wn. App. at 481.
The State argues that Tetters and Woods are distinguishable because the defendants in those cases possessed the vehicle a week or month after its theft, where here, there was evidence that Mr. Foster was driving the truck on the same day that it was stolen. Still, there is no evidence that Mr. Foster was involved in the truck theft.
We affirm the conviction but reverse the restitution order and remand for entry of an order that excludes the lost personal property.
A majority of the panel has determined that 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, J., and KULIK, J., concur.