Opinion
No. 59166-5-I.
October 8, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01420-5, Eric Z. Lucas, J., entered October 25, 2006.
Reversed by unpublished per curiam opinion.
Officer John DeRousse of the Everett Police Department was driving down Broadway late one night when he saw a white Nissan Pathfinder traveling in the opposite direction. Quite a few Pathfinders had been stolen recently, so DeRousse ran the car's plates and discovered it had been reported stolen the previous day.
DeRousse made a u-turn and followed the Pathfinder. He radioed for backup and continued after the Pathfinder without turning on his emergency lights or siren.
He followed the car as it headed north onto Interstate 5. By the time DeRousse reached Marysville, a number of police cars from various jurisdictions had fallen in behind him, so he turned on his flashers and pulled the Pathfinder over to the side of the road.
The driver of the Pathfinder, Stephen Hope, was taken into custody. Officers discovered a house key in the Pathfinder ignition instead of a car key. Hope had a key ring with 19 keys on it in his pocket. Officers frequently find such large key collections when they investigate car thefts.
When the police searched the car, they found an open, locked knife on the passenger seat, along with a cell phone and charger, an open backpack with clothing, some of which was strewn about the car, a large pry bar, a gas can, and a length of rubber hose. Upon closer examination, the ignition appeared to have been tampered with by a flat hard object such as a screwdriver.
The Pathfinder's owner was summoned, and identified the car. He told police that none of the belongings found in the car were his. The car was messy inside and appeared to have been driven off-road. The front fender was damaged and one of the fog lights had been bent back.
Hope was charged with first degree possession of stolen property.
At trial, Hope said he had been sitting on the front porch of a friend's house late at night when he saw two men drive the Pathfinder abruptly to the curb, leap out "like it stunk", and drive away in another car. Prompted by curiosity, he went to examine the car, and found that the driver's door was open, a house key was in the ignition, and the dash lights were on.
In a written statement made at the time of his arrest, Hope stated that he had been walking down the street when he saw the Pathfinder pull over to the curb.
He told the court he got in the car and started it, though he could not offer any explanation why. He then drove off, apparently motivated by a general desire to be somewhere other than where he was. "I was just driving," he said. "I had nowhere to go, really." He admitted that the phone, the charger, and the backpack and clothes were his, but denied any knowledge of the pry bar, the knife, or the gas can and hose. He said he found the key ring with the 19 keys on the floorboard and put them in his pocket because he thought it was dangerous to have them underfoot.
Hope was convicted of first degree possession of stolen property. He was ordered to pay $500.00 to the owner of the Pathfinder to cover the insurance deductible, and $854.58 to the insurance company as restitution for damage to the Pathfinder.
Standard of Review
A trial court's order of restitution is reviewed for abuse of discretion. A court abuses its discretion when it is exercised in a manifestly unreasonable manner, or based on untenable grounds.
State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999).
Enstone, 137 Wn.2d at 679-80.
Discussion
A court must order restitution whenever an offender is convicted of an offense that injured any person or caused damage to or loss of property. A defendant may not be required to pay restitution beyond the crime charged. An award of restitution must be based on a causal relationship between the offense charged and proven and the victim's damages. In evaluating the causal link between the offense and the victim's damages, we employ the "but for" factual test. A causal connection exists when "but for" the offense committed, the victim's loss would not have been incurred. If the defendant disputes facts relevant to determining restitution, the State must prove the damages by a preponderance of the evidence. In determining any sentence, the trial court may rely on no more information than is admitted, acknowledged, or proved in a trial or at the time of sentencing. Where there has been a factual dispute, the reviewing court looks to see if there is substantial evidence in the record to support the trial court's factual finding.
RCW 9.94A.753(5); State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993).
State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998).
Woods, 90 Wn. App. at 908 (quoting State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993)).
State v. Keigan C., 120 Wn. App. 604, 608, 86 P.3d 798 (2004), aff'd, 154 Wn.2d 560, 115 P.3d 274 (2005).
State v. Blair, 56 Wn. App. 209, 216, 783 P.2d 102 (1989).
State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).
Woods, 90 Wn. App. at 907.
State v. Griffith, 136 Wn. App. 885, 891, 151 P.3d 230 (2007).
Hope argues that the State did not establish a causal connection between his offense and the damage to the vehicle.
Hope was not charged with actually stealing the Pathfinder. Rather, the initial information and two subsequent amended informations list only the charge of first degree possession of stolen property. The focus of the State's case was on Hope's possession of the Pathfinder, not on any allegation that he stole it. In order to establish a causal connection between Hope's crime of possessing the stolen Pathfinder, there needs to be evidence showing that he either possessed the Pathfinder from the time it was stolen or at the time the damages were incurred.
The amended information also charged Hope with being armed with a deadly weapon, namely the knife. This charge was dropped in the second amended information.
Our Supreme Court summarized two previous cases dealing with the causal connections between restitution, property damage, and the crime charged. In State v. Hiett, the appellants denied that a sufficient causal connection existed between taking a vehicle and the loss of personal property in the vehicle when it was taken or damage caused by driving afterward. The appellants relied on two cases, State v. Woods, and State v. Tetters, both of which are also cited by the parties in the present case.
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.
Hiett, 154 Wn.2d at 566.
Hiett, 154 Wn.2d at 566.
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).
In the present case, Hope admitted to possessing the car for only a very brief time before he was spotted by Officer DeRousse and pulled over. While the period of time the victim was out of possession was shorter than in Tetters and Woods, the State presented no evidence that Hope possessed the vehicle during the entire time the victim was out of possession, or that he possessed it at the time it was damaged. There is no way of knowing who was responsible for damaging the vehicle or when the damage occurred.
The trial court understandably did not find Hope's testimony credible. But disregarding his explanation for his presence in the stolen vehicle does not provide the affirmative evidence required. The State bears the burden of proof by a preponderance of the evidence. The State presented no evidence sufficient to support a finding that "but for" Hope's possession of the Pathfinder, the damage to the vehicle would not have occurred. Given these uncertainties, we cannot draw the inferences necessary to conclude that Hope 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 Hope 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).
Accordingly, we hold the trial court abused its discretion in ordering Hope to pay restitution for the damage to the Pathfinder, and reverse the restitution order.
REVERSED.