Washington Appeals Court Reverses Restitution Order

RCW 9.94A.753(5) requires a court to order restitution when a defendant is convicted of a Washington criminal offense that results in injury or damage to or loss of property, unless there are “extraordinary circumstances.” The state must prove the damages by a preponderance of the evidence. Restitution cannot include intangible losses like mental anguish or pain and suffering. The restitution cannot be more than double the amount of the defendant’s gain or the victim’s loss.  RCW 9.94A.753(3)(a).  A defendant recently challenged a restitution order, arguing the state had not sufficiently proven he had caused the damages.

According to the unpublished opinion of the appeals court, the pleaded guilty to a single count of vehicle prowl and three counts of possession of a stolen vehicle.  He agreed to pay restitution for in an amount to be determined for two of the charged crimes and three uncharged crimes, including possession of a pick-up truck.

In addition to damages to the truck for which the defendant was charged, the state requested $12,605.84 for damage to the uncharged truck.   The state argued the defendant was responsible for all of the damage to the uncharged truck because he was “the person that caused the victim to lose possession of the vehicle. . .”  and asked the trial court to find that the defendant was responsible for all of the damages associated with the vehicle.

The defendant argued the stipulated probable cause statement was for possession, not theft.  He conceded the owner of the vehicle was entitled to restitution for towing, but argued that the state had not shown by a preponderance of the evidence how his possession of the truck resulted in damage to its water pump, transmission, and body.

The trial court determined the state had its burden and ordered the defendant to pay the requested restitution for the vehicle for which he was charged and $12,605.84 to the owner of the vehicle for which he was not charged.

The defendant appealed, arguing the state had not established a causal connection between his possession of the truck for which he was not charged and the damage to it. The state argued that the trial court’s authority arose from the plea agreement.

Generally, there must be a causal connection between the crime and the loss, but a defendant may agree to pay restitution for damages arising from crimes for which he was not convicted. A loss is causally connected if the victim would not have incurred it “but for” the crime. There must be substantial credible evidence supporting the amount of the loss.  Because the rules of evidence do not apply at sentencing, the court may consider hearsay.

In this case, the defendant agreed to pay restitution of not only the two charged crimes, but also for three uncharged crimes.  The trial court therefore could impose restitution for the uncharged crimes.  He argued, however, that the total damages to the uncharged vehicle were not all related to his possession of the vehicle.

The appeals court noted there is a difference between theft and possession of stolen property with regard to restitution. When a person steals property, they are responsible for damages in connection with the loss of the property, even if they were not foreseeable and even if the thief did not personally cause the damage.  A person who possesses stolen property is only responsible for damages that occur during the course of their possession.

The defendant stipulated to the facts in the certification of probable cause.  The appeals court noted the probable cause statement was for possession of a stolen vehicle, not theft.  According to the appeals court, the statement stated the police found the defendant in the running truck in a parking lot.  The probable cause statement did not allege the defendant stole the truck.  The appeals court therefore concluded that the state’s argument that the defendant caused the owner to lose possession of the vehicle was not supported by substantial credible evidence.

The state had to prove that the damages would not have occurred but for the defendant’s possession of the truck. The defendant was found in possession of the vehicle four days after it was stolen. The probable cause statement further stated there was not a key in the ignition. The defendant turned the vehicle off when asked to do so, and stated he did not know who owned the vehicle and did not have permission to be inside it.

The vehicle owner informed the state’s recovery specialist that the vehicle’s transmission was ruined, it was leaking coolant, the locks were damaged, and the body was damaged.

There was, however, no information about the vehicle’s condition when it was found in the defendant’s possession. The court concluded the state offered no evidence showing the damage was caused by the defendant’s possession of the truck.  The appeals court concluded, however, that there was evidence the locks would not have been damaged but for the defendant’s possession.  He was found inside the truck with the engine running without the key.  It was reasonable to infer he damaged the lock in entering the truck and the ignition and parking brake in starting the vehicle.  He conceded a flatbed would not have been needed to get the truck to a repair shop but for his possession.  The appeals further concluded there was substantial credible evidence the owner would not have needed to have the truck thoroughly inspected before use but for the defendant’s possession.

The appeals court reversed and remanded with instructions to the trial court to recalculate restitution for the uncharged vehicle without the damages lacking proof of a causal connection to the defendant’s possession.

Restitution can be a significant issue in Washington criminal cases. As this case shows, the state may attempt to pursue restitution beyond what it can prove. If you are facing criminal charges, a skilled Washington criminal defense attorney can advise you of the potential for restitution in your case.  Set up a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.


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