Washington Court Upholds Restitution for Loss of Gun Held as Evidence

Restitution is a concept in criminal law that requires an offender to compensate crime victims for their losses.  It is designed to both punish the offender and compensate the victim.  In a Washington criminal case, restitution is to be ordered when the defendant is convicted of an offense that results in personal injury or property damage or loss. The injury or loss must be “causally connected” to the offense.  Generally, this means that the loss would not have occurred but for the crime.  The loss does not, however, have to be foreseeable.

In a recent case, a court ordered restitution for the loss of a weapon that was in the possession of the sheriff’s office.  The defendant challenged a court order to pay restitution to the owner of a gun he was convicted of stealing. He argued the court erred in ordering him to pay restitution when the gun could have been returned to the owner instead.

According to the court’s opinion, the man had been served with a no-contact order that arose from an arrest for assaulting his estranged wife.  In the same day, he visited the gun owner and asked to see his guns.  He stole a pistol and left while the gun owner was in the bathroom.  He later used the weapon to threaten his wife.  The gun was recovered by the sheriff’s office and placed into evidence.  The defendant admitted stealing it from the owner.

The defendant pleaded guilty to a number of charges involving the incident at his wife’s home, as well as theft of a fire arm.  He agreed to pay restitution as part of the plea agreement. The state sought restitution for the loss of the pistol, but the defendant argued the sheriff’s office had the gun and could return it to its rightful owner.  The state argued that the sheriff’s office had a policy to retain evidence in serious crimes like attempted murder.  The defendant had pleaded guilty to attempted murder here, and the weapon needed to be retained as evidence in case there was a retrial.  The state argued the gun owner had permanently lost his property because the sheriff’s office would retain it as evidence indefinitely.  The court ordered the defendant to pay about $440 in restitution to the gun’s owner.

The defendant argued his actions were not the “but for” cause of the loss.  Instead, he argued, it was the sheriff’s office policy that caused the owner to lose his property.  The appeals court, however, noted that it was the defendant’s conduct that caused the sheriff’s office to retrieve and permanently retain the pistol.  Although this may not have been foreseeable to the defendant, Washington law does not require foreseeability of the loss for a court to order restitution.  The appeals court found that “but for” the defendant’s conduct, the owner would not have incurred the loss and affirmed the order for restitution.

This case presents an interesting set of facts.  The property still exists and could theoretically be returned to its owner.  The appeals court, however, accepted the state’s argument that the property needed to be retained as evidence and that it was the defendant’s criminal actions that caused the property to be lost to its owner.  The appeals court did not consider the defendant’s argument that the sheriff’s office had a duty to return the property, finding it was not properly preserved for appeal.  Furthermore, the appeals court did not address whether the results would be different if the sheriff’s office did not have a clear policy or if the criminal offense had been less serious.

If you are facing criminal charges, an experienced Washington criminal defense attorney will fight for your rights and to avoid inappropriate restitution. Call the attorneys at Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.

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