State Of Washington v. Sahal Ahmed Sahal ( 2014 )


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  •     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 70213-1-1
    Respondent,
    DIVISION ONE
    v.
    UNPUBLISHED OPINION
    FILMON NEGUSE REZENE,                                                             cr-     o-
    MOHAMED ALI HUSSEIN,                                                              r~
    ro
    AHBUDURMAN MOHAMED AHMED,
    and each of them,
    Defendants,
    rc-
    SAHAL AHMED SAHAL,
    FILED: July 28, 2014
    Appellant.
    Trickey, J. —Atrial court has authority to impose restitution for uncharged crimes
    where the defendant has agreed to do so as part of a plea agreement. The amount of
    restitution imposed must be supported by credible evidence. Here, the testimony from
    the victim's husband together with receipts for the various items of jewelry provide a
    reasonable basis to support the restitution order. Affirmed.
    FACTS
    On August 27, 2012, Sahal Ahmed Sahal pleaded guilty to attempted residential
    burglary and first degree theft.1 As part of a plea agreement, Sahal agreed to pay
    restitution for four uncharged crimes in exchange for the State's promise to not file
    charges.2 Specifically, Sahal agreed to pay restitution to Nima Ismail up to $30,000.3
    1 Clerk's Papers (CP) at 9-19.
    2 CP at 28.
    3 CP at 28.
    No. 70213-1-1/2
    On March 6, 2013, the court held a restitution hearing. At the hearing, the State
    requested restitution in the amount of $1,204.50 for the charged crime and $13,437.17
    for restitution to Nima Ismail, for losses sustained from the uncharged burglary.4 Sahal
    objected to portions of the Ismail restitution because there was no victim loss statement
    regarding the value of the jewelry stolen.5 The court ordered restitution for the proven
    amounts, but continued the restitution hearing to afford the prosecution an opportunity to
    provide a victim loss statement.
    Kamal Shifow, Nima Ismail's husband, acknowledged and identified three receipts
    for his wife's jewelry: two from a jewelry store in Seattle and one from Dubai. The three
    receipts were for jewelry thatwas in the home at the time ofthe burglary.6 Shifow testified
    that when he arrived home after his house was burglarized in February 2012, he and his
    wife discovered several items of jewelry missing.7 The two receipts for jewelry from
    Seattle were in American dollars and the last receipt from Dubai was in dirhams.8 The
    court admitted the exhibit containing copies of the three receipts and data obtained from
    an exe.com web site indicating the conversion from United Arab Emirates dirhams to
    dollars.9 The court modified the previous restitution order and awarded an additional
    $12,973.42 in restitution.10
    Sahal appeals, arguing that insufficient evidence supports the amount of the
    restitution award.
    4 Report of Proceedings (RP) at 44
    5 RP   at   44-45.
    6 RP   at   55.
    7 RP   at   56.
    8 RP   at   56.
    9 Exhibit (Ex.) 1;RPat57.
    10 CP at 37.
    No. 70213-1-1/3
    ANALYSIS
    An order of restitution is proper where a defendant expressly agrees in a plea
    agreement to pay restitution for crimes for which he was not convicted. State v. Griffith.
    
    164 Wn.2d 960
    , 965-66,
    195 P.3d 506
     (2008). The State bears the burden of establishing
    restitution by a preponderance of the evidence. State v. Dennis. 
    101 Wn. App. 223
    , 226-
    27, 6P.3d1173(2000).
    We review the trial court's restitution order for an abuse of discretion. Griffith. 
    164 Wn.2d at 965
    .      The court abuses its discretion when its decision is manifestly
    unreasonable or exercised on untenable grounds or for untenable reasons. State v.
    Enstone, 
    137 Wn.2d 675
    , 679-80, 
    974 P.2d 828
     (1999).
    When a party disputes the facts supporting a restitution, the award must be proved
    by a preponderance of the evidence. State v. Deskins. 
    180 Wn.2d 68
    , 82, 
    322 P.3d 780
    (2014). The amount of restitution must be based on "easily ascertainable" damages.
    RCW 9.94A.753(3). "'Easily ascertainable' damages are tangible damages supported by
    sufficient evidence." State v. Tobin. 
    132 Wn. App. 161
    , 173, 130, 426 (2006); affd, 
    161 Wn.2d 517
    , 
    166 P.3d 1167
     (2007) (quoting State v. Bush. 
    34 Wn. App. 121
    , 123, 
    659 P.2d 1127
     (1983)). While the loss need not be established with specificity, it must be
    supported by substantial credible evidence. Griffith. 
    164 Wn.2d at 965
    . Such evidence
    "is 'sufficient if it affords a reasonable basis for estimating loss and does not subject the
    trier of fact to mere speculation or conjecture.'" Griffith. 
    164 Wn.2d at 965
     (internal
    quotation marks and citations omitted) (quoting State v. Hughes. 
    154 Wn.2d 118
    , 154,
    
    110 P.3d 192
    (2005)). Because the rulesofevidence do notapply to sentencing hearings,
    a broad range ofevidence including hearsay is admissible. ER 1101(c)(3); Deskins. 180
    Wn.2d at 83.
    3
    No. 70213-1-1/4
    Here, the trial court held an evidentiary hearing to determine the appropriate
    amount of restitution. The State presented testimony from the husband, Shifow, who
    identified two receipts in amounts of $5,500 and $5,000 for jewelry purchased by his wife,
    Nima, from a Seattle jeweler. Shifow also identified the third receipt as jewelry his wife
    purchased in Dubai. The amount of the third receipt was in Dubai currency. The State
    submitted an online currency conversion calculator to establish the American dollar value
    of the Dubai currency as $2,473.42.11
    Shifow testified that the jewelry was missing after the burglary. He also testified
    that additional jewelry and heirlooms were taken from the house in the burglary, but that
    the family did not have any proof of the value of those items.
    Sahal contends that the receipts did not show the seller's name and that the third
    receipt was in a foreign language. Sahal argues that this case is similar to the facts in
    State v. Pollard. 
    66 Wn. App. 779
    , 
    834 P.3d 51
     (1992) and, therefore, the evidence was
    insufficient. His reliance is misplaced. Pollard involved a challenge to a restitution award
    based on a defendant's unlawful issuance of checks where the only evidence in the record
    supporting the restitution amount was a police report with statements from the bank
    personnel. Pollard. 66 Wn. App.at 786. This court concluded, standing alone, the double
    hearsay was an insufficient basis upon which to base restitution. Pollard. 66 Wn. App. at
    786. Critical to the decision in Pollard was that the hearsay that was presented failed to
    establish the amount of the victim's losses. Pollard. 66 Wn. App. at 786-87 ("[T]he mere
    fact that [Pollard] withdrew funds from his account does not in itself establish the loss on
    the part of the bank(s). The question is whether the instruments were paid by the
    11
    Ex. 1.
    No. 70213-1-1/5
    drawee(s) on presentment.").       Here, the State has proven the specific loss.     Shifow
    testified that these receipts represented purchases made by his wife for the jewelry that
    was stolen.
    As noted above, the rules of evidence do not apply during a restitution hearing
    and, where evidence consists of hearsay statements, it is properly admitted so long as it
    provides a sufficient basis for the offender to refute it. State v. Kisor. 
    68 Wn. App. 610
    ,
    620, 
    844 P.2d 1038
     (1993). In this case, the State's evidence set forth specific facts and
    named particular sources for those facts. The testimony and accompanying exhibits
    provided sufficient details to elevate the proof beyond the realm of conjecture and
    speculation. Sahal had the opportunity to challenge the veracity of the State's evidence
    in cross-examination.
    Sahal also argues the amount could not be ascertained because the third receipt
    was in foreign language and there was no way to determine what the currency exchange
    rate was.     This is incorrect.   The court accepted the State's proffer of the currency
    exchange web site introduced by the prosecutor. Although defense counsel objected to
    its admission, he stated he did not have any legal basis on which to do so.
    Because the State presented sufficient evidence to support the restitution order,
    the trial court did not abuse its discretion by determining the restitution award.
    Affirmed.
    WE CONCUR:
    QuiZ-