State Of Washington v. E.b.g. ( 2015 )

2015 NOV 16 ^i lo: o.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72698-6-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
E.B.G. (D.O.B. 6/20/99),
Appellant. FILED: November 16, 2015
Appelwick, J. — E.B.G. appeals the juvenile court's order setting restitution.
E.B.G. was convicted of residential burglary. E.B.G. argues that his due process
rights were violated, because the State did not provide a reasonable basis to
support the restitution award. We affirm.
FACTS
E.B.G. was convicted of residential burglary in juvenile court after breaking
into and taking items from Charles Oliver's house. The juvenile court entered an
order of disposition requiring, among other things, a future restitution hearing. On
October 30, 2014, the court held a restitution hearing.
At the restitution hearing, the State offered Oliver's victim loss claim form.
The victim loss claim form stated that all unrecovered property and damaged
claims had to be supported by receipts or ads for the same or a similar item. It
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stated that unsupported values would not be accepted. Oliver attached a report
from Homesite Home Insurance documenting an accounting of his insurance
claims and HomeSite's payments on those claims. Oliver signed the victim loss
claim form. The form stated, "I declare under penalty of perjury, under the laws of
the State of [sic]that the foregoing is a true and accurate accounting of my financial
loss relating to this crime."
The Homesite report listed 27 items Oliver reported as stolen or damaged,
Oliver's estimates of the value of the items, and HomeSite's determination of the
actual cash value of the loss. The items Oliver claimed as missing were eight
pieces of jewelry, $2,000 cash that Oliver had borrowed from Prevail Credit, $5,200
in cash that his wife1 received from unemployment benefits, a bejeweled end table,
five sets of car keys, two designer suits, a pair of shoes, a music box, and two
handbags. Oliver also claimed the cost to repair or replace damaged items: the
cost to repair his glass door, the cost to repair a grandfather clock, the cost to
replace a damaged Comcast cable box, and the cost to replace two damaged DVD
players. Oliver's total reported cash value lost was $23,890.39 plus $1,804.02 to
fix the glass door.
Homesite paid Oliver $1,304.02—the cost to fix his shattered glass door
minus a $500 deductible. And, Homesite determined that Oliver's lost and
damaged items were worth $21,886.11 after depreciation. But, it paid Oliver only
1 Charles Oliver is the only victim listed on the victim loss claim form. But,
Oliver's wife, Aloncita Monroe, was listed on HomeSite's insurance documents,
presumably because she was included on the policy. And, she was listed as a
party to be paid, in addition to Oliver, on the final order setting restitution.
No. 72698-6/3
$6,893.43, because his loss exceeded his policy limit. On his victim loss
statement, Oliver claimed $15,492.68 restitution for himself—the amount of
damages minus depreciation that was not covered by Homesite—and $8,197.45
for Homesite—the amount they covered for the glass door repair and the lost and
damaged items. Homesite sent Oliver letters informing him of how much of his
loss was covered. Both letters stated in bold letters, "It is a crime to knowingly
provide false, incomplete or misleading information to an insurance company for
the purpose of defrauding the company. Penalties include imprisonment, fines and
denial of insurance benefits."
While the State provided Oliver's victim loss statement with the attached
insurance documents, the State did not provide any receipts or other substantiation
for Oliver's requested restitution. Oliver testified at the restitution hearing. Oliver
testified that although he did not provide the receipts to the State for restitution
purposes, he had provided Homesite with some ofthe receipts. Hetestified under
penalty of perjury that the list of items that he submitted to Homesite was a full and
complete list of the items stolen from him or damaged during the burglary. He
further testified that the estimates for repairs or replacement of the damaged and
stolen items were accurate.
During cross-examination, because Oliver did not provide receipts for
purposes of restitution, the defense asked Oliver to provide the sources of his
estimates. For the jewelry, Oliver testified that he conducted internet searches to
approximate the value ofthe pieces for which he did nothave receipts. He testified
No. 72698-6/4
that his price estimates were "really lowball." The defense attempted to disprove
Oliver's lowball estimates by providing an internet printout of one of the claimed
items that was being sold online—a lion's head ring. Oliver valued the lion's head
ring at $2,190 and an internet retailer valued it at $1,299.
For the cash requests, Oliver testified that the $2,000 request was the
remainder of a $2,500 loan that he had taken out from his credit union in order to
purchase a washer and dryer. Oliver did not have proof of the loan. For the $5,200
in cash, Oliver testified that it represented unemployment benefits that his wife had
been saving. Oliver also had no proof of the source of the unemployment benefits.
For the cost of replacing the stolen car keys, Oliver testified that he had given
receipts to the insurance company, but did not save the paperwork.
Oliver was generally frustrated by the questioning, reminding defense
counsel that he was the victim and stating that he no longer wished to think about
the incident. He reiterated that he was declaring under penalty of perjury that the
damage he claimed in his victim loss claim was an accurate accounting of his
financial loss.
After Oliver's testimony, the court asked some additional questions. The
court commented that itwas troubled by Oliver's inability to provide documentation,
reasoning that most people would document the loss if they had already done so
for the insurance company. But, it opined that it gives victims who make insurance
claims the benefit of the doubt, because they declare under penalty of perjury to
the insurance company that they are honestly reporting their losses, and because
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it is a criminal offense to make a false insurance claim. The court also noted that
it had no controverting evidence from E.B.G. that he did not steal the items in
question.
As a result, the juvenile court concluded that the State carried its burden
with respect to the majority of the items. But, it stated that it had reservations as
to some of the items. Specifically, it stated that for the $2,000 cash loan, Oliver's
wife's $5,200 in unemployment benefits in cash, and the replacement of the car
keys, the State had not sufficiently met its burden. Consequently, it left the matter
open and gave the State two weeks to provide the court additional documentation
supporting all three claims. Additionally, the court decided to order restitution in
the amount of $1,299 for the lion's head ring instead of the $2,190 Oliver
requested. Because the juvenile court kept part of the restitution hearing open for
the State to provide further documentation, it reserved entering a final restitution
order.
On November 20, 2014, the juvenile court entered an order setting
restitution that did not include the reserved items. Ostensibly, Oliver failed to
supply the requested documentation. The order setting restitution awarded Oliver
and his wife $7,401.68 and it awarded Homesite $6,096.49.2 E.B.G. appeals.
2 The juvenile court ordered that E.B.G. pay the $13,498.17 restitution
amount jointly and severally with another defendant who also participated in the
burglary.
No. 72698-6/6
DISCUSSION
E.B.G. makes two arguments on appeal. First, E.B.G. argues that the
juvenile court's restitution order violated due process, because the evidence
presented was unreliable and did not provide a reasonable basis for estimating
Oliver's loss. He claims that the evidence the State provided required the juvenile
court to improperly engage in speculation or conjecture. E.B.G. also asserts that
the juvenile court erroneously shifted the burden of proof to E.B.G. to disprove the
State's restitution claim.
The authority to impose restitution in a juvenile case is controlled by statute.
State v. Hiett. 154 Wash. 2d 560, 563, 115 P.3d 274 (2005). The Juvenile Justice Act
of 1977 (JJA) mandates that in a dispositional order, the court "shall require the
respondent to make restitution to any persons who have suffered loss or damage
as a result of the offense committed by the respondent." RCW 13.40.190(1 )(a).
The JJA limits restitution to "easily ascertainable damages for injury to or loss of
property, actual expenses incurred for medical treatment for physical injury to
persons, lost wages resulting from physical injury, and costs of the victim's
counseling reasonably related to the offense." RCW 13.40.020(26).3
The sentencing court has discretion to determine the amount, terms, and
conditions of the restitution. State v. Bennett. 63 Wash. App. 530, 532, 821 P.2d 499
3 Because decisions interpreting the Sentencing Reform Act of 1981 (SRA)
may be used in cases arising under the JJA where there is no contrary intent, we
use SRA case law for guidance as well as cases arising under the JJA. State v.
P.B.T., 67 Wash. App. 292, 302, 834 P.2d 1051 (1992). The definition of restitution
in the SRA is very similar to the definition of restitution in the JJA and does not
suggest contrary intent. Compare RCW 9.94A.750(3), with RCW 13.40.020(26).
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No. 72698-6/7
(1991). Restitution orders are reviewed for abuse of discretion. \± at 533. An
abuse of discretion occurs when a restitution order is manifestly unreasonable or
the court exercises its discretion on untenable grounds or for untenable reasons.
State v. Smith. 33 Wash. App. 791, 798-99, 658 P.2d 1250 (1983).
Restitution awards must be based on a causal relationship between the
offense charged and proved and the victim's losses or damages. State v. Keigan
(L, 120 Wash. App. 604, 607-08, 86 P.3d 798 (2004), aff'd sub nom, State v. Hiett.
154 Wash. 2d 560, 115 P.3d 274 (2005). The State is not required to prove loss
beyond a reasonable doubt or by clear and convincing evidence. Bennett, 63 Wn.
App. at 535. The victim need only present evidence that affords a reasonable
basis for establishing the loss and does not subject the trier of fact to mere
speculation or conjecture, jd. Once the State establishes the fact of damage, the
amount need not be shown with mathematical certainty. State v. Mark, 36 Wn.
App. 428, 434, 675 P.2d 1250 (1984). If the defendant disputes facts relevant to
a restitution award, the State must prove damages by a preponderance of the
evidence. State v. Kinneman, 155 Wash. 2d 272, 285, 119 P.3d 350 (2005).
E.B.G. argues that the evidence the State presented in support of Oliver's
restitution claim failed to supply a reasonable basis for estimating loss and required
the juvenile court to engage in speculation or conjecture. E.B.G. does not
challenge the causal connection between the burglary and the missing and
damaged items. He contests only the sufficiency of the evidence concerning the
amount of damages.
No. 72698-6/8
E.B.G. argues that the State provided nothing more than a rough estimate
of the costs associated with the loss. He contends, without explanation, that this
case is like State v. Kisor, 68 Wash. App. 610, 844 P.3d 1038 (1993). In Kisor, the
defendant shot a police dog. Id. at 612-13. The restitution award was based upon
an affidavit, which contained the declaration of a county risk manager estimating
the costs associated with purchasing a new animal and training it. ]<± at 620. The
Kisor court concluded that the affidavit was not substantial credible evidence,
because there was no indication of where the risk manager obtained the figures.
Here, by contrast, the court had much more evidence than an
unsubstantiated affidavit. A review of the record indicates that the juvenile court
considered Oliver's loss claim, HomeSite's accounting and subsequent payment
of Oliver's claim, and testimony from Oliver at the restitution hearing about how he
obtained his estimates. The evidence provided in the restitution hearing is more
similar to what was provided to and found to be sufficient by the juvenile court in
Bennett.
In Bennett, the victim provided the juvenile court a list of stolen items along
with insurance company worksheets to prove the amount of damages. 63 Wn.
App. at 535. The Bennett court found that evidence sufficient and specifically
noted, " 'We perceive no reason to question the reliability of the insurance
company's accounting of [the victim's] loss, given an insurer's strong financial
interest in not overpaying claims.'" Id. at 535 n.4.
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No. 72698-6/9
Here, although the policy limits on Oliver's home insurance reduced the
amount Homesite was able to pay Oliver, Homesite reviewed each claimed item
and provided an actual cash value loss for each claimed item. With the exception
of deducting for depreciation on a few items, Homesite accepted all of Oliver's
estimated cash values when calculating the actual cash value loss.
This evidence provided a reasonable basis to establish loss. Thus, even if
the juvenile court had awarded Oliver all of the damages accepted by Homesite in
its accounting, E.B.G. fails to show that the juvenile court would have abused its
discretion. But, here, the juvenile court exercised its discretion and elected to
require more than just the insurance documentation to substantiate Oliver's claim
regarding the $2,000 loan, the $5,200 in cash unemployment benefits, and the
replaced car keys. And, without the extra documentation it denied restitution for
those claims. It also exercised its discretion by ordering restitution in a lower
amount for the lion's head ring.
E.B.G. argues that the discrepancy in the value of the lion's head ring along
with Oliver's refusal to substantiate his assertions means that the juvenile court
should have questioned Oliver's veracity with regard to the value of the other stolen
items too. In so arguing, E.B.G. implies that the juvenile court erred when it
concluded that the evidence was sufficient for only certain items. E.B.G. provides
no support for his assertion that the juvenile court abused its discretion when it
elected to require additional substantiation for some items and not others.
Moreover, although Oliver's testimony led the juvenile court to question the
No. 72698-6/10
evidence as to some of the items, the court clearly found Oliver's testimony—
combined with the insurance documentation—about his estimates credible as to
the remaining items. Credibility determinations are for the trier of fact and cannot
be reviewed on appeal. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850
(1990).
E.B.G. also argues that the juvenile court erroneously shifted the burden of
proof to E.B.G. to disprove the State's restitution claim. While it was making its
oral ruling, the court stated, "Also, I had no controverting evidence from either of
the respondents saying we didn't take this stuff, which of course would come down
to a pure credibility call."
E.B.G. argues that this was an improper application of the law, because the
State bears the burden of proving restitution by a preponderance of the evidence.
E.B.G. cites to State v. Dedonado. 99 Wash. App. 251, 256-57, 991 P.2d 1216 (2000)
to support his assertion. But, Dedonado is distinguishable. There, the trial court
concluded that the State did not meet its burden of proving the restitution amounts
by a preponderance of the evidence, because the documentation it provided did
not establish a causal connection between the defendant's actions and the
damages. Id. at 257.
Here, at the restitution hearing, the defendants focused their argument on
whether the State carried its burden as to the value of the items, not whether there
was a connection between the burglary and the loss or damage to Oliver's
property. Thus, rather than shifting the burden away from the State, the juvenile
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No. 72698-6/11
court was merely commenting that whether the losses were related to the crime
charged had not been controverted. The only question before itwas the sufficiency
of the evidence as to the value of Oliver's losses. In fact, the juvenile court
ultimately concluded that the "State has carried its burden with respect to the vast
majority of [the] items." The juvenile court did not erroneously shift the burden of
proof.
We affirm.
WE CONCUR:
^b/K.J.
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