State Of Washington, Resp. v. Jonathan Strong, App. ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68504-0-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
JONATHAN MICAH STRONG,
Appellant. FILED: June 17, 2013
Schindler, J. — Jonathan Micah Strong pleaded guilty to possession of a stolen
vehicle and agreed to pay for all damages to the motorcycle. Strong contends the
restitution ordered by the court is not causally connected to the crime. Because the
documentation establishes a causal connection for the amount of restitution, we affirm.
FACTS
In October 2010, Michael Rice reported that his 1999 Kawasaki motorcycle had
been stolen. In December, a confidential informant told the police that Jonathan Micah
Strong had a stolen motorcycle at his home in Federal Way. On December 28, the
police executed a search warrant and found Rice's stolen 1999 Kawasaki Ninja ZX900
900cc motorcycle.
No. 68504-0-1/2
The State charged Strong with possession ofa stolen vehicle.1 Strong entered
into a plea agreement. Strong agreed to plead guilty and pay restitution "for all damage
to [the] stolen motorcycle" in an amount to be determined. Strong stipulated that for
purposes of sentencing, the court could consider as "real and material facts" the facts
set forth in the certification for determination of probable cause.
The certification for probable cause states that Jeremy Allen Ulrich agreed to
steal a motorcycle for Strong. Strong planned to purchase a wrecked motorcycle of the
same year, make, and model and then rebuild it with parts from the stolen motorcycle.
Strong and Ulrich located a 1999 Kawasaki Ninja motorcycle with blue and white-
colored flame graphics on the front fairings two or three miles away from Strong's house
in Federal Way.2 When Ulrich had trouble starting the motorcycle, Strong "broke out"
the ignition and Ulrich drove the motorcycle to Strong's garage. The certification states
that Strong and Ulrich scraped the blue and white-colored flames off the front fairing.
The police were "able to start the motorcycle by inserting a screwdriver into the
bored out ignition [and] pushing the handle-mounted start button." The certification
states that Rice came to Strong's house to take possession of the Kawasaki and told
the police that "his ignition and lower right fairing now have damage" that did not exist
before his motorcycle was stolen.
Before the restitution hearing, the State submitted a "Stolen Vehicle Worksheet"
(Worksheet) signed by Rice under penalty of perjury. Attached to the Worksheet is his
1In the same information, the State charged Jeremy Allen Ulrich with possessing stolen property
in the second degree.
2A"fairing" is a structure intended "to produce a smooth outline and to reduce drag or head
resistance." Webster's Third New International Dictionary 816 (2002); see also Dunn v. Wixom
Bros., 493 So. 2d 1356, 1358 (Ala. 1986) ("A fairing is a device which is attached to the front of a
motorcycle to deflectwind and rain away from the rider. It can be attached either to the frame of the
motorcycle itself, or to the front fork or handlebars of the motorcycle.").
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"Victim Impact Statement" and an estimate for repairs totaling $7,637.79 prepared by
Puget Sound Motorcycles. In the Worksheet, Rice describes the damages to the
motorcycle from the crime as: "All cowling/fairings[3] scratched from being laid down[,]
some are broken, paint chipped off of tank, foot pegs are losing the rubber from being
put on its side, engine covers scratched up." In his Victim Impact Statement, Rice
states that before the motorcycle was stolen, it was "like new" and "ran great," but now
"it runs rough."
My bike was like new, ran great[,] no scratches, I had bought it from
my cousin. Now there are panels hanging off, my tach/speed-ometers
don't work, it runs rough. I love my bike like a child[,] take great care of it,
and to see the damage and not be able to ride it this summer was totally
devastating to me. My bike was discontinued after 2000, they changed it
to the ZX10 and you don't see the ZX9's around very much, so I think it[']s
unique in that it's not a 600 or 1,000 cc bike (like everyone has). I just
want my bike the way it was, that[']s it.
The two-page estimate of repairs includes the cost to repair or replace the
ignition and upper front fairing as well as other parts of the motorcycle, such as the
mirrors, windshield, cowlings, footpegs, driver's seat, generator and clutch covers,
voltage regulator, rear brake pads, muffler, fuel tank, and fuel tank decal.
Strong argued the documentation did not establish a causal connection between
all of the damages in the estimate and his crime. Strong argued the facts set forth in
the certification for determination of probable cause did not support restitution for all the
damages in the estimate.4
3A"cowling" is "a metallic cover over or around any engine." Webster's Third New
International Dictionary 526 (2002).
4Strong also argued the State failed to establish the amount of restitution by a preponderance of
the evidence because the estimated cost of repairs exceeded the value of the motorcycle. Strong
submitted copies of advertisements showing prices for similar motorcycles in support.
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The sentencing court concluded the evidence established a causal connection
between the crime and all of the damages to the motorcycle, and entered an order of
restitution for $7,637.79.5
ANALYSIS
Strong concedes he is responsible for the damage to the missing license, the
ignition, and from scraping the graphics off the front fairing. Strong contends the court
erred in ordering restitution for all of the damages identified in the Worksheet because
the State did not prove a causal connection between the damages the victim sought
and the crime.
The authority to impose restitution is entirely statutory. State v. Tobin, 161
Wash. 2d 517, 523, 166 P.3d 1167 (2007). Under RCW 9.94A.753, the court shall order
restitution "whenever the offender is convicted of an offense which results in . . .
damage to or loss of property." RCW 9.94A.753(5). Restitution "is allowed only for
losses that are 'causally connected' to the crimes charged." Tobin, 161 Wash. 2d at 524.
That is, "but for" the defendant's criminal acts, the damages for which the State seeks
restitution would not have occurred. Tobin, 161 Wash. 2d at 524, 527; State v. Landrum,
66 Wash. App. 791, 799, 832 P.2d 1359 (1992) (interpreting similar restitution statute).
We will not disturb a sentencing court's order of restitution absent abuse of
discretion. Tobin, 161 Wash. 2d at 523. A court abuses its discretion when the restitution
decision is manifestly unreasonable or exercised on untenable grounds or for untenable
reasons. State v. Enstone, 137 Wash. 2d 675, 679-80, 974 P.2d 828 (1999). Application
5The order of restitution states that restitution is a joint and several obligation with Ulrich under
King County SuperiorCourt Cause No. 11-C-06906-7 if he is convicted and ordered to pay under a
separate order.
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of an incorrect legal analysis or other error of law can constitute abuse of discretion.
Tobin, 161 Wash. 2d at 523.
In determining whether this causal connection exists, the court can consider
those facts admitted in the plea agreement or admitted, acknowledged, or proved at the
restitution hearing. State v. Dedonado, 99 Wash. App. 251, 256, 991 P.2d 1216 (2000).
"Absent agreement from the defendant as to the amount of restitution, the State must
prove the amount by a preponderance of the evidence." Tobin, 161 Wash. 2d at 524.
Here, Strong argues the State did not prove a causal connection between all of
the damages identified in the estimate attached to the Worksheet and the crime. There
is no dispute Strong agreed to pay for all damages to the motorcycle in an amount to be
determined. The documentation submitted before the restitution hearing, as well as the
certification, supports a causal connection between the crime and the restitution the
court ordered. The State submitted documentation to support the request for the
repairs to the motorcycle. In the Worksheet, Rice states under penalty of perjury that all
the damages described on the Worksheet and attached estimate were incurred "as a
result of the crime investigated under the above cause number."6 Rice also states that
before the crime, the motorcycle was "like new," "ran great," and had "no scratches," but
after Strong's possession of the motorcycle, it "runs rough" with damaged parts,
including "panels hanging off' and "tach/speed-ometers [that] don't work."
Dedonado is distinguishable. In Dedonado, the defendant Dedonado burglarized
an electronics shop and stole a van. Dedonado, 99 Wash. App. at 253. Dedonado
pleaded guilty to the crime oftaking a motor vehicle without permission. Dedonado, 99
Wash. App. at 253. The State sought restitution for a damaged generator that the
(Emphasis added.)
No. 68504-0-1/6
electronics shop owner replaced with a new generator and the cost to repair the van.
Dedonado. 99 Wash. App. at 253. Dedonado objected to restitution for the generator,
arguing that the "Property Restitution Estimate" did not establish the replacement
generator was comparable in cost or function to the damaged generator. Dedonado. 99
Wash. App. at 253. Dedonado also objected to the documentation of the repair costs for
the van, arguing the mechanic's preliminary repair estimate for damage to the van
included items such as " 'DOME LAMP BULBS,' 'FILL ALL FLUIDS,' 'ALIGN FRONT
SUSPENSION,' and 'REMOVE/REPLACE R LIFTGATE GRILLE'" that were not
causally connected to Dedonado's crime. Dedonado. 99 Wash. App. at 255. We held that
the State did not provide sufficient documentation to support the request for the
replacement generator or that the repairs to the van were causally related to the
damage to the ignition switch. Dedonado, 99 Wash. App. at 257.
Strong relies on the statement in Dedonado that "[a] causal connection is not
established simply because a victim or insurer submits proof of expenditures for
replacing property stolen or damaged by the person convicted," to argue the State did
not provide sufficient documentation of a causal connection. Dedonado. 99 Wash. App. at
257. But unlike in Dedonado where the State relied solely on a mechanic's estimate to
prove the damages to the van, here, the State also introduced Rice's sworn Worksheet
and his Victim Impact Statement stating that the motorcycle had been "like new" before
the crime, but now "runs rough" and, as a result of the crime, required all the repairs
identified on the estimate.
The other cases Strong relies on, State v. Kisor. 68 Wash. App. 610, 844 P.2d
1038 (1993), and State v. Pollard, 66 Wash. App. 779, 834 P.3d 51 (1992), are also
No. 68504-0-1/7
distinguishable. In Kisor. the defendant challenged the cost to purchase and train a
police dog, not the causal connection between his crime and the claimed damages.
Kisor. 68 Wash. App. at 619-20. 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 Wash. App. at 786. We concluded that, standing alone, the double
hearsay was an insufficient basis upon which to base restitution. Pollard, 66 Wash. App.
at 786. Here, unlike in Pollard. Strong agreed to the facts in the certification and the
State submitted documentation from Rice submitted under penalty of perjury.
We affirm.
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WE CONCUR:
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