State Of Washington v. Michael Sayers ( 2014 )

The Court ofAppeals
of the DIVISION I
richard d. johnson,
Court Administrator/Clerk
State of Washington
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600 University Street
OdUlUH 98101-4170
(206)464-7750
March 10, 2014 TDD: (206)587-5505
Prosecuting Atty King County Kelsey K Schirman
W554 King County Courthouse 516 3rd Ave Ste W554
516 Third Avenue Seattle, WA, 98104-2362
Seattle, WA, 98104 Kelsey.Schirman@kingcounty.gov
paoappellateunitmail@kingcounty.gov
Nielsen Broman Koch Pile Jennifer J Sweigert
Attorney at Law Nielsen Broman &Koch PLLC
1908 E Madison St 1908 E Madison St
Seattle, WA, 98122 Seattle, WA, 98122-2842
Sloanej@nwattorney.net SweigertJ@nwattorney.net
CASE #: 69544-4-I
State of Washington. Respondent v. Michael Savers. Appellant
King County, Cause No. 10-1-05793-1.KNT
Counsel:
Enclosed is a copy ofthe opinion filed in the above-referenced appeal which states in part:
"Accordingly, we affirm the order of restitution."
Counsel may file a motion for reconsideration within 20 days of filing this opinion pursuant to RAP
12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to seek review by
the Supreme Court, RAP 13.4(a) provides that if no motion for reconsideration is made, a petition for
review must be filed in this court within 30 days.
In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost
bill filed and served within ten days after the filing ofthis opinion, or claim for costs will be deemed
waived.
Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to publish
should be served and filed within 20 days ofthe date offiling the opinion, as provided by RAP 12.3 (e).
Sincerely,
Richard D. Johnson
Court Administrator/Clerk
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Enclosure
c: The Honorable Patrick Oishi
Michael Lane Sayers
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 69544-4-1
Respondent,
v.
MICHAEL LANE SAYERS, UNPUBLISHED OPINION
Appellant, FILED: March 10,2014
Verellen, J. — As part of his plea agreement, Michael Sayers agreed to pay
restitution for all losses from and damages to a stolen excavator. Because the
State's evidence supporting the actual loss for the excavator was based on easily
ascertainable damages and proved by a preponderance of the evidence, the trial
court did not abuse its discretion in awarding restitution for the loss. Accordingly, we
affirm the order of restitution.
In December 2009, the owner of a truck and excavator reported those vehicles
stolen. The owner received reimbursement for the value of the excavator from his
insurance company in the amount of $19,197. In June 2010, police discovered that
Sayers possessed several pieces of stolen property, including the truck and the
excavator. An uncut key had been used to start the excavator, there was damage to
the access panel and the ignition, and the owner's logo had been painted over.
No. 69544-4-1/2
The State charged Sayers with possession of a stolen vehicle and possession
of stolen property in the first degree. The charge of possession of stolen property
encompassed Sayers' possession of the excavator. As part of a plea agreement,
Sayers pleaded guilty to an amended charge of taking a motor vehicle without
permission in the second degree. He also agreed to pay restitution for "all losses
from and damages to the stolen truck, the stolen excavator, and their contents."1 In
return for the reduced charge, the State agreed not to file additional property crimes
against the defendant arising out of the same incident.
The court held a contested restitution hearing. The State asked that restitution
be granted to Safeco Insurance Company in the amount of $10,749.50. This was
calculated by subtracting the amount Safeco received when it sold the excavator as
salvage ($8,447.50) from the amount it paid on the claim ($19,197.00) The trial court
noted that the amount Safeco paid to the owner was based on the value of
comparable excavators.
The trial court found that the State proved by a preponderance of the evidence
that Safeco's actual loss was $10,749.50. It then ordered restitution to Safeco in that
amount.
The sole issue on appeal is whether the trial court abused its discretion in
awarding $10,749.50 in restitution to Safeco. Sayers argues that the amount of
restitution is unreasonable because it is not supported by the evidence and it was not
causally connected to his crime. We disagree.
1Clerk's Papers at 26.
No. 69544-4-1/3
"A court's authority to order restitution is derived solely from statute."2 Ajudge
must order restitution whenever a defendant is convicted of an offense that results in
loss of property.3 Generally, restitution is permitted only for losses that are causally
connected to the charged crimes.4 But if the defendant expressly agrees to pay
restitution for crimes for which he was not convicted, restitution properly extends to
the agreed items.5
The amount of restitution must be based "on easily ascertainable damages."6
While the claimed loss need not be established with specific accuracy, it must be
supported by substantial credible evidence.7 "'Evidence supporting restitution is
sufficient if it affords a reasonable basis for estimating loss and does not subject the
trier offact to mere speculation or conjecture.'"8 The State must prove the damages
by a preponderance of the evidence.9
2State v. Gonzalez, 168 Wn.2d 256, 261, 226 P.3d 131 (2010).
3RCW 9.94A.753(5).
4State v. Griffith, 164 Wn.2d 960, 965-66, 195 P.3d 506 (2008) (quoting State
v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007)).
5 Id, (quoting State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998)).
6 Id, (quoting RCW 9.94A.753(3)).
7 \± (quoting State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243(1994)).
8 Id. (internal quotation marks omitted) (quoting State v. Hughes, 154 Wn.2d
118, 154, 110P.3d 192(2005)).
9 Id.No. 69544-4-1/4
A decision to impose restitution is generally within the discretion of the trial
court, and the size of the award will not be disturbed on appeal absent an abuse of
discretion.10 "A court abuses its discretion only when its order is manifestly
unreasonable or untenable."11
Here, Sayers' agreement to pay "all losses from and damages to . .. the
stolen excavator" supports the restitution award, whether or not causally related to
the charged crimes.12 The amount of Safeco's loss is the difference between the
$19,197.00 Safeco paid to its insured and the $8,447.50 Safeco received when it
sold the excavator as salvage. Safeco's net loss of $10,749.50 is supported by the
record.
Sayers argues that the excavator was in the same condition when it was
recovered except for "minor" damage. He contends the award was an abuse of
discretion because either the "fair market value" Safeco paid to the owner was
inflated or the salvage value it received when it sold the excavator was unreasonably
low. But the fair market value paid to the owner is supported by the comparable
values documented by Safeco. And the damaged excavator was sold for salvage by
Safeco six months after it was stolen. It was within the discretion of the trial court to
conclude that Safeco, driven by a profit motive, neither overpaid its insured nor failed
10 State v. Gray, 174 Wn.2d 920, 924, 280 P.3d 1110 (2012).
11 jd
12 Clerk's Papers at 26; Griffith, 164 Wn.2d at 965-66. Sayers argues that
State v. Dedonado, 99 Wn. App. 251, 991 P.2d 1216 (2000) requires more than
submitting proof of the expenditures to replace stolen property. ]d\ at 257. But unlike
here, a causal connection was necessary because Dedonado did not specifically
agree to replace the damaged property as part of his plea agreement. Id. at 253.
Therefore, Dedonado is distinguishable.
No. 69544-4-1/5
to maximize its return on the damaged excavator. The $10,749.50 net loss suffered
by Safeco is not the result of speculation or conjecture. The amount of the restitution
award was adequately supported by the record and was within the discretion of the
trial court.
Affirmed.
WE CONCUR:
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