State Of Washington v. Scott Newcomb ( 2014 )

CIRRI. F APPEALS
2014 al 1 OE APB 8: 40
IN THE COURT OF APPEALS OF THE STATE OF WASHIi r i 1 ON
yO
DIVISION II
STATE OF WASHINGTON, No. 43578 -1 - II
Respondent, Consolidated with:
v. No. 44148 -9 -II
SCOTT ROSS NEWCOMB, UNPUBLISHED OPINION
Appellant.
LEE, J. — Scott Ross Newcomb appeals his conviction of first degree malicious mischief
and the related restitution award. Newcomb argues that the trial court violated his right to
confrontation by admitting photographs taken by a non -
testifying officer during his trial and by
considering estimates prepared by non -
testifying contractors during his restitution hearing.
Newcomb also argues that the trial court erred in calculating the amount of restitution imposed.
Because__
neither_the photographs_nor_the estimates triggered_Newcomb' s_ confrontation_rights,_
and because the trial court did not abuse its discretion by imposing restitution of almost double
the amount of the victim' s loss, we affirm.
FACTS
In 2005, Timothy Kredlo bought property in Pacific County. To access his property,
Kredlo needed to use an easement that crossed Newcomb' s adjoining property. Kredlo' s
predecessors in interest sued Newcomb and his mother to ensure that they did not interfere with
the easement, and the superior court issued a decree to prevent such interference.
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As a condition of Kredlo' s purchase, Daniel Bayne agreed to improve the existing road
on the easement. Bayne built a gravel road on the easement in July 2006, and charged Kredlo
12, 000 for the work. After the road' s completion, Kredlo encountered Newcomb, who told
Kredlo that he had bought a " sour lemon" because there was no vehicular access to his property.
Report of Proceedings ( RP) at 200; Clerk' s Papers ( CP) at 24. When Kredlo pointed out that he
had a recorded easement, Newcomb disputed its legality as well as the validity of the court order
barring his interference with the easement. He told Kredlo that he wanted to abandon the road
and return the easement to its natural condition.
On October 13, 2006, Kredlo returned to the property and saw Newcomb on a payloader
scraping gravel from the road. Kredlo observed that most of the gravel had been scraped away
from the road. He called the sheriff' s office, and Deputy Ryan Pearson came out to observe the
Souvenierl
damage that day. Pearson did not have a camera and asked Deputy Robin to take
photographs of the easement road on his way to work the following day.
On October 16, Kredlo returned to the property and found that the remaining gravel on
the easement road had been dug down and churned to a depth of two to three feet, and that three
large stumps had been placed where the road had been. Kredlo also saw tire tracks leaving the
road and leading to a gravel pile on Newcomb' s property. The easement road was impassable
for vehicular traffic.
1
Deputy Souvenier' s name is spelled two different ways in the record, Souvenier and Souvenir.
For purposes of this opinion we use the Souvenier spelling.
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The State charged Newcomb with first . degree malicious mischief. Newcomb
successfully moved to dismiss the resulting charge of first degree malicious mischief on the
ground that a person cannot maliciously damage his own property. The State appealed, and this
court reversed and remanded for trial. State v. Newcomb, 160 Wash. App. 184, 193, 246 P.3d
1286, review denied, 172 Wash. 2d 1005 ( 2011).
On remand, Newcomb agreed to a bench trial. The State introduced the photographs
through the testimony of Deputy Pearson, who testified that the photographs accurately
represented the easement when he saw it on October 13, 2006. Kredlo testified to the facts cited
above and Bayne testified that he gave Kredlo an estimate of about $ 7000 to repair the road
shortly after it was damaged. The trial court admitted his 2006 estimate, which set the repair
cost at $ 7263. 56.
The trial court found Newcomb guilty as charged and imposed a 45 -day sentence.
During the restitution hearing, the State submitted four additional repair estimates that ranged
from $9,378. 60 to $ 21, 484. 54. Kredlo also requested reimbursement for a travel trailer on his
property that he had purchased for $ 3500. The trailer was destroyed by mold because the road
damage prevented Kredlo from getting power to it.
The trial court ordered Newcomb to pay $ 13, 000 based on this explanation:
I' m imposing $ 13, 000. 00. I' m approaching it from the, I' m going to say
7, 500. 00 figure to repair and then I' m not quite doubling that. I' m going to go
up to $13, 000. 00 total so either way you cut it, it covers the expenses, but I' m not
making a finding on the trailer specifically. There' s too much grey area there.
But I am imposing a doubling up to $ 13, 000. 00 dollars which in effect awards the
same amount of money as if I did consider the trailer.
RP ( Oct. 5, 2012) at 16; Suppl. CP at 1.
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Newcomb appeals his conviction and the restitution award.
ANALYSIS
A. RIGHT TO CONFRONTATION
Newcomb argues that the trial court erred in admitting evidence that violated his
confrontation rights during both his trial and his restitution hearing. Newcomb did not challenge
the photographs or the estimates on this basis below, but we may address this issue for the first
time on appeal if it constitutes a manifest error affecting a constitutional right under RAP
2. 5( a)( 3). State v. Kronich, 160 Wash. 2d 893, 899 -01, 161 P.3d 982 ( 2007), overruled on other
grounds; State v. Jasper, 174 Wash. 2d 96, 116, 271 P.3d 876 ( 2012). To satisfy RAP 2. 5( a)( 3), an
appellant first must identify a constitutional error and then show how the alleged error affected
his rights at trial. State v. O' Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 ( 2009).
1. Photographs
Newcomb argues initially that the photographs of the road damage were testimonial
statements made by a non-testifying witness that were admitted in violation of his Sixth
Amendment right to confrontation. We disagree.
The Sixth Amendment' s confrontation clause gives an accused the right to confront the
witnesses against him. State v. Jasper, 174 Wash. 2d 96, 109, 271 P.3d 876 ( 2012). The central
function of this right is to protect individuals from the use of ex parte statements as evidence
against them in criminal trials. Crawford v. Washington, 541 U.S. 36, 50 -51, 124 S. Ct. 1354,
158 L. Ed. 2d 177 ( 2004). The confrontation clause bars the admission of testimonial hearsay
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statements of a witness who does not appear at trial, unless the witness is unavailable and the
defendant had a prior opportunity for cross -examination. Crawford, 541 U.S. at 53 -54, 68.
Newcomb does not cite, nor could we find, any authority that directly supports his
argument that photographs are testimonial statements. Instead, courts regard photographs as
demonstrative evidence, depicting what the camera sees. People v. Cooper, 148 Cal. App. 4th
731, 746, 56 Cal. Rptr. 3d 6 ( 2007), abrogated on other grounds by People v. Archuleta, 225
Cal. App. 4th 527, 170 Cal. Rptr. 3d 361, review filed (May 19, 2014); State v. Newman, 4 Wn.
App. 588, 593, 484 P.2d 473, review denied, 79 Wash. 2d 1004 ( 1971). They are not statements,
and they are not hearsay. Cooper, 148 Cal. App. 4th at 746; State v. Iverson, 126 Wash. App. 329,
340, 108 P.3d 799 ( 2005). Consequently, their admission in the absence of the photographer
does not trigger confrontation: clause concerns. See Cooper, 148 Cal. App. 4th at 746
confrontation clause did not preclude admission of part of videotape depicting condition of
victim' s residence); see also Sevin v. Jefferson, 621 F. Supp. 2d 372, 383 ( E.D. La. 2009)
photograph of vehicle taken by traffic camera was not testimonial statement that implicated
confrontation clause); United States v. Beach, 196 F. App' x. 205, 209 ( 4th Cir.) ( admission of
photographs of missing evidence did not violate confrontation clause), cert. denied, 549 U.S. 983
2006); Herrera v. State, 367 S.W.3d 762, 773 ( Tex. App. 2012) ( autopsy photograph is not
testimonial statement); People v. Myers, 87 A.D.3d 826, 829, 928 N.Y.S.2d 407 ( 2011)
photographs depicting victim' s injuries are demonstrative rather than testimonial evidence);
State v. Tillman, 289 S.W.3d 282,. 294 -95 ( Mo. App. 2009) ( photographs of victim' s body are
not testimonial).
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Here, the photographs themselves did not constitute testimonial statements; therefore,
their admission in the absence of the photographer was not error. The proper foundation for
photographs requires only that some witness, not necessarily the photographer, be able to give
some indication as to when, where, and under what circumstances the photograph was taken, and
that the photograph accurately portrays the subject illustrated. Newman, 4 Wn. App. at 593. We
reject this claim of constitutional error.
2. Repair Estimates
Newcomb argues next that the trial court violated his due process right to confront
adverse witnesses under the Fourteenth Amendment by considering unsworn and unsigned
estimates prepared by non -
testifying contractors during the restitution hearing. We disagree.
In making this argument, Newcomb tacitly concedes that his Sixth Amendment right to
confrontation does not extend to restitution hearings. See State v. Abd-Rahmaan, 154 Wash. 2d
280, 288, 111 P.3d 1157 ( 2005) ( confrontation clause of Sixth Amendment .applies to criminal
prosecutions and not to postconviction proceedings); see also United States v. Loreng, 956 F.
Supp. 2d 213, 222 n. 4 ( D. C. Dist. 2013) ( confrontation clause protections do not extend to
restitution proceedings); United States v. Faxon, 689 F. Supp. 2d 1344, 1356 ( S. D. Fla. 2010)
confrontation clause does not prohibit offer of hearsay at restitution hearing). As the Loreng
court explained, when the guilt of the accused has been properly established, the sentencing
judge is not restricted to evidence admitted during trial in determining the punishment to impose,
but may consider "`` responsible unsworn or `` out -
of court'
- information relative to the
circumstances of the crime. "'
956 F. Supp. 2d at 222 n.4 ( quoting Williams v. Oklahoma, 358
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U. S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 ( 1959)). Nothing in Crawford alters the pre-
Crawford law that the admission of hearsay testimony at sentencing does not violate
confrontation rights. Loreng, 956 F. Supp. 2d at 222 n.4 ( citing United States v. Bras, 483 F.3d
103, 109 ( D. C. Cir. 2007)).
Newcomb argues nonetheless that defendants have a due process right to confront
adverse witnesses during a restitution hearing unless the court finds good cause not to allow the
confrontation. As support, he cites the Abd-Rahmaan decision, which explained that this due
process right applies to parole revocation hearings because parole revocation involves the
potential deprivation of a conditional liberty. 154 Wash. 2d at 288 -89.
However, restitution involves no potential loss of liberty, and due process is
substantially relaxed" at a restitution hearing. State v. Fambrough, 66 Wash. App. 223, 226 -27,
831 P.2d 789 ( 1992). To satisfy due process during a restitution hearing, the defendant must
have an opportunity to refute the evidence presented, and the evidence must be reliable. State v.
Pollard, 66 Wash. App. 779, 784- 85, 834P. 2d 51, review denied, 120 Wash. 2d 1015 ( 1992).
Although the rules of evidence do not apply at restitution hearings, the evidence presented must
be sufficient to support a finding of restitution in the amount ordered. State v. Kisor, 68 Wn.
App. 610, 620, 844 P.2d 1038, review denied, 121 Wash. 2d 1023 ( 1993); Pollard, 66 Wash. App. at
784.
Newcomb had ample opportunity to refute the written estimates submitted, all of which
were from companies that repair roads. Furthermore, the trial court based its restitution award
on the 2006 estimate provided by Daniel Bayne, who testified and was cross -examined during
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trial. We reject Newcomb' s claim of constitutional error based on either due process or
confrontation grounds.
B. RESTITUTION AWARD
Newcomb raises two additional challenges to the restitution award. He first contends that
the trial court exceeded its statutory authority by awarding Kredlo an amount of restitution that
was almost double the amount established at the restitution hearing. He then contends that the
trial court abused its discretion by ordering $ 13, 000 in restitution after Kredlo suffered only
7, 500 in damages.
Newcomb argues that his first claim must be reviewed de novo because it involves a
question of statutory interpretation. Sound Infiniti, Inc. v. Snyder, 169 Wash. 2d 199, 206, 237 P.3d
241 ( 2010). The statute at issue is RCW 9. 94A.753, which provides in pertinent part as follows:
R] estitution ordered by a court pursuant to a criminal conviction shall be based
on easily ascertainable damages for injury to or loss of property, actual expenses
incurred for treatment for injury to persons, and lost wages resulting from injury. .
The amount of restitution shall not exceed double the amount of the offender' s
gain or the victim' s loss from the commission of the crime.
RCW 9. 94A.753( 3).
Newcomb argues that the plain language of this provision prohibits a court from simply
doubling the restitution amount and, thereby, granting the victim a windfall. See Seashore Villa
Ass 'n v. Huggland Family Ltd. P' ship, 163 Wn. App. 531, 538 -39, 260 P.3d 906 ( 2011) ( statute
must be construed according to its plain language if that language is subject to only one
interpretation), review denied, 173 Wash. 2d 1036 ( 2012). Newcomb argues that the doubling
language in RCW 9. 94A. 753( 3) applies only when the court compensates third parties in
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addition to the victim, so long as the total award does not exceed double the victim' s loss. See
State v. Davison, 116 Wash. 2d 917, 921 -22, 809 P.2d 1374 ( 1991) ( interpreting " victim" within
meaning of restitution statute to include city that paid wages to assault victim while he could not
work).
The plain language of RCW 9. 94A. 753( 3) does not support Newcomb' s interpretation
because it makes no reference to third -
party recovery. Moreover, the Washington Supreme
Court has interpreted the language of RCW 9. 94A.753( 3) without the restriction that Newcomb
asserts:
The plain language of the restitution statute allows the trial judge to order
restitution ranging from zero in extraordinary circumstances, up to double the
offender' s gain or the victim' s loss.... We do not engage in overly technical
construction that would permit the defendant to escape from just punishment.
The legislature intended " to grant broad powers of restitution" to the trial court.
State v. Tobin, 161 Wash. 2d 517, 524, 166 P.3d 1167 ( 2007) ( quoting Davison, 116 Wash. 2d at 920,
922).
As the Supreme Court has further explained, restitution is allowed only for losses that are
causally connected to the crimes charged, and a causal connection exists if, but for the charged
crime, the victim would not have incurred the loss. State v. Griffith, 164 Wash. 2d 960, 965 -66,
195 P.3d 506 ( 2008). Once the amount of the victim' s loss is established, the court has
discretion to order restitution up to double that amount. Griffith, 164 Wash. 2d at 966. We reject
Newcomb' s argument that the trial court exceeded its statutory authority by awarding almost
double the amount of Kredlo' s loss.
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Moreover, we see no abuse of discretion in the trial court' s decision to order $ 13, 000 in
restitution. Evidence supporting restitution 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 Wash. 2d at 965.
The evidence submitted at Newcomb' s restitution hearing provided a reasonable basis for
estimating Kredlo' s loss. The trial court' s resulting order was based not on speculation but on
five repair estimates, the lowest of which was from a contractor who testified at Newcomb' s trial
and the highest of which far exceeded the amount of restitution ordered. The trial court did not
abuse its discretion by ordering Newcomb to pay restitution of almost double the amount of the
lowest repair estimate.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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