State Of Washington, Res. v. Gregory William Waters, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 69932-6-1
Respondent,
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GREGORY WATERS, UNPUBLISHED OPINION -o m,
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Appellant. FILED: April 28, 2014 -"' ~x> m
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Verellen, A.C.J. —An instruction on a lesser included offense is properlycoivefgs
where there is affirmative evidence supporting an inference that only the lesser offense
was committed to the exclusion of the charged offense. Here, the State presented
affirmative evidence that Gregory Waters claimed he obtained permission to scrap
property from a person he knew did not own that property. Viewed in the light most
favorable to the State, this evidence supported an inference that Waters committed only
second degree trafficking in stolen property, a lesser included offense of first degree
trafficking in stolen property. Therefore, the trial court did not abuse its discretion in
instructing the jury on the lesser included offense. Additionally, the trial court did not
abuse its discretion in ordering Waters to pay restitution based upon the original cost of
the stolen property. We affirm.
No. 69932-6-1/2
FACTS
Zach Waters and Kerri Uitbenhowen rented a home in Sedro-Woolley. The
property included a barn where Zach1 and Uitbenhowen were allowed to store things.
The owners of the property, the Holtcamps, also stored approximately 300 cattle guards
in the barn, left over from when they operated a dairy farm on the property.
Zach and Uitbenhowen went on vacation. When they returned, they believed
someone had entered their home and they noticed that all of the cattle guards from the
barn were missing. Uitbenhowen called the police.
An investigation led to Waters, Zach's father. He was charged by amended
information with one count of theft in the second degree, one count of possessing stolen
property in the second degree, one count of residential burglary, one count of burglary
in the second degree, and one count of first degree trafficking in stolen property.
At trial, Brian Parberry, owner of Scrap-It Metal Recycling, testified that Waters
scrapped a load of cattle guards on October 17, 2011, and that Parberry paid Waters
$279.30. The trial court admitted photos of the load brought to Scrap-It by Waters on
that date. Thomas Holtcamp, the owner of the cattle guards, testified that, based on the
pictures, Waters scrapped approximately 50 of his cattle guards.
Zach testified that Waters had asked if he could scrap the cattle guards and that
he said, "[N]o, it wasn't mine to give him permission."2 Uitbenhowen testified that
Waters never asked her if he could have the cattle guards and she never gave him
permission to take them. Officer Dan Luvera testified that he talked to Waters during
1 For ease of reference, we refer to Zach Waters by his first name and his father,
appellant Gregory Waters, by his last name.
2 Report of Proceedings (RP) (Oct. 24, 2012) at 43.
No. 69932-6-1/3
his investigation and that Waters indicated that Uitbenhowen had asked him to scrap
the cattle guards and split the profit with her. Waters did not testify.
Over Waters' objection, the trial court instructed the jury on second degree
trafficking in stolen property, the lesser included offense of first degree trafficking in
stolen property. The jury returned a verdict of not guilty on every original count, but
found Waters guilty of the lesser included offense, second degree trafficking in stolen
property. As a result of a contested restitution hearing, the trial court ordered Waters to
pay $1,750 in restitution for the stolen cattle guards.
Waters appeals.
DISCUSSION
Lesser Included Offense Instruction
Waters argues that the trial court erred when it instructed the jury on second
degree trafficking in stolen property, the lesser included offense for first degree
trafficking in stolen property. Specifically, he argues that the instruction was not proper
because there was no affirmative evidence that he recklessly sold the stolen cattle
guards. We disagree.
In Washington, the right to a lesser included offense instruction is statutory.3 A
party is entitled to an instruction of a lesser included offense if two conditions are met.4
First, under the legal prong of the test, each element of the lesser offense must be a
necessary element of the charged offense.5 Second, under the factual prong, the
3 RCW 10.61.006 ("In all other cases the defendant may be found guilty of an
offense the commission of which is necessarily included within that with which he or she
is charged in the indictment or information.").
4 State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978).
5 State v. Berlin, 133 Wash. 2d 541, 545-46, 947 P.2d 700 (1997) (citing id).
No. 69932-6-1/4
evidence presented in the case must support an inference that only the lesser offense
was committed to the exclusion of the charged offense.6
Waters does not dispute that the legal prong of the test is satisfied in this case.
The issue is whether the factual prong is satisfied.
We view the evidence that purports to support a requested instruction in the light
most favorable to the party who requested the instruction at trial.7 When deciding
whether or not an instruction should be given, we must consider all of the evidence that
is presented at trial.8 It is not enough that the jury might simply disbelieve the State's
evidence.9
Where a trial court's decision to give an instruction is based on the facts of the
case, we review this factual determination for abuse of discretion.10 A trial court abuses
its discretion when its decision is manifestly unreasonable or based upon untenable
grounds or reasons.11
In State v. Fernandez-Medina, our Supreme Court addressed whether the trial
court properly refused to give an instruction on the lesser included offense of second
degree assault.12 In that case, Fernandez-Medina fired several shots into an apartment
and pointed his gun at one victim's head.13 Witnesses then heard a click, but no bullet
6 State v. Fernandez-Medina, 141 Wash. 2d 448, 455, 6 P.3d 1150 (2000).
7|d at 455-56.
8 jd at 456.
9ld
10 State v. LaPlant, 157 Wash. App. 685, 687, 239 P.3d 366 (2010).
11 State v. Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255 (2001).
12 141 Wash. 2d 448, 449-50, 6 P.3d 1150 (2000).
13 Id. at 451.
No. 69932-6-1/5
discharged. The defendant was charged with attempted murder or, in the alternative,
assault in the first degree.14 Based on evidence that a gun can make various sounds
without pulling the trigger, Fernandez-Medina requested a jury instruction for second
degree assault, the lesser included charge, which did not include intent to do serious
bodily harm.15 The Supreme Court held that he was entitled to the instruction because
the testimony given by gun experts supported an inference that he had not pulled the
trigger and, therefore, committed only the lesser included offense of second degree
assault.16
Under RCW 9A.82.050(1), first degree trafficking in stolen property requires proof
that the defendant "knowingly initiates, organizes, plans, finances, directs, manages, or
supervises the theft of property for sale to others" or "knowingly traffics in stolen
property." In contrast, under RCW 9A.82.055(1), second degree trafficking in stolen
property requires proof that the defendant "recklessly" traffics in stolen property.
Criminal recklessness requires that a person "knows of and disregards a substantial risk
that a wrongful act may occur."17 To resolve whether the factual prong is satisfied, we
must determine whether there was evidence affirmatively establishing that Waters
committed only the lesser offense, second degree trafficking in stolen property.18
Here, there was affirmative evidence that Waters acted recklessly in scrapping
the cattle guards. Officer Luvera testified that during his investigation, he asked Waters
14 id
15 id at 452.
16 id at 456-57.
17RCW9A.08.010(1)(c).
18 See Fernandez-Medina, 141 Wash. 2d at 456.
No. 69932-6-1/6
to explain how he obtained the cattle guards and why he sold them to Scrap-It. Officer
Luvera described Waters' response for the jury:
He said that he got a call from [Uitbenhowen], and [Uitbenhowen] wanted
him to scrap some material that was on the property that they were
residing at. And that it's my understanding that the monies that [Waters]
would get from scrapping the material would be split between he and
[Uitbenhowen].1191
Based upon this evidence, the jury could rationally find that Waters had permission from
Uitbenhowen to scrap the cattle guards. Drawing all inferences in favor of the State, as
we must, there was affirmative evidence that Waters knew Uitbenhowen was renting the
property and the cattle guards did not belong to her. Waters argues that Officer
Luvera's testimony only affirmatively shows that he had permission to scrap the cattle
guards and, therefore, negates any inference that he recklessly sold stolen property.
But the jury could have reasonably found that Waters acted recklessly by selling the
cattle guards without obtaining permission from the true owners, the Holtcamps.
It is true that, in order to find Waters guilty of second degree trafficking in stolen
property, the jury must necessarily have disbelieved Zach and Uitbenhowen's testimony
that they did not give Waters permission to scrap the cattle guards. But that was not the
only evidence presented by the State. The affirmative evidence provided by Officer
Luvera supports an inference that Waters acted recklessly, as required for second
degree trafficking in stolen property.
Restitution
Waters argues that the trial court abused its discretion by awarding restitution
exceeding the scrap value of the cattle guards. We disagree.
19RP(Jan. 8, 2013) at 122.
No. 69932-6-1/7
"A court's authority to order restitution is derived solely from statute."20 A judge
must order restitution whenever a defendant is convicted of an offense that results in
loss of property.21 The amount of restitution awarded must be based "'on easily
ascertainable damages.'"22 While the claimed loss "'need not be established with
specific accuracy,' it must be supported by 'substantial credible evidence.'"23 "'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. 24 The State must
prove the damages by a preponderance of the evidence.25 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.26 "A court abuses its
discretion only when its order is manifestly unreasonable or untenable."27 It is not an
abuse of discretion to utilize replacement value instead of fair market value.28
Here, the trial court observed that the owner could benefit from having cattle
guards available for a sale of the barn for use as a dairy. The court calculated the total
20 State v. Gonzalez, 168 Wash. 2d 256, 261, 226 P.3d 131 (2010).
21 RCW 9.94A.753(5).
22 State v. Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506 (2008) (quoting
RCW 9.94A.753(3)).
23 id (quoting State v. Fleming, 75 Wash. App. 270, 274-75, 877 P.2d 243 (1994),
overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546,
165 L Ed. 2d 466 (2006)).
24 Id. (Quoting State v. Hughes, 154Wn.2d 118, 154, 110P.3d 192(2005),
abrogated on other grounds by Recuenco, 548 U.S. at 212).
25 id
26 State v. Gray, 174 Wash. 2d 920, 924, 280 P.3d 1110 (2012).
27 id
28 See State v. Smith, 42 Wash. App. 399, 401, 711 P.2d 372 (1985) (restitution not
limited to "only the fair market value, not the replacement cost, of the items stolen and
later recovered and sold").
No. 69932-6-1/8
restitution due by multiplying the approximate number of cattle guards scrapped by the
average original cost per cattle guard. Holtcamp testified that, based on the photograph
of Waters' truck at Scrap-It, Waters scrapped approximately 50 of the Holtcamps' cattle
guards. Additionally, Holtcamp completed a victim loss statement where he indicated
that the original price of the cattle guards ranged from $30 to $42 each. Based upon
this evidence, the trial court found that Waters scrapped 50 cattle guards with an
average value of $35 each, resulting in total restitution due of $1,750.
Waters argues that this amount is an abuse of discretion because it does not
reflect the fair market value of the cattle guards, which he argues equals the scrap value
of $279.30. But Waters cites no authority requiring restitution to be based on fair
market value.29 Because the amount awarded was easily ascertainable, supported by
the record, and consistent with the concept of replacement value, the trial court did not
abuse its discretion.
Waters argues that the restitution amount must consider depreciation of the
asset, citing State v. Wilson.30 He also argues that a restitution award must be based
on the proceeds of sale at the time of the loss, citing State v. A.N.W. Seed
Corporation.31 But neither of these cases involved an award of restitution in the context
of a criminal trial. They are not persuasive.
29 Waters cites Fleming, 75 Wash. App. at 275, for the premise that restitution is
generally related to fair market value. But Fleming does not support an argument that
restitution is limited to fair market value only.
30 6 Wash. App. 443, 493 P.2d 1252 (1972).
31 116 Wash. 2d 39, 802 P.2d 1353 (1991).
8
No. 69932-6-1/9
Waters argues that there was not testimony about the value of the cattle guards
other than their value as scrap metal. This is not true. Holtcamp testified that he paid
approximately $30 each for the cattle guards in the mid-1990s.
Finally, Waters argues that the Sixth Amendment bars the trial court from
imposing restitution based on a loss not found by the jury. But in State v. Kinneman,
our Supreme Court held that there is no right to a jury trial to determine facts on which
restitution is based.32 Waters cites no authority that restitution awards require jury
findings regarding the scope and amount of the victim's loss. His attempt to distinguish
Kinneman on this point is not persuasive.
Affirmed.
WE CONCUR:
9*^7,
32 155 Wash. 2d 272, 282, 119 P.3d 350 (2005).