No. 20355-7-III.The Court of Appeals of Washington, Division Three. Panel Eight.
Filed: August 6, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 001024691, Hon. James M. Murphy, June 13, 2001, Judgment or order under review.
Counsel for Appellant(s), Cece L. Glenn, Attorney At Law, Attorney At Law, W 1309 Dean Ste 100, Spokane, WA 99201-2014.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.
FRANK L. KURTZ, J.
Ronald Blocher was convicted of first degree possession of stolen property and ordered to pay restitution in the amount of $10,212.35. On appeal, he contends the evidence was insufficient to support the element of knowing possession. He also asserts the court erred by imposing a restitution requirement absent a causal relationship between the crime charged and the losses incurred by the owner of the stolen property. We affirm Mr. Blocher’s conviction. We order that Mr. Blocher’s restitution order is reduced by $403.56, the value of personal property for which there is no causal relationship between Mr. Blocher’s possession of the stolen property and the victim’s losses. In all other respects, we affirm Mr. Blocher’s restitution order.
FACTS
Mr. Blocher was charged by information with one count of possession of stolen property. At trial, Deputy Mark Fox testified that on the morning of November 2, 2000, he responded to a `suspicious circumstances’ call from a person complaining about vehicle traffic and people working on vehicles during the night at a residence on North Dora. Report of Proceedings (RP) at 63. Deputy Fox proceeded to the residence driving a marked patrol car.
When the deputy arrived at the residence, he observed Ronald Blocher standing by a silver 1997 Chrysler Concord automobile parked in the driveway. A check of the Concord’s license plates revealed that the vehicle had been stolen.
Mr. Blocher made eye contact with Deputy Fox and then turned around and began walking in the other direction. Mr. Blocher went toward the back of the house and hid beneath a boat parked in the backyard. Deputy Fox made contact with Mr. Blocher and asked him why he was `going away from me.’ RP at 60. Mr. Blocher responded that he thought he had an active warrant against him. Deputy Fox observed a bulge in Mr. Blocher’s pocket, so the deputy handcuffed Mr. Blocher and patted him down for officer safety. A set of keys and knife were discovered during the search.
Deputy Fox checked to verify whether there was an active warrant against Mr. Blocher. The deputy removed the handcuffs when he discovered that there was no active warrant on file. At some point, Mr. Blocher told the deputy that he did not know anything about the vehicle. According to Deputy Fox, Mr. Blocher provided this information spontaneously, prior to being informed that the vehicle was stolen. Additionally, one of the keys taken from Mr. Blocher’s pocket belonged to the stolen vehicle.
Deputy Scott Szoke was also present at the Dora residence. While Deputy Fox testified that there were no visible signs that the vehicle had been stolen, Deputy Szoke testified as to his observations indicating that the vehicle was stolen. For example, Deputy Szoke stated he found it `odd’,[1] that there was fresh damage to the rear passenger quarter panel and that a bunch of old clothes, pans, dishpans, an air mattress, and other items were found inside the vehicle.
Vernon Kilgore testified that he owned the 1997 Chrysler Concord on October 4, 2000, when it was stolen. The vehicle had no damage at the time it was stolen. Mr. Kilgore received a payment of approximately $15,000 from the insurance company.
Shawna Hauf testified that Mr. Blocher was an acquaintance of her brother. Ms. Hauf had seen Mr. Blocher drive the Chrysler on a couple of occasions the week before November 2. Ms. Hauf testified that she did not see anyone else drive the vehicle.
Jennifer Mitchell testified that she had known Mr. Blocher for 10 years and that Mr. Blocher had parked the Chrysler in her driveway on October 31.
When Ms. Mitchell asked Mr. Blocher about the vehicle, Mr. Blocher told her it belonged to his girlfriend.
The jury found Mr. Blocher guilty of first degree possession of stolen property and he was sentenced within the standard range. During sentencing, the court decided that it would reserve judgment on restitution pending the determination of whether Mr. Blocher was incarcerated during portions of the time related to the theft of the vehicle. Initially, a restitution order was entered against Mr. Blocher in the amount of $5,106.17.
Mr. Blocher filed a motion for reconsideration of the restitution order. As part of this motion, Mr. Blocher acknowledged that he was incarcerated from September 1, 2000, until October 18, 2000. Materials filed with the motion indicate that on October 20, 2000, the insurance company issued a check in the amount of $15,283.81 for the stolen vehicle. The vehicle was later sold at auction for a net recovery of $5,775.02. On November 7, 2000, the insurance company issued a check to Mr. Kilgore in the amount of $403.56 for the personal property that was in the vehicle. Mr. Kilgore paid $300 in deductibles. The restitution order was amended on July 12, 2001, and the amount was increased to $10,212.35. Mr. Blocher appeals the conviction and the order of restitution.
ANALYSIS Sufficiency of the Evidence.
When reviewing the sufficiency of the evidence in a criminal prosecution, the court must review the evidence in the light most favorable to the prosecution. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). The inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 338.
The issue here is whether the evidence is sufficient to support the jury’s conclusion that Mr. Blocher had knowing possession of stolen property. Although possession alone is insufficient to prove guilty knowledge, possession together with corroborating evidence of knowledge may be sufficient. State v. Douglas, 71 Wn.2d 303, 305-06, 428 P.2d 535
(1967).
We conduct this review keeping in mind that direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The evidence here is sufficient to support Mr. Blocher’s conviction. Mr. Blocher attempted to hide from deputies when they arrived at the residence.
When the deputy contacted Mr. Blocher, he denied any knowledge of the vehicle, even before he was informed that it was stolen. Moreover, despite Mr. Blocher’s denials regarding the vehicle, the key to the vehicle was found in his pocket and witnesses testified that Mr. Blocher had been seen driving the vehicle. Additionally, Mr. Blocher told Ms. Mitchell that the vehicle belonged to his girlfriend although later he told the deputies that he did not know anything about the vehicle.
Restitution.
Former RCW 9.94A.142(2) (1997)[2] provided that:
`Restitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property. . . .’
When enacting former RCW 9.94A.142, the Legislature granted broad power to the trial court to order restitution. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). The sentencing court’s authority to order restitution is purely statutory; however, when authorized, the sentencing court has discretion to determine the amount of restitution. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). As a result, a trial court’s restitution award, if authorized, will not be disturbed absent an abuse of discretion. Id. This exercise of discretion is reversible only when it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Enstone, 137 Wn.2d at 679 (citing State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)).
Restitution may be ordered only for losses incurred as a result of the precise offense charged. State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993). And, the restitution ordered must be causally connected to the defendant’s crime. Enstone, 137 Wn.2d at 682. This court has applied a `but/for’ test in analyzing causal connection. State v. Wilson, 100 Wn. App. 44, 50, 995 P.2d 1260 (2000). The State has the burden of establishing by a preponderance of the evidence a causal connection between the restitution requested and the crime with which the defendant is charged. State v. Bunner, 86 Wn. App. 158, 160, 936 P.2d 419 (1997). In satisfying this burden, the State can rely upon information that is admitted by the plea agreement or acknowledged, or upon evidence presented at the sentencing or restitution hearing. State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998) (citing RCW 9.94A.370(2)).
Restitution for injury to or loss of property is limited to damages that are `easily ascertainable’ and ‘[t]he 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.’ Former RCW 9.94A.142(1). The amount of loss need not be shown by proof beyond a reasonable doubt or clear and convincing evidence. State v. Smith, 33 Wn. App. 791, 795-96, 658 P.2d 1250 (1983). To prove the extent of damages, 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.’ State v. Horner, 53 Wn. App. 806, 808, 770 P.2d 1056
(1989). In short, once the fact of damage is established, the precise amount does not have to be shown by mathematical certainty. Id.
Here, Mr. Blocher was convicted of being in knowing possession of a stolen vehicle. Because Mr. Kilgore’s vehicle was stolen, he put in a claim to his insurance company. When the vehicle was not recovered promptly, the insurance company paid Mr. Kilgore the $15,283.81 for the stolen vehicle and $403.56 for the personal property that was in the vehicle; the vehicle was later recovered and sold at auction for a net recovery of $5,775.02. Additionally, Mr. Kilgore paid $300 in deductibles. The court ordered restitution in the amount of $10,212.35.
Insurance companies may be `victims’ for purposes of imposing restitution pursuant to former RCW 9.94A.142. See State v. Ewing, 102 Wn. App. 349, 356, 7 P.3d 835 (2000); State v. Barnett, 36 Wn. App. 560, 562, 675 P.2d 626 (1984). ‘[A] defendant should not profit simply because the victim had the foresight to contract with a third party for full or partial protection for any loss or damage caused by criminal behavior.’ Barnett, 36 Wn. App. at 563. On the one hand, the criminal process should not be used to enforce civil claims. State v. Barr, 99 Wn.2d 75, 79, 658 P.2d 1247 (1983). But on the other hand, the cost of crime should not be borne by law-abiding policyholders whose premiums will be used to make payments to victims. Ewing, 102 Wn. App. at 356-57. In short, trial courts have the discretion to order restitution in the full amount paid out by insurance companies. State v. Smith, 42 Wn. App. 399, 401, 711 P.2d 372 (1985) (restitution order affirmed even though based on replacement value as opposed to market value of stolen goods) (citing Barnett, 36 Wn. App. at 562).
Restitution for Loss of Personal Property.
Mr. Blocher contends, and the State concedes, that the amount of restitution should be reduced by the $403.56 the insurance company paid for personal items. We agree. Even if we assume that Mr. Blocher had possession of the vehicle from October 18, 2000, until November 2, 2000, there is no evidence to suggest a causal relationship between Mr. Blocher’s possession of the vehicle and the loss of the items in the vehicle when it was stolen on October 4. See State v. Tetters, 81 Wn. App. 478, 481, 914 P.2d 784 (1996).
Restitution for Loss of Stolen Vehicle.
Mr. Blocher contends the loss related to the vehicle was also not causally connected to the crime of possession of stolen property. Relying on Woods, 90 Wn. App. 904, Mr. Blocher contends there was no causal link between the insurance company’s loss and his precise offense of knowing possession of a stolen vehicle.
In Woods, the loss in dispute occurred before the defendant’s crime. Id. at 908. Ms. Woods pleaded guilty to possession of stolen property, a car, which had been stolen one month before she took possession. Id. The sentencing court ordered restitution for the victim’s loss of personal property located inside the vehicle at the time it was stolen. Id. at 906. This order was reversed on appeal for two reasons. First, the court determined that Ms. Woods could not be required to pay restitution for other uncharged offenses because she did not expressly agree, as part of her guilty plea, to pay restitution for crimes of which she was not convicted, i.e., theft in the second degree or taking a motor vehicle without permission. Id. at 908-09. Second, the court examined the causal connection between the crime and the loss, and determined that restitution was improper because it could not be established that `but for’ Ms. Woods’s possession of the stolen vehicle in September, the owner lost personal property located in the vehicle when it was stolen in August. Id. at 909-10.
Ms. Woods pleaded guilty to possession of stolen property, a vehicle; Mr. Blocher was convicted of possession of stolen property, a vehicle. But that is where the similarities between these cases ends. The sentencing court in Woods ordered a defendant who pleaded guilty to possession of stolen property to compensate the owner for losses relating to personal property. Here, the sentencing court ordered restitution for damages arising directly from the fact that Mr. Blocher’s crime deprived Mr. Kilgore of the use of his vehicle. Because the Woods court was examining a more tenuous connection between the precise crime and the restitution requirement, the Woods court had to consider the nature of the charge and the facts related to the timing of Ms. Woods’s possession of the stolen vehicle. We need not engage in this inquiry. Mr. Blocher was charged with possession of stolen property. Mr. Kilgore incurred a loss as a result. But for Mr. Blocher’s possession of the vehicle, Mr. Kilgore’s insurance company would not have reimbursed Mr. Kilgore for the value of the stolen vehicle.
Mr. Blocher contends he was released from incarceration only two days prior to the issuance of the check to Mr. Kilgore. Mr. Blocher also points out that the information charged him with possession of the vehicle from October 30, 2000, through November 3, 2000. Mr. Blocher asserts that in order to impose restitution, the State must first amend the information to charge him with possession of the stolen property prior to October 20, 2000.
Here, Mr. Blocher is confusing an argument concerning the issue of causal connection with an argument challenging the court’s method of calculating damages. In Woods, the date of possession was important because the State was attempting to prove that the loss of personal property was causally connected with the charged crime of possession of a stolen vehicle. Under those facts, the court determined that the link between the victim’s loss of property — one month before Ms. Woods’s possession of the car — was too tenuous to establish the causal relationship between the charged crime and the victim’s loss. Woods, 90 Wn. App. at 909-10.
In contrast, the exact date of payment of the insurance check is less important here because Mr. Kilgore’s loss of use of the vehicle is causally connected with the specified crime — unlawful possession of that same vehicle. There is no question that Mr. Kilgore suffered damages as a result of Mr. Blocher’s possession of Mr. Kilgore’s vehicle. The question is one of damages — how should the court calculate damages for Mr. Kilgore’s loss of the vehicle. The sentencing court based its calculation on the amount of the insurance check, but the court could have calculated this loss differently had it been presented with evidence such as any costs incurred to repair the damage to the quarter panel, for vehicle rental fees, or vehicle cleaning fees.
Contrary to Mr. Blocher’s assertions, the issue here is whether the sentencing court abused its discretion by using the amount of the check when calculating Mr. Kilgore’s damages resulting from Mr. Blocher’s knowing possession of the stolen vehicle. The vehicle was stolen on October 4 and the check was issued on October 20. Mr. Blocher concedes that he was incarcerated up until October 18. The State presented evidence as to the loss sustained by Mr. Kilgore and his insurer. “Evidence of damage is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.” State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51 (1992) (quoting State v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 (1984)). Based on this record, the court did not abuse its discretion by imposing restitution based on the amount of the check issued by the insurer.
We affirm Mr. Blocher’s conviction. We order that Mr. Blocher’s restitution order is reduced by $403.56, the amount the insurance company paid for personal items. In all other respects, the restitution order is affirmed.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN and SWEENEY, JJ, Concur.