No. 22472-4-IIIThe Court of Appeals of Washington, Division Three. Panel Six.
Filed: October 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Whitman County. Docket No: 02-1-00056-2. Judgment or order under review. Date filed: 10/03/2003. Judge signing: Hon. John David Frazier.
Counsel for Appellant(s), James Richard Loeber (Appearing Pro Se), PO Box 136, Soap Lake, WA 98851.
Mark Thomas Monson, Attorney at Law, 803 S Jefferson # 4, PO Box 8456, Moscow, ID 83843-0956.
Counsel for Respondent(s), Byron Bedirian, Prosecutor’s Office, PO Box 30, Colfax, WA 99111-0030.
KURTZ, J.
James Richard Loeber pleaded guilty to one count of first degree theft and one count of third degree theft. Following Mr. Loeber’s guilty plea, the court ordered restitution in the amount of $31,932.50. This amount includes restitution for the victim’s expenses and $9,343.04 for the victim’s lost wages. On appeal, Mr. Loeber contends the court abused its discretion by basing an award on unsubstantiated claims and by awarding offsets for items retained by the victim based on estimated fair market values. Mr. Loeber also maintains the court erred by including an award for lost wages and prejudgment interest. We reverse in part and affirm in part.
FACTS
James Richard Loeber pleaded guilty to one count of first degree theft and one count of third degree theft. The victim of these crimes assisted Mr. Loeber for several months based on Mr. Loeber’s convincing representations that he was dying of pancreatic cancer and needed an assistant during out-of-town treatment and for help with in-town business.
At the restitution hearing, the victim provided receipts for expenses he claimed were incurred on Mr. Loeber’s behalf. Mr. Loeber disputed the amount of expenses incurred by the victim, as well as the amount of offset appropriate for those items retained by the victim. The victim also claimed $13,731.37 in lost wages resulting from opportunities lost because of the time he spent assisting Mr. Loeber. The trial court ordered restitution in the amount of $31,932.50; this amount included an award of $9,343.04 for lost wages. The court also awarded prejudgment interest. Mr. Loeber appeals.
ANALYSIS
RCW 9.94A.753(5) (formerly RCW 9.94A.142(2))[1] provides, in part, 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 RCW 9.94A.753, 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. Accordingly, 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 679-80.
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 682-83. 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). When determining restitution, the sentencing court may rely upon information that is admitted by the plea agreement, or admitted or acknowledged by evidence presented at the sentence or restitution hearing. State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998) (quoting 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.’ RCW 9.94A.753(3). 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. However, if a defendant disputes a material fact related to restitution, the sentencing court must either not consider those facts or hold an evidentiary hearing where the State must prove the restitution amount by a preponderance of the evidence. Woods, 90 Wn. App. at 907 (quoting RCW 9.94A.370(2)).
Receipt and Exhibit Totals. In its award, the court included the totals of all receipts and exhibits presented by the victim. Mr. Loeber contends the court erred by including several amounts that were unsubstantiated by documentation or the victim’s testimony. Specifically, Mr. Loeber points out that the restitution award includes the amount of $11,000 that the victim put into a checking account. Mr. Loeber contends that there is no reasonable basis to include $4,448.01 in the award because this amount is based on conjecture or speculation as to the purpose behind the withdrawals from this account.
The victim testified that he had $24,103.25 in receipts, which included the $11,000 he placed into a checking account for Mr. Loeber’s expenses. From this account, the victim withdrew $520 for a money order for Mr. Loeber, money for a safety deposit box, $1,000 in cash for Mr. Loeber, and $6,500 to pay for a car. The victim testified that the remaining money was spent on trips with Mr. Loeber, but that there were no receipts for the expenditures. The victim also testified that he paid $2,000 less for the car than the $6,500 indicated in the exhibits.
The State contends that the majority of the $4,500 remaining in the account was used to pay Mr. Loeber’s bills. But many of the bills listed by the State in its brief are exhibits that are presumably already included in the $24,103.25 total requested by the victim. The State argues that there is sufficient evidence to support the victim’s losses — even without receipts — because the victim testified that he drove Mr. Loeber to the Tri-Cities, Seattle, and Portland, and that the victim paid for hotels, liquor, food, entertainment, and other items while on these trips.
On the one hand, the victim testified that he set up the $11,000 account and that he used the money to assist Mr. Loeber. But on the other hand, the standard here is a preponderance of the evidence, not sufficiency of the evidence, and there are no receipts to substantiate these expenses. Based on the record here, the State has not met its burden by a preponderance of the evidence. The result might be different if the victim had testified with greater specificity about the timing of the trips and the withdrawals from the account or if he had provided other documentation indicating where and when the withdrawals were made.
We hold the State failed to meet its burden concerning the $4,448.01 in withdrawals from the checking account.
Award for Lost Wages. Mr. Loeber contends the court abused its discretion by ordering restitution for lost wages that did not result from physical injury because this type of recovery is not authorized under the statutory scheme. Alternatively, Mr. Loeber contends the award for lost wages was improper because it was based on conjecture and speculation and this expense was based on the general scheme, not the facts that were part of the charge against Mr. Loeber.
`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. . . .’
RCW 9.94A.753(5). `[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.’ RCW 9.94A.753(3) (emphasis added).
Both parties rely on State v. Hefa, 73 Wn. App. 865, 871 P.2d 1093
(1994) to support their opposing arguments. In Hefa, a juvenile offender pleaded guilty to second degree burglary and was ordered to pay restitution for certain wages the victim claimed he lost when securing and repairing the house. In reversing the order of restitution, the appellate court held that `the statute unambiguously limits restitution for lost wages to those resulting from physical injury.’ Id. at 868.
The State argues that Hefa is distinguishable because the juvenile statute in question stated that restitution `shall be limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical treatment for physical injury to persons, lost wages resulting from physical injury. . . .’ RCW 13.40.020(22) (emphasis added). But this argument is unpersuasive. Even though the statutes are slightly different, a plain reading of RCW 9.94A.753(3) reveals that the court has no authority to award damages for lost wages other than those resulting from physical injury.
Significantly, the victim here sought to recover for his loss of property; he did not seek recovery for an injury. And there is no physical injury here. Accordingly, the court erred by including lost wages when calculating restitution for the victim’s loss of property. The court lacked the authority to award lost wages because the victim’s award was not based on any type of physical injury.
We hold the court erred by including an award for lost wages.
Offset for Items Retained by the Victim. Mr. Loeber also contends the court abused its discretion by ordering an offset for the 1994 Cadillac, a video camera, and the TV retained by the victim. According to Mr. Loeber, these offsets were based solely on speculation because the court indicated that the amount of the offset should be the fair market value but the court did not consider any evidence or authority when determining the amount of offset. Also, Mr. Loeber contends the court failed to award offsets for other items retained by the victim.
When setting the amount of offset for the items retained by the victim, the court indicated that the amount of the offset should be the fair market value of the items at the time of the hearing or when the restitution order was entered. The original amount of the Cadillac was $6,500 but apparently the vehicle was worth less because it needed repairs. Exhibits 9 and 27 show $273 at Les Schwab and $898 at Tyler and Kelly. The court awarded an offset of $4,690 for the Cadillac. The court had the discretion to award an offset for the Cadillac based on the evidence as to the repairs.
The original price of the TV/VCR was $119.88 and the court permitted an offset of $90. The original price of the video camera was $397.67; the court permitted an offset of $250. The State failed to establish the fair market value of these assets by a preponderance of the evidence. Because the victim retained these items, an offset prevented the victim from receiving a double recovery. However, the court does not have the discretion to manufacture a fair marker value where there is no evidence to support one. Evidence supporting a restitution award 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 the evidence in this record, the court should have awarded an offset based on the purchase price of $119.88 for the TV/VCR and $397.67 for the video camera.
Mr. Loeber also contends the court should have provided an offset for other items retained by the victim. We cannot address this contention because the record before us is insufficient.
Award of Prejudgment Interest. The court awarded prejudgment interest and indicated that the interest should accrue from the day the victim reported the incident to the police. The victim did not testify about a specific date when he first contacted the police, but the victim did testify that between June 3 and June 6, 2002, he spent 40 hours documenting the case for the police. The court ultimately determined that the prejudgment interest should accrue as of May 30, 2002.
Mr. Loeber maintains that the court erred by awarding prejudgment interest and by concluding that such interest accrued as of May 30, 2002.
Prejudgment interest is allowed if it is liquidated or can be calculated with `exactness, without reliance on opinion or discretion.’ Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968). Prejudgment interest is granted to compensate a party for the loss of money to which he was entitled. Jones v. Best, 134 Wn.2d 232, 242, 950 P.2d 1 (1998). The trial court erred by awarding prejudgment interest as part of a restitution award. Restitution is awarded under RCW 9.94A.750. But restitution `may be ordered whenever the offender is convicted of an offense. . . .’ RCW 9.94A.750(5). Prejudgment interest is improper in this context because a victim is not entitled to restitution until the offender is convicted. RCW 10.82.090 provides, in part, that financial obligations imposed in a judgment shall bear interest from the date of the judgment until payment. This statute is unambiguous and does not provide for any discretion as to when interest begins to accrue. See State v. Claypool, 111 Wn. App. 473, 476, 45 P.3d 609 (2002), review denied, 148 Wn.2d 1004 (2003) (RCW 10.82.090 does not permit court to defer accrual of interest until defendant is released from custody).
We hold the court erred by awarding prejudgment interest.
In summary, we reverse the restitution award of $4,448.01 for withdrawals from the checking account. We reverse the restitution award of $9,343.04 for the victim’s lost wages. The offset of $90 for the TV/VCR and the offset of $250 for the video camera are reversed. The restitution award will reflect an offset of $119.88 for the TV/VCR and $397.67 for the video camera. Finally, the award of prejudgment interest is reversed. In all other respects, the restitution award 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.
SWEENEY, A.C.J. and SCHULTHEIS, J., Concur.