State v. Fleming

• Citation: 75 Wn.App. 270,877 P.2d 243
• Decision Date: 01 August 1994
• Docket Number: No. 32027-1-I,32027-1-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Jon R. FLEMING, Appellant.

Page 270

75 Wn.App. 270

877 P.2d 243

STATE of Washington, Respondent, v. Jon R. FLEMING, Appellant.

No. 32027-1-I.

Court of Appeals of Washington Division 1.

Aug. 1, 1994.

Suzanne Lee Elliott, Washington Appellate Defender, Seattle, WA, for appellant.

K. Garl Long, Skagit Deputy Prosecutor, Mount Vernon, WA, for respondent.

KENNEDY, Judge.

Jon R. Fleming appeals the restitution order resulting from his conviction of first degree trafficking in stolen property. He contends that the trial court abused its discretion in setting the amount of restitution based upon the appreciated value of a gold necklace 3 years after the crime occurred. Fleming asserts that the court should have used the value of the necklace at the time of the crime. He also argues that $300 of the restitution order should not have been included because it involved an earlier, uncharged crime. We affirm.

FACTS

On March 28, 1989, June Johnson reported $300 in cash missing from the duplex apartment she shared with her sister Barbara Johnson Grove ¹. Police investigation revealed that entry may have been made through a crawl space from the adjoining duplex apartment. In April, police officers placed $50 of marked money in the Johnsons' apartment. Approximately 1 week later Barbara Johnson Grove reported to the police that the marked money and her jewelry box were missing from the apartment. One of the items in the jewelry box was a 24"-26" gold necklace, which Grove estimated to be worth $2000, based on telephone calls she made to jewelry stores shortly after she discovered the theft of her jewelry. Fleming, the duplex-neighbor's son, was arrested 2 days after the second burglary.

Fleming was charged initially with second degree burglary. By amended information, the charge was changed to first degree trafficking in stolen property:

[D]uring March or April, 1989, in Skagit County, Washington, [Fleming] did knowingly initiate, organize, plan, finance, direct, manage, or supervise the theft of personal property, belonging to Jane [sic ] and Barbara Johnson, another [sic ] for sale to another; proscribed by RCW 9A.82.050(2), a felony.

Clerk's papers, at 2. Fleming entered an Alford plea to the amended charge. Paragraph 4(b) of the plea form reads:

I HAVE BEEN INFORMED AND FULLY UNDERSTAND THAT:

....

(b) I am charged with the crime of Trafficing [sic ] in Stolen Property in the First Degree. That the elements of the crime are knowingly initiating, organizing, planning, financing, directing, managing or supervising the theft of property for sale to others, or knowingly trafficking in stolen property [sic ].

Clerk's papers, at 3. The only reference to restitution in the plea form is a standard, preprinted paragraph which states that, absent extraordinary circumstances, restitution will be ordered for property crimes or crimes resulting in injury. The judgment and sentence entered the same day as the plea states that restitution would be determined at a future proceeding. Fleming was sent to prison.

A restitution hearing was held on December 3, 1992, more than 3 years after the crimes were committed. The State was seeking restitution in the amount of $5124, which included $3000 to Barbara Johnson Grove for her gold necklace $300 to June Johnson for the money stolen in the first burglary, $50 to the police department for the marked money taken in the second burglary, and $1774 to Barbara Johnson Grove for other jewelry stolen from her in the second burglary.

Barbara Johnson Grove testified that the majority of her loss arose from the theft of the 24"-26" gold necklace. She had the necklace valued in April 1992, 3 years after the crime occurred. The jeweler she consulted established the necklace's worth at $3000 at the time of the appraisal, based on Grove's description of her necklace and the value of other necklaces which she saw and stated were similar to her stolen necklace. Grove stated that the jeweler attributed the increase in the necklace's value to rising gold prices during the 3 intervening years. Fleming's sole legal argument at the hearing was that the court should use the $2000 value of the necklace at the time of the burglary when setting restitution. He affirmatively advised the court that there were no other issues to be decided at that hearing.

Fleming testified at the restitution hearing. On direct examination, he stated that he remembered stealing the $300 cash. When asked if he remembered the second burglary, he stated "I remember what I didn't take." Report of proceedings, at 17. He then added that he did not remember what he did with the items he had taken, and that he had no recollection of a second burglary. When asked on cross examination if he remembered taking any jewelry, Fleming said, "I do remember but I know I didn't take any gold chains." Report of proceedings, at 18.

The trial court imposed restitution mirroring the State's recommendations. This timely appeal followed.

DISCUSSION

I Value of the Necklace

Fleming asks this court to rule as a matter of law that, in setting restitution, the trial court must always value a stolen item at the time closest to the time of the theft. We decline to so hold.

We review a challenge to the amount of a restitution order for abuse of discretion. State v. Davison, 116 Wash.2d 917, 919, 809 P.2d 1374 (1991). The usual standard of review for abuse of discretion applies. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971); In re Marriage of Bralley, 70 Wash.App. 646, 651, 855 P.2d 1174 (1993).

The trial court's authority to order restitution is purely statutory. State v. Smith, 119 Wash.2d 385, 389, 831 P.2d 1082 (1992). RCW 9.94A.142 provides in relevant part:

(1)

... Restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property[.] ... 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....

(2) 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 unless extraordinary circumstances exist which make restitution inappropriate.... [R]estitution shall be ordered to pay for an injury, loss, or damage if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.

(Italics ours.)

The language of the restitution statute was meant to give the trial court broad powers of restitution. Davison, 116 Wash.2d at 920, 809 P.2d 1374. Accordingly, the statute should be interpreted broadly to carry out the expressed intent of the Legislature and the purposes of the Sentencing Reform Act (SRA). Davison, 116 Wash.2d at 920, 809 P.2d 1374.

Restitution must be based upon easily ascertainable damages; however, a loss need not be established with specific accuracy. RCW 9.94A.142(1); see State v. Johnson, 69 Wash.App. 189, 194, 847 P.2d 960 (1993); State v. Pollard, 66 Wash.App. 779, 785, 834 P.2d 51, review denied, 120 Wash.2d 1015, 844 P.2d 436 (1992). " '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.' " Pollard, 66 Wash.App. at 785, 834 P.2d 51 (quoting State v. Mark, 36 Wash.App. 428, 434, 675 P.2d 1250 (1984)) (citing State v. Bush, 34 Wash.App. 121, 124, 659 P.2d 1127, review denied, 99 Wash.2d 1017 (1983)). The amount of damages claimed must be supported by substantial credible evidence. Pollard, 66 Wash.App. at 785, 834 P.2d 51.

Interpreting the restitution statute broadly to effect the Legislature's intent, we hold that it is within the sound discretion of the trial court to take fluctuations in market value into consideration for purposes of setting restitution. Restitution is not a substitute for a civil lawsuit. It serves other purposes, one of which is to impose upon one who breaks the law a thorough understanding of the economic effects of a particular crime upon the victim. Cf. Davison, 116 Wash.2d at 922, 809 P.2d 1374 (one of the purposes of the SRA is to "promote respect for the law" by providing just punishment); see also Johnson, 69 Wash.App. at 193, 847 P.2d 960 (defendant should not avoid culpability for "reasonable consequences" of her crime). Here, Barbara Johnson Grove lost not only a valuable piece of jewelry, but also the opportunity to take advantage of the increase in the market value of the precious metal of which the necklace was made. If Fleming had not taken the necklace Grove would have had the option to secure a windfall by selling the necklace when the value of gold increased. Thus, the appreciated value of the necklace was substantial credible evidence of the amount of Ms. Grove's loss. Absent clear abuse, which we do not find here, we defer to the trial court's discretion.

In so ruling, we specifically reject two theories whereby the State argues that we could affirm the trial court by application of a harmless error analysis. First, the State notes that the trial court has statutory authority under RCW 9.94A.142(1) to impose restitution in an amount up to twice the victim's loss or the offender's gain. Second, the trial court could have imposed restitution for the investigation costs Barbara Johnson Grove incurred in determining the value of her necklace. See Johnson, 69 Wash.App. at 193, 847 P.2d 960 (cost of investigating business records a consequence of embezzlement). For both reasons, the State argues, the amount of restitution actually imposed by the trial court was less than could have been imposed, making any error by the trial court harmless.

The ability to impose up to twice the amount of the victim's loss or offender's gain does not, however,...