State v. Landrum

• Decision Date: 30 October 1976
• Citation: 832 P.2d 1359,66 Wn.App. 791
• Parties: STATE of Washington, Respondent, v. Stoney Terrell LANDRUM, B.D
• Court: Washington Court of Appeals

Page 791

66 Wn.App. 791

832 P.2d 1359

STATE of Washington, Respondent, v. Stoney Terrell LANDRUM, B.D. 10/30/76, Appellant.

STATE of Washington, Respondent, v. John Joseph KEATING, Jr., aka Jake John Keating, B.D.

01/21/75, Appellant.

Nos. 27046-0-I, 27696-4-I.

Court of Appeals of Washington,

Division 1.

Aug. 3, 1992.

Adam Shapiro, Wash. Appellate Defenders, Seattle, for appellants.

Norm Maleng, Pros. Atty., and Pamela Mohr, Seattle, for respondent.

AGID, Judge.

The appellants, John Joseph Keating and Stoney Terrell Landrum, raise the issue of whether the Juvenile Justice Act of 1977 (JJA) authorizes the juvenile court to impose restitution for the costs of psychological counseling incurred by the victims of the defendants' criminal assaults. In addition, Landrum challenges the trial court's order of restitution for the victim's medical examination and its imposition of an option B sentence. We affirm.

I. FACTS

Keating

The State charged Keating with child molestation in the first degree. The original information stated that, during the period of December 1, 1988 and April 30, 1989, the defendant had sexual contact with the victim, P. Keatingentered an Alford ¹ plea to assault in the fourth degree. ² As part of this plea, he agreed to allow the juvenile court to review the police reports. It is undisputed that the police reports indicate that the assault was of a sexual nature. ³ At sentencing, the trial court ordered the defendant to pay restitution in the amount of $325 for the victim's counseling costs, on a payment schedule of $20 per month.

Landrum

Landrum was also charged with one count of first degree child molestation. The information alleged that on July 4, 1989, Landrum had sexual contact with the victim, M. Landrum also entered an Alford plea to assault in the fourth degree. In the plea agreement, he authorized the juvenile court to make a factual finding based on the police incident report. The police report indicated that M. told her mother that Landrum had exposed himself, made her touch his penis and, when M. refused to do more, put her in the shower and turned on the hot water. At a restitution hearing, the juvenile court ordered restitution in the amount of $892 for the victim's counseling expenses and $16 for a medical examination of the victim's hymen. The court established a payment schedule of $10 per month.

II. DISCUSSION

Restitution for Counseling Costs

Under RCW 13.40.190, the court is required to impose on a juvenile offender restitution for losses suffered by the victim. ⁴ State v. Bennett, 63 Wash.App. 530, 532, 821 P.2d 499 (1991). Our review of the restitution order is limited to determining whether the restitution ordered by the trial court was authorized by statute. State v. Horner, 53 Wash.App. 806, 807, 770 P.2d 1056 (1989); State v. Morse, 45 Wash.App. 197, 199, 723 P.2d 1209 (1986). In reviewing the restitution provisions of the JJA, we are mindful that they are to be liberally construed in favor of imposing restitution. State v. Barrett, 54 Wash.App. 178, 179, 773 P.2d 420 (1989); State v. Vinyard, 50 Wash.App. 888, 895, 751 P.2d 339 (1988).

The appellants contend that the juvenile court lacked authority to impose restitution for the victims' counseling expenses. This issue arises because the statutory section governing dispositional orders ("disposition section") provides for restitution of counseling expenses while, at the time the defendants committed their crimes, the statutory definition of restitution ("definition section") did not. ⁵

The disposition section, RCW 13.40.190(1), provides in part:

(1) In its dispositional order, the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. In addition, restitution may be ordered for 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, pursuant to a plea agreement, are not prosecuted. The payment of restitution shall be in addition to any punishment which is imposed pursuant to the other provisions of this chapter. The court may determine the amount, terms, and conditions of the restitution. Restitution may include the costs of counseling reasonably related to the offense.

(Emphasis added.)

"Restitution" is defined in former RCW 13.40.020(17) as follows:

"Restitution" means financial reimbursement by the offender to the victim, and 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, and lost wages resulting from physical injury. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender[.]

Landrum urges us to reconcile this conflict by interpreting the language allowing restitution for counseling costs in the disposition section to mean only those counseling costs that result from a physical injury. ⁶ We cannot adopt this interpretation.

The pre-1990 definition section neither provides for nor excludes restitution for counseling expenses. Definitions are often general in nature and do not necessarily include every aspect of the term as it is later used in the substantive provisions of a statute. When two statutes apparently conflict, the rules of statutory construction direct the court to, if possible, reconcile them so as to give effect to each provision. In re King, 110 Wash.2d 793, 799, 756 P.2d 1303 (1988); In re Mayner, 107 Wash.2d 512, 522, 730 P.2d 1321 (1986). Further, the statutory provision that appears latest in order of position prevails unless the first provision is more clear and explicit than the last. State ex rel. Graham v. San Juan Cy., 102 Wash.2d 311, 320, 686 P.2d 1073 (1984). Another statement of this rule appears in Chelan Cy. Deputy Sheriffs' Ass'n v. Chelan Cy., 45 Wash.App. 812, 822, 725 P.2d 1001 (1986), reversed on other grounds, 109 Wash.2d 282, 745 P.2d 1 (1987): "where a statute expresses first a general intent and afterwards an inconsistent particular intent, such particular intent will be taken as an exception from the general intent and both will stand." In addition, when two statutory provisions dealing with the same subject matter are in conflict, the latest enacted provision prevails when it is more specific than its predecessor. Citizens For Clean Air v. Spokane, 114 Wash.2d 20, 37, 785 P.2d 447 (1990); State v. Becker, 59 Wash.App. 848, 852-53, 801 P.2d 1015 (1990). Here, the disposition provision which allows restitution for counseling appears latest in order of position and is clear and specific as to counseling. Further, that section was amended to add the sentence providing for counseling costs after the definition section was enacted. Accordingly, the provision for counseling expenses should be given effect as an expansion of the definition.

Moreover, statutes should be construed to effect the legislative purpose and to avoid unlikely, strained or absurd results. State v. Fjermestad, 114 Wash.2d 828, 835, 791 P.2d 897 (1990); State v. Curwood, 50 Wash.App. 228, 231, 748 P.2d 237 (1987). Two basic goals of the JJA and its restitution provisions are to make juveniles accountable for their actions and to provide restitution to crime victims. RCW 13.40.010(2)(c) and (h); Bennett, 63 Wash.App. at 533, 821 P.2d 499; State v. Bush, 34 Wash.App. 121, 124, 659 P.2d 1127, review denied, 99 Wash.2d 1017 (1983). Because the psychological damage to the child sexual abuse victim may last a lifetime, counseling for these victims is now commonly recognized as an essential part of the recovery process. ⁷ Landrum's suggested construction would frustrate the overall purposes of the JJA by allowing the defendants to escape responsibility for the results of their actions and leaving the victims without compensation for their injuries. ⁸ This construction would also render the counseling provision practically meaningless by restricting it to a narrow and unusual class of cases.

Keating makes a related argument, contending that counseling costs are an "intangible loss" and thus expressly excluded under the definition of restitution. He therefore argues that the counseling provision of the disposition section is in irreconcilable conflict with the definition section and the conflict must be resolved in favor of the defendant under the rule of lenity.

As examples of "intangible losses," the statute lists "mental anguish, pain and suffering". Former RCW 13.40.020(17). Clearly, these are intangible in that they are not capable of being quantified with exactness. Compensation of the victim for these types of losses requires the judgment and discretion of the fact-finder to determine an appropriate award. By contrast, counseling costs are more akin to medical bills. They are easily quantified by reference to the provider's bill and they represent expenses actually incurred. Thus, counseling costs fall within the category of "easily ascertainable damages" and "actual expenses incurred for medical treatment", former RCW 13.40.020(17), and cannot be classified as an "intangible" loss.

In addition, we reject the appellant's argument that the rule of lenity should apply to our analysis of a restitution issue. The rule of lenity is applied to ambiguous criminal statutes to prevent an "increase [in] the penalty imposed absent clear evidence of legislative intent to do so." (Emphasis added.) State v. Sass, 94 Wash.2d 721, 726, 620 P.2d 79 (1980). As we noted above, the legislative intent to permit restitution for counseling costs is clear under all the applicable rules of statutory construction. See State v. Rhodes, 58 Wash.App. 913,...