State v. Griffith

¶1 Joan Marie Griffith appeals the amount of restitution she was ordered to pay after pleading guilty to possessing stolen property in the second degree. She claims substantial evidence does not support the trial court’s finding that she possessed $11,500 worth of the *963victim’s unrecovered stolen jewelry. We agree. We vacate the order and remand for a new restitution hearing.

Facts and Procedural History

¶2 Sometime between Christmas 2001 and New Year’s Day 2002, burglars broke into Robert and Elaine Linscott’s home and stole jewelry, sterling silverware, firearms, and other items. On January 1, 2002, the Linscotts reported the theft and provided police a detailed list of the stolen items, along with their estimated values totaling $44,000.

¶3 Russ and John Slaughter are the co-owners of Eastern Washington Coin Company in Spokane. On January 2, 2002, Joan Marie Griffith came into the coin company with plastic bags containing jewelry, including a string of pearls and what appeared to be a large diamond ring. Griffith sold the Slaughters some scrap gold for $96. Griffith also asked Russ1 to appraise the diamond ring. He offered her between $480 and $500. She declined the offer. Two days later, Griffith sold the Slaughters the pearl necklace.

¶4 Shortly after the burglary, Mrs. Linscott searched local pawnshops and resale stores for her stolen belongings. She found several of her missing items, including her pearl necklace, at the Slaughters’ coin company. The police were called, and Russ identified Griffith as the person who sold them the stolen jewelry.

¶5 When police interviewed Griffith, she claimed two men approached her in a parking lot and sold her the jewelry she later sold to the coin company. After the interview, police searched Griffith’s house and did not find any other stolen items.

¶6 The State charged Griffith with trafficking in stolen property in the second degree. RCW 9A.82.055(1). On November 22, 2004, she pleaded guilty to possessing stolen *964property in the second degree2 and indicated she understood she would be ordered to pay restitution.

¶7 In June 2005, the court held a restitution hearing. Mrs. Linscott testified approximately $11,000 worth of her jewelry was still missing, including a two and one-half carat diamond ring, a sapphire ring, a couple of amethyst rings, and a pearl ring. She said she understood Griffith was seen “carrying” these gems. Restitution Hearing Report of Proceedings (RP) at 5-7.

¶8 John testified Griffith came in the coin company with a “bag of stuff” and sold him some scrap gold for $96. RP at 9-10. When asked if he recalled seeing Mrs. Linscott’s “two and a half carat diamond ring,” he said he saw a similar ring with a large, diamond-like stone but did not examine it closely and could not say for certain it was Mrs. Linscott’s. RP at 10. He remembered seeing the pearl necklace Griffith sold them and the Linscotts later recovered, but could not identify any of the other items listed in the police report as being in Griffith’s possession. He also testified that if Griffith had a bag of gems with her, he likely would have remembered.

¶9 After John’s testimony, the court concluded “$11,500 of Elaine Linscott’s property was identified by John Slaughter as having been in defendant’s possession after the crime,” Clerk’s Papers (CP) at 26, and ordered Griffith to pay restitution in that amount.

¶10 Griffith appealed, arguing there was insufficient evidence supporting the restitution order. The Court of Appeals affirmed the order. State v. Griffith, 136 Wn. App. 885, 151 P.3d 230 (2007). Judge Schultheis dissented. Id. at 892.

*965Standard of Review

¶11 “The size of [a restitution] award is within the court’s discretion and will not be disturbed on appeal absent a showing of abuse.” State v. Mead, 67 Wn. App. 486, 490, 836 P.2d 257 (1992) (citing State v. Davison, 116 Wn.2d 917, 919-20, 809 P.2d 1374 (1991)). We review a trial court’s factual findings for substantial evidence. Ingram v. Dep’t of Licensing, 162 Wn.2d 514, 522, 173 P.3d 259 (2007).

Analysis

¶12 A court’s authority to impose restitution is statutory. Davison, 116 Wn.2d at 919. A judge must order restitution whenever a defendant is convicted of an offense that results in loss of property. RCW 9.94A.753(5). The amount of restitution must be based “on easily ascertainable damages.” RCW 9.94A.753(3). While the claimed loss “need not be established with specific accuracy,” it must be supported by “substantial credible evidence.” State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994). “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.’ ” State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005) (internal quotation marks omitted) (quoting Fleming, 75 Wn. App. at 274-75), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). If a defendant disputes the restitution amount, the State must prove the damages by a preponderance of the evidence. State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).

¶13 Although there is no right to a jury determination of facts supporting the amount of restitution, “[r]estitution is allowed only for losses that are ‘causally connected’ to the crimes charged,” State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007) (quoting Kinneman, 155 *966Wn.2d at 286) unless the defendant “ ‘expressly agrees to pay restitution for crimes for which [she] was not convicted.’ ” State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998) (quoting State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993)). Losses are causally connected if, but for the charged crime, the victim would not have incurred the loss. Tobin, 161 Wn.2d at 524. “In determining whether a causal connection exists, we look to the underlying facts of the charged offense, not the name of the crime to which the defendant entered a plea.” State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359 (1992).

¶14 A court can, in its discretion, order restitution up to double the amount of the victim’s loss. RCW 9.94A.753(3). In the instant case, however, the court found no reason to vary upward from the Linscotts’ claimed damages and ordered Griffith to pay $11,500 in actual restitution.

¶15 We agree with Judge Schultheis’s dissent below that, based on the record before us, substantial evidence does not support Griffith’s restitution order. Although Mrs. Linscott testified Griffith possessed $11,000 worth of her jewelry, her testimony was based on what she understood the Slaughters saw. She asserted the Slaughters saw Griffith carry a bag of the stolen gems into the coin company, but they did not testify to this.

¶16 John Slaughter testified Griffith came in with a “bag of stuff” (RP at 9), sold him gold scrap for $96 and a pearl necklace that was eventually returned to the Linscotts, and carried a ring with a diamond-like stone, similar to Mrs. Linscott’s ring. He could describe the rest of the items in Griffith’s possession only as a “mixture of stuff.” RP at 10.3 He also said if Griffith brought a bag of gems into his store, he likely would have remembered.

¶17 Russ Slaughter did not testify at the restitution hearing, but the investigating officer’s affidavit of facts *967stated Russ could testify that Griffith brought in “several miscellaneous pieces of jewelry,” which she sold to the coin company for $96, and also a ring with a large diamond for which he offered her between $480 to $500, but she declined to sell. CP at 30.

¶18 Neither John’s nor Russ’s testimony sufficiently supports the trial court’s conclusion that Griffith possessed $11,500 of Mrs. Linscott’s unrecovered property. As Judge Schultheis noted, “Nothing other than the items bought for around $96 and the diamond ring is ever specifically described by any witness in the record or at the hearing.” Griffith, 136 Wn. App. at 893 (Schultheis, J., dissenting).

¶19 Griffith did not plead guilty to burglary. She pleaded guilty to possessing $250-$l,500 worth of stolen property. “ £[C]ulpability for possession of stolen property does not necessarily include culpability for the stealing of the property. The actual thief is guilty of a different crime.’ ” Griffith, 136 Wn. App. at 894 (Schultheis, J., dissenting) (quoting State v. Keigan C., 120 Wn. App. 604, 609, 86 P.3d 798 (2004), aff’d sub norm. State v. Hiett, 154 Wn.2d 560, 115 P.3d 274 (2005)). Because Griffith did not agree to pay for the Linscotts’ loss from the burglary, she is responsible only for the value of the Linscotts’ unrecovered property proved to be causally related to her crime.4

¶20 The State concedes the factual basis for Griffith’s restitution order is “skimpy.” Br. of Resp’t at 5. The evidence is not only “skimpy” — it is legally insufficient. John Slaughter’s testimony that Griffith brought “stuff” into the coin company does not support the trial court’s finding that Griffith possessed $11,500 worth of the Linscotts’ unrecovered property.

¶21 Griffith asks this court not only to vacate her restitution order, but also to refuse to remand for a new *968restitution hearing. We decline to go this far. Griffith pleaded guilty to possessing stolen property and should pay restitution for her crime. We remand for the trial court to determine the value of Mrs. Linscott’s unrecovered items from the police report that can be identified by a preponderance of the evidence to have been in Griffith’s possession.5 No new evidence may be admitted.6

Conclusion

¶22 Substantial evidence does not support Griffith’s restitution order. We vacate the restitution order and remand for a new restitution hearing.