State Of Washington v. Lisa M. O'neill

• Court: Court of Appeals of Washington
• Decided: July 8, 2013
• Docket: 68466-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE :::.: - i err.

STATE OF WASHINGTON, CO :';,;ti, Respondent, No. 68466-3-1

v. UNPUBLISHED OPINION

LISA M. O'NEILL,

Appellant. FILED: July 8, 2013

Per Curiam—At sentencing on 13 counts of first degree theft, the court

ordered Lisa O'Neill to pay $55,427.10 in restitution to her victim, Leonard

Swenson. O'Neill appeals that order, claiming that the court erred in considering

evidence of additional losses and in refusing to offset the restitution amount by

the rent and living expenses Swenson allegedly owed O'Neill. We affirm.

Swenson, a widower in his 60's with mild cognitive impairment, became

friends with O'Neill and moved into her house. Except for a brief period after he

suffered a stroke, Swenson lived with O'Neill from October 2006 until July 2008.

During that time, he opened a joint bank account with O'Neill so she could help him with his finances. O'Neill took a significant amount of Swenson's money by

transferring funds from the joint account into her personal bank account.

The State charged O'Neill with 14 counts of first degree theft. The jury convicted O'Neill on all 14 theft charges, but the State agreed to dismiss Count

XIV to cure double jeopardy concerns. No. 68466-3-1/2

At sentencing, the State requested restitution for the money taken during

the transactions charged in Counts l-XIII. This amounted to $55,427.10. O'Neill

argued that restitution should be offset by the $500 per month rent that Swenson

had agreed to pay and by living expenses she incurred during his residency in

her home. In total, O'Neill proposed a $21,995.66 offset against the State's

requested restitution.1 The court denied O'Neill's request and ordered the full

$55,427.10 in restitution. In its oral ruling, the court made the following

observation:

[l]t would appear that there is some restraint by the State here because—and of course, we know one count has been vacated. That would not—arguably would not support restitution, but there certainly was evidence at trial that there was another $34,000 or so taken, and there may have been other amounts. So it appears to be a conservative amount, so the court will order it.

O'Neill contends the trial court abused its discretion by considering losses

unrelated to the crimes of conviction "in rejecting [her] proposed offsetting

amounts."2 But the court did not identify those losses as a basis for rejecting

O'Neill's offset request.

Nothing in the record or the law supports O'Neill's claim that the court

abused its discretion in declining an offset. Whether to offset a restitution award

is a matter within the trial court's discretion. See State v. Shannahan, 69 Wn.

App. 512, 519-20, 849 P.2d 1239 (1993). The restitution statutes are "intended

to ensure that defendants fulfill their responsibility to compensate victims for

losses resulting from their crimes." State v. Gonzalez, 168 Wn.2d 256, 265, 226

1O'Neill's trial court brief requests a $21,995.66 offset which appears to be a mathematical error. The correct amount should be $11,995.66. 2 A trial court's order of restitution will not be disturbed on appeal absent an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).

2 No. 68466-3-1/3

P.3d 131 (2010). They expressly do not "limit civil remedies . . . available to the

victim, survivors of the victim, or offender." RCW 9.94A.753(9) (emphasis

added). And they allow judges "considerable discretion" to impose restitution "up

to double the offender's gain or the victim's loss." State v. Kinneman, 155Wn.2d

272, 282, 119 P.3d 350 (2005) (restitution statute "does not say that the

restitution ordered must be equivalent to the injury, damage or loss, either as a

minimum or a maximum, nor does it contain a set maximum that applies to

restitution"). Given the court's broad discretion and the civil remedies available to

O'Neill for her alleged losses, the court did not abuse its discretion in ordering

restitution without an offset.

Affirmed.

For the court:

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