State Of Washington v. Michael Sayers

• Court: Court of Appeals of Washington
• Decided: March 10, 2014
• Docket: 69544-4
• Status: Unpublished

Opinion

The Court ofAppeals of the DIVISION I richard d. johnson, Court Administrator/Clerk State of Washington V0„nl0 eoo^nSSvS 600 University Street OdUlUH 98101-4170 (206)464-7750 March 10, 2014 TDD: (206)587-5505

Prosecuting Atty King County Kelsey K Schirman W554 King County Courthouse 516 3rd Ave Ste W554 516 Third Avenue Seattle, WA, 98104-2362 Seattle, WA, 98104 Kelsey.Schirman@kingcounty.gov paoappellateunitmail@kingcounty.gov

Nielsen Broman Koch Pile Jennifer J Sweigert Attorney at Law Nielsen Broman &Koch PLLC 1908 E Madison St 1908 E Madison St Seattle, WA, 98122 Seattle, WA, 98122-2842 Sloanej@nwattorney.net SweigertJ@nwattorney.net

CASE #: 69544-4-I State of Washington. Respondent v. Michael Savers. Appellant

King County, Cause No. 10-1-05793-1.KNT

Counsel:

Enclosed is a copy ofthe opinion filed in the above-referenced appeal which states in part: "Accordingly, we affirm the order of restitution."

Counsel may file a motion for reconsideration within 20 days of filing this opinion pursuant to RAP 12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to seek review by the Supreme Court, RAP 13.4(a) provides that if no motion for reconsideration is made, a petition for review must be filed in this court within 30 days.

In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost bill filed and served within ten days after the filing ofthis opinion, or claim for costs will be deemed waived.

Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to publish should be served and filed within 20 days ofthe date offiling the opinion, as provided by RAP 12.3 (e).

Sincerely,

Richard D. Johnson Court Administrator/Clerk

jh

Enclosure c: The Honorable Patrick Oishi Michael Lane Sayers •:%;V':-^

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 69544-4-1

Respondent,

v.

MICHAEL LANE SAYERS, UNPUBLISHED OPINION

Appellant, FILED: March 10,2014

Verellen, J. — As part of his plea agreement, Michael Sayers agreed to pay

restitution for all losses from and damages to a stolen excavator. Because the

State's evidence supporting the actual loss for the excavator was based on easily

ascertainable damages and proved by a preponderance of the evidence, the trial

court did not abuse its discretion in awarding restitution for the loss. Accordingly, we

affirm the order of restitution.

In December 2009, the owner of a truck and excavator reported those vehicles

stolen. The owner received reimbursement for the value of the excavator from his

insurance company in the amount of $19,197. In June 2010, police discovered that

Sayers possessed several pieces of stolen property, including the truck and the

excavator. An uncut key had been used to start the excavator, there was damage to

the access panel and the ignition, and the owner's logo had been painted over. No. 69544-4-1/2

The State charged Sayers with possession of a stolen vehicle and possession

of stolen property in the first degree. The charge of possession of stolen property

encompassed Sayers' possession of the excavator. As part of a plea agreement,

Sayers pleaded guilty to an amended charge of taking a motor vehicle without

permission in the second degree. He also agreed to pay restitution for "all losses

from and damages to the stolen truck, the stolen excavator, and their contents."1 In

return for the reduced charge, the State agreed not to file additional property crimes

against the defendant arising out of the same incident.

The court held a contested restitution hearing. The State asked that restitution

be granted to Safeco Insurance Company in the amount of $10,749.50. This was

calculated by subtracting the amount Safeco received when it sold the excavator as

salvage ($8,447.50) from the amount it paid on the claim ($19,197.00) The trial court

noted that the amount Safeco paid to the owner was based on the value of

comparable excavators.

The trial court found that the State proved by a preponderance of the evidence

that Safeco's actual loss was $10,749.50. It then ordered restitution to Safeco in that

amount.

The sole issue on appeal is whether the trial court abused its discretion in

awarding $10,749.50 in restitution to Safeco. Sayers argues that the amount of

restitution is unreasonable because it is not supported by the evidence and it was not

causally connected to his crime. We disagree.

1Clerk's Papers at 26. No. 69544-4-1/3

"A court's authority to order restitution is derived solely from statute."2 Ajudge must order restitution whenever a defendant is convicted of an offense that results in

loss of property.3 Generally, restitution is permitted only for losses that are causally connected to the charged crimes.4 But if the defendant expressly agrees to pay restitution for crimes for which he was not convicted, restitution properly extends to

the agreed items.5

The amount of restitution must be based "on easily ascertainable damages."6 While the claimed loss need not be established with specific accuracy, it must be

supported by substantial credible evidence.7 "'Evidence supporting restitution is

sufficient if it affords a reasonable basis for estimating loss and does not subject the

trier offact to mere speculation or conjecture.'"8 The State must prove the damages by a preponderance of the evidence.9

2State v. Gonzalez, 168 Wn.2d 256, 261, 226 P.3d 131 (2010). 3RCW 9.94A.753(5). 4State v. Griffith, 164 Wn.2d 960, 965-66, 195 P.3d 506 (2008) (quoting State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007)). 5 Id, (quoting State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998)). 6 Id, (quoting RCW 9.94A.753(3)). 7 \± (quoting State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994)). 8 Id. (internal quotation marks omitted) (quoting State v. Hughes, 154 Wn.2d 118, 154, 110P.3d 192(2005)). 9 Id. No. 69544-4-1/4

A decision to impose restitution is generally within the discretion of the trial

court, and the size of the award will not be disturbed on appeal absent an abuse of

discretion.10 "A court abuses its discretion only when its order is manifestly

unreasonable or untenable."11

Here, Sayers' agreement to pay "all losses from and damages to . .. the

stolen excavator" supports the restitution award, whether or not causally related to

the charged crimes.12 The amount of Safeco's loss is the difference between the

$19,197.00 Safeco paid to its insured and the $8,447.50 Safeco received when it

sold the excavator as salvage. Safeco's net loss of $10,749.50 is supported by the

record.

Sayers argues that the excavator was in the same condition when it was

recovered except for "minor" damage. He contends the award was an abuse of

discretion because either the "fair market value" Safeco paid to the owner was

inflated or the salvage value it received when it sold the excavator was unreasonably

low. But the fair market value paid to the owner is supported by the comparable

values documented by Safeco. And the damaged excavator was sold for salvage by

Safeco six months after it was stolen. It was within the discretion of the trial court to

conclude that Safeco, driven by a profit motive, neither overpaid its insured nor failed

10 State v. Gray, 174 Wn.2d 920, 924, 280 P.3d 1110 (2012). 11 jd 12 Clerk's Papers at 26; Griffith, 164 Wn.2d at 965-66. Sayers argues that State v. Dedonado, 99 Wn. App. 251, 991 P.2d 1216 (2000) requires more than submitting proof of the expenditures to replace stolen property. ]d\ at 257. But unlike here, a causal connection was necessary because Dedonado did not specifically agree to replace the damaged property as part of his plea agreement. Id. at 253. Therefore, Dedonado is distinguishable. No. 69544-4-1/5

to maximize its return on the damaged excavator. The $10,749.50 net loss suffered

by Safeco is not the result of speculation or conjecture. The amount of the restitution

award was adequately supported by the record and was within the discretion of the

trial court.

Affirmed.

WE CONCUR:

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