State of Washington v. Nathaniel Dean Mowen
Opinion
FILED
JANUARY 22, 2019
In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35536-5-III ) (consolidated with Respondent, ) No. 35564-1-III ) No. 35582-9-III)
v. )
)
NATHANIEL DEAN MOWEN, )
)
Appellant. )
STATE OF WASHINGTON, )
)
Respondent, )
)
v. ) UNPUBLISHED OPINION )
JOSEPH THEODORE JONES, )
)
Appellant, )
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
THOMAS KEITH ROBERTSON, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Appellants Nathaniel Mowen, Joseph Jones, and Thomas Robertson appeal the trial court’s restitution order of $76,670. Because the trial court improperly limited cross-examination on the issue of damages, we reverse and
State v. Mowen
remand for a new restitution hearing.
FACTS
Intruders broke into a storage trailer and stole three or four garbage bags of processed marijuana. Security guard Steven Dikes chased the intruders and recovered one of the bags, which was dropped during the pursuit. He told police that each bag had approximately $15,000 to $20,000 worth of processed and packaged marijuana. He also said that a security camera nearest the entry door had been aimed toward the wall instead of the room.
Police followed footprints from the trailer that led to vehicle tracks. The business owner, Edward Rhinehart, told police that he suspected the theft was committed by Wayne Jones, a current employee, Joseph Jones and Thomas Robertson, former employees, and Nathaniel Mowen.
Police went to speak with Mowen and found a large amount of marijuana residue on his back bumper. They also noticed a similarity between his vehicle tread and the tread pattern they saw near the burgled storage trailer.
Mowen implicated Joseph Jones and Thomas Robertson. Mowen said Jones broke down the trailer door, and they took three or four bags of marijuana. Mowen said they
State v. Mowen
then returned to his place and split the bags. Mowen had one full bag of marijuana in his garage and two empty bags with marijuana shake residue in them.
Mowen told police that Jones was at the apartment of Jessica Reese. After police took Jones into custody, Reese allowed police to look in the attic, where police found two garbage bags full of packaged marijuana. Approximately 40 pounds of product was recovered.
The State charged Mowen, Jones, and Robertson with (1) second degree burglary (2) first degree theft of marijuana, (3) possession of marijuana with intent to deliver, (4) possession of more than 16 ounces of marijuana, and (5) third degree malicious mischief (to the trailer door). The trio pleaded guilty to some of the counts, including second degree burglary and malicious mischief. The trial court sentenced each of the men, assessed various legal financial obligations (LFOs) against each, and set a joint restitution hearing.
Rhinehart testified at the joint restitution hearing. He testified that 31,071 grams of marijuana was stolen in the burglary and, of that amount, only 18,711 grams was recovered. Rhinehart testified that the market value of his product at the time of the burglary was $3 per gram. He further testified that the recovered product was substantially damaged, and had to be sold at a discount of 75 cents per gram. He
State v. Mowen
estimated his total loss at $37,080 for the missing product, and $14,033 for the damaged product. These two figures total $51,113. He further testified that the cost of replacing the trailer door was $800, and the cost of replacing the damaged security camera was $200.
On cross-examination, Mowen sought to establish that Rhinehart could have sold the damaged marijuana for an amount greater than for what he sold it. The State objected, and the trial court sustained the objection.
The trial court found that Rhinehart’s damages were $52,113, and increased that amount by 50 percent. The trial court calculated the restitution award to be $76,670.1 The trial court ordered the trio to be jointly and severally liable for the amount.
Mowen, Jones, and Robertson appeal from the restitution award and assessment of LFOs.
ANALYSIS
Mowen, Jones, and Robertson filed separate briefs, and each have differing arguments why the restitution award is improper. We analyze their arguments separately.
1 $52,113.00, increased by 50 percent, actually is $78,169.50.
State v. Mowen
A. MOWEN’S CHALLENGE: FAILURE TO PERMIT CROSS-EXAMINATION ON DAMAGES
Mowen argues the trial court erred when it restricted his right to cross-examine Rhinehart on the issue of damages. We agree.
The following exchange occurred during the restitution hearing:
[Mowen]: Isn’t it true that—marijuana flower is only one product in a whole litany of products that you produce.
[State]: Objection. Relevance.
THE COURT: I’ll sustain—
[Mowen]: Your Honor,—
THE COURT: —the objection. You have to explain why it’s relevant, when we’re only talking about the product stolen here,—
[Mowen]: Your Honor, this is—
THE COURT: —and the restitution amount.
[Mowen]: This—This question is relevant, your Honor, because—I have reason to believe that the losses claimed here—really aren’t a loss at all; in fact,—this marijuana could have been—could have been sold as a separate product, say, for example, trim, marijuana trim can still be sold and recovered.
[State]: And I would renew the same objection.
THE COURT: I’m going to sustain the objection.
I guess my thought there would be, do you think that he could have recovered more than what he now says—a greater value?
If he’d—. If he somehow sold it as trim he’d get a greater price? Is that what you’re telling this court?
[Mowen]: Your Honor, I’m simply saying that—25—he’s claiming a 25 percent loss.
THE COURT: I’m just asking, are—you think the value of that product that he lost—damage—he could have gotten a greater price for?
[Mowen]: Yes, your Honor. I’m talking about mitigation.
State v. Mowen
THE COURT: Then you’ll have to at some point present that. But at this point I’m going to sustain the objection. You can present your own testimony.
Mowen Report of Proceedings (RP) (Aug. 23, 2017) at 58-60.
A hearing to determine restitution amounts must meet minimum due process requirements, including the right to cross-examine witnesses. State v. Raleigh, 50 Wn. App. 248, 254, 748 P.2d 267 (1988); State v. Mark, 36 Wn. App. 428, 435, 675 P.2d 1250 (1984) (Due process is satisfied when the restitution hearing affords the opportunity to present testimony, cross-examine witnesses, and other trial protections.).
Both the Washington and federal constitutions protect the right to cross-examine witnesses. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lee, 188 Wn.2d 473, 486-87, 396 P.3d 316 (2017). The right to cross-examine a witness is not absolute and is limited by considerations of relevance. Lee, 188 Wn.2d at 487. Reviewing courts evaluate the limitation of cross-examination by considering three factors: (1) whether the evidence is at least minimally relevant, (2) whether the State demonstrates the evidence is so prejudicial as to disrupt the fairness of the fact-finding process, and (3) whether the State’s interest in excluding prejudicial evidence outweighs the defendant’s need for the information sought. Id. at 488 (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)).
State v. Mowen
“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 . . . .” RCW 9.94A.753(5). This requires proof that the losses claimed are causally connected to the crime. State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). The causal connection is determined by applying a “but for” test—but for the crime, the loss would not have occurred. State v. Griffith, 164 Wn.2d 960, 966, 195 P.3d 506 (2008).
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