State of Washington v. Jody Danielle Boring ( 2013 )

FILED
MAY 23, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30280-6-111
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JODY DANIELLE BORING, )
)
Appellant. )
KORSMO, C.J. Jody Boring appeals a $550,433 restitution order, claiming the
trial court erred in holding her jointly and severally liable because she was not convicted
as an accomplice. She also claims the trial court erred in finding a causal connection
between her role in the crime and all of the victim's material losses, and by denying her
request for a continuance to investigate the restitution claims. We affirm.
BACKGROUND
In 2005, Jody Boring's husband, Christopher, began working. at the Hewes Marine
Company (Hewes) factory in Colville, Washington. Hewes is a manufacturer of
aluminum fishing boats. In 2008, Hewes determined that someone was taking both
aluminum sheet and scrap material from its factory.
No. 30280-6-111
State v. Boring
In August 2007, a company named Bella Boats began selling scrap metals to
Action Recycling Inc. in Spokane. Bella Boats sold to Action a large amount of
aluminum 5052, a rare marine grade alloy that Hewes used in making boats. Mr. and
Mrs. Boring both signed invoices from Action on behalf of Bella Boats, and Action
employees recognized the couple as representatives of Bella Boats. Mrs. Boring would
occasionally deliver materials to Action, and each delivery usually consisted of several
hundred pounds of metal on a pallet.
While investigating the missing Hewes's materials, law enforcement officers
recovered two pallets of material that had been sold to Action by Bella Boats. Employees
identified the materials as belonging to Hewes based on the distinctiveness of the metal
as well as the markings on it.
The State charged Mrs. Boring with aggravated first degree trafficking in stolen
property, and alternatively charged her as an accomplice. 1 Mr. Boring admitted at trial to
taking the Hewes's materials and asking Mrs. Boring to deliver them to Action, but he
testified that Mrs. Boring was unaware the materials were stolen. Mrs. Boring also
testified that she delivered truckloads of aluminum and scrap metal, but denied knowing
the materials were stolen. The jury found Mrs. Boring guilty of the lesser degree offense
I The State charged Mr. Boring with aggravated first degree theft and aggravated
first degree trafficking in stolen property; he pleaded guilty to both charges. His appeal
to this court, cause no. 30283-1-111, is linked with this case for consideration.
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State v. Boring
of second degree trafficking in stolen property and also found that the crime was a major
economic offense or series of offenses.
At the beginning of the restitution hearing, Mrs. Boring sought a continuance to
obtain a witness who would testify that other employees were stealing metal from Hewes
during the same time period as the Borings. The State objected to the continuance,
contending it would establish the amount of restitution based on what the Borings sold to
Action rather than the amount of material Hewes reported as lost. The trial court denied
the continuance request.
Between August 2007 and August 2010, the Borings sold 226 loads of aluminum
to Action. They received a total of$213,758.52 for 360,799 pounds of aluminum at an
average of$.59 per pound. The State also presented evidence that the value of the
aluminum to Hewes was $556,133.00 based on the cost Hewes was paying for aluminum
between 2007 and 2010. Bill Hewes, a part owner and chief financial officer of Hewes,
presented evidence of hypothetical costs to Hewes based on three different assumptions
of the ratio between sheet metal and scrap metal in each of the pallets sold. He testified
that if the percentage of raw material to scrap material were 55 percent, the cost to Hewes
would be $481,219.00; ifit were 70 percent, the cost would be $556,133.00; and ifit
were 85 percent, the cost would be $631,048.00. Mr. Hewes contended that based on the
two recovered pallets, the 70 percent estimate would be conservative.
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The trial court entered a restitution order for $550,433.00, representing its estimate
of Hewes's losses. The trial court also found Mrs. Boring jointly and severally liable
with Mr. Boring. Mrs. Boring timely appealed to this court.
ANALYSIS
Mrs. Boring claims the court erred in finding she was jointly and severally liable
with Mr. Boring and that there was no causal connection between her actions and
Hewes's losses. She also claims the trial court erred by denying her request for a
continuance and in calculating the restitution award. We address each argument in tum.
Mrs. Boring's first argument is that she could not be held jointly and severally
liable for restitution because she was not convicted as an accomplice. The problem with
this argument is that it ignores the broad language of the restitution statute.
The authority to impose restitution is statutory. State v. Griffith, 164 Wn.2d 960,
965, 195 P.3d 506 (2008). The court shall order restitution "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). There is no requirement that a victim's damages be
foreseeable in order to support a restitution order. State v. Enstone, 137 Wn.2d 675,680­
82,974 P.2d 828 (1999). In interpreting the restitution statutes, we must "recognize that
they were intended to require the defendant to face the consequences of his or her
criminal conduct." State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007).
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Accordingly, the court should not engage in an overly technical construction that would
permit the defendant to escape from just punishment. Id. The legislature intended "to
grant broad powers of restitution" to the trial court. State v. Davison, 116 Wn.2d 917,
920,809 P.2d 1374 (1991).
We review a restitution order for an abuse of discretion. State v. Dedonado, 99
Wn. App. 251, 255-56, 991 P.2d 1216 (2000). A trial court abuses its discretion when its
decision is manifestly unreasonable or exercised on untenable grounds or for untenable
reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
While finding Mrs. Boring guilty, the jury was not specifically asked to find that
she was an accomplice. When entering the restitution order, the judge stated:
I want to say though that under law and I'm comfortable doing this, this is a
joint and several obligation. The jury found that there was uh an
accomplice here and uh in cahoots with her husband for three years uh
taking aluminum from his employer. And of course, her part I think was
probably a lesser part but uh nonetheless she was there mixed up in it and
uh this would be a joint and several uh liability on the part of both of them.
Report of Proceedings (Jan. 31,2012) at 96. The court ordered that Mrs. Boring
and Mr. Boring were jointly and severally liable for the total restitution amount.
"[T]he restitution statute sweeps far more broadly than the accomplice liability
statute, requiring neither knowledge nor foreseeability of the injury, but merely a causal
relationship." State v.Israel, 113 Wn. App. 243, 300, 54 P.3d 1218 (2002). Mrs. Boring
did not have to be convicted as an accomplice, or have knowledge that she was selling
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State v. Boring
stolen goods, to be liable for the restitution due to Hewes. The jury's verdict, supported
by her own testimony, was that she was selling the materials to Action at the request of
her husband. Their joint actions resulted in the loss and damage to Hewes; the trial court
did not err in ordering them jointly and severally liable.
Mrs. Boring also argues that there was no causal connection between her role in
the crime and all of Hewes's material losses. However, this argument ignores the fact
that her actions, which directly damaged the stolen property, were part of the overall
scheme to make a profit by recycling the stolen materials.
A court has statutory authority to impose restitution whenever a defendant is
convicted of an offense that results in loss of property. RCW 9 .94A. 753(5); Griffith, 164
Wn.2d at 965. Restitution is allowed solely for losses "'causally connected'" to the
crimes charged. Tobin, 161 Wn.2d at 524 (quoting State v. Kinneman, 155 Wn.2d 272,
286, 119 P.3d 350 (2005)). Losses are causally connected if, but for the charged crime,
the victim would not have incurred the loss. ld. A trial court has broad discretion in
making reasonable inferences regarding the causal connection between the crime and
expenses. State v. Pierson, 105 Wn. App. 160, 168, 18 P.3d 1154 (2001).
There is no requirement that a victim's damages be foreseeable in order to support
a restitution order. Enstone, 137 Wn.2d at 680-82. Where defendants are jointly and
severally responsible for the restitution, "[t]he relevant causal connection is between the
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damage and the committed offense ... not between the damage and [a defendant]'s
individual offense." State v. Hiett, 154 Wn.2d 560,564,115 P.3d 274 (2005).
Mrs. Boring argues that Hewes's losses resulted from her husband's theft of the
materials, an action that occurred before her criminal acts of selling the materials to
Action, and therefore she cannot be liable for those parts of the general scheme that
occurred before her own criminal activity under State v, Acevedo, 159 Wn. App. 221,248
P.3d 526 (2010).
In Acevedo, the defendant was found guilty of possession of a stolen motor
vehicle. The vehicle had been stripped and partially scrapped before it was recovered in
the defendant's possession; the trial court ordered the defendant to pay for the full value
of the car before it was stolen. ld. at 229. This court reversed the restitution order,
holding:
The Acura, then, was stripped before Mr. Acevedo bought it. No evidence
shows or suggests that Mr. Acevedo stole the car or possessed the car since
it was stolen or when it was damaged. Accordingly, no evidence shows
that the Acura would not be stripped "but for" Mr. Acevedo's possession of
it. The State, then, failed to show a causal connection between Mr.
Acevedo's crime and the damage to Mr. Wold's Acura.
ld. at 230-31.
Here, however, there was a causal connection between the loss suffered by Hewes
and the crime for which Mrs. Boring was convicted. Since Mr. and Mrs. Boring were
operating jointly, the relevant causal connection is between the damage and the actions of
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No.30280-6-II1
State v. Boring
stealing and selling the metal for profit rather than simply Mrs. Boring's individual
trafficking conviction. See Hiett, 154 Wn.2d at 564. Although Hewes suffered an initial
loss when Mr. Boring stole the materials, it was Mrs. Boring's actions in disposing of
them that damaged the materials to the point they were unrecoverable. But for Mrs.
Boring's actions, Hewes might have been able to recover the stolen materials. Unlike
Acevedo, where there was no evidence the defendant caused any of the damage to the
stolen property, Mrs. Boring's actions directly damaged the materials. It was the joint
actions of the Borings which led to the damages suffered by Hewes. The trial court did
not err in finding a causal connection between Mrs. Boring's role in the crime and all of
Hewes's material losses.
Mrs. Boring also challenges the denial of her request for a continuance to
investigate Hewes's restitution claims and the manner of calculating restitution.
The decision to grant or deny a motion for continuance rests within the sound discretion
of the trial court, and the reviewing court will not disturb the trial court's ruling absent a
showing that the trial court abused its discretion. State v. Bailey, 71 Wn.2d 191, 426 P.2d
988 (1967). When deciding whether to grant a continuance, trial courts may consider
many factors, including surprise, diligence, redundancy, due process, materiality, and
maintenance of orderly procedure. State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974);
RCW 10.46.080.
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Mrs. Boring sought a continuance to obtain a witness who would testify that other
employees were stealing metal from Hewes and show that Hewes did not accurately
calculate its losses. The trial court denied the motion on the grounds that if restitution
were derived from the Action records, then confounding issues like poor inventory
controls and other thieves would not be relevant to the amount of restitution. 2
The trial court did not abuse its discretion in denying the continuance. Since the
State did not prove restitution on the basis of Hewes's inventory, any evidence of other
employees stealing from Hewes was immaterial. The trial court did not abuse its
discretion by denying Mrs. Boring's request for a continuance.
The trial court also did not err in ordering restitution in the amount of
$550,433.00. Courts have broad discretion when determining the restitution amount.
Kinneman, 155 Wn.2d at 282. Ifa defendant disputes the restitution amount, the State
must prove the damages by a preponderance of the evidence. ld. at 285. Evidence is
sufficient to support a restitution order if it provides a reasonable basis, other than
conjecture or speculation, to estimate the loss. ld.; State v. Fleming, 75 Wn. App. 270,
274-75,877 P.2d·243 (1994). Restitution is not limited to cases where the damage
computation is simple. Kinneman, 155 Wn.2d at 285. The rules of evidence do not apply
2As noted previously, the State used receipts recovered from Action to show how
much the Borings sold there and also what it cost Hewes, based on its average costs
during that period, to originally obtain that aluminum.
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to restitution hearings. ER 1101(c); State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038(1993). Instead, basic due process concerns govern this situation-whether the defendant
had the opportunity to contest the evidence and whether the evidence was reasonably
reliable. Kisor, 68 Wn. App. at 620.
The restitution award was established by a preponderance of the evidence. The
State presented evidence of how much aluminum the Borings sold to Action and the dates
they sold it. The State then calculated the loss to Hewes by looking at the amount Hewes
paid for the aluminum in the corresponding year, and presenting estimates of the
percentage of the stolen materials that was likely raw aluminum as opposed to scrap
aluminum. Mrs. Boring takes issue with the fact that Hewes's estimated losses are far
greater than the profit made by the Borings, but Action was not paying full value for the
metal because it was recycling it. This discrepancy can be explained under a theory that
does not involve thefts by other employees, and it does not indicate that the restitution
order was in error. The trial court did not err in denying the motion for a continuance or
in awarding a restitution amount of$550,433.00.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
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RCW 2.06.040.
Korsmo, C.J.
WE CONCUR:
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