State of Washington v. David Michael Romish ( 2019 )

FILED
FEBRUARY 7, 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. 35643-4-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
DAVID MICHAEL ROMISH, )
)
Appellant. )
PENNELL, A.C.J. — Restitution is a penalty applicable to the crime of possession
of stolen property. But because possession of stolen property is different from the
underlying crime of theft, the scope of permissible restitution for mere possession is
generally more limited than it would be for theft. When it comes to a conviction for
unlawful possession of stolen property, the State must prove a specific connection
between the defendant’s conduct and damage to property or other losses. The State is not
relieved of its burden simply because the property possessed by the defendant was stolen
recently.
No. 35643-4-III
State v. Romish
David Romish pleaded guilty to possessing recently-stolen property. The State
sought restitution for all losses associated with the property, including physical damage.
There was no specific evidence of when Mr. Romish came into possession of the stolen
property or when the damage occurred. Nevertheless, the State reasoned that one could
infer Mr. Romish caused the damage based on the short time between the theft and when
the stolen property was discovered in Mr. Romish’s possession.
We reject the State’s retrospective theory of causation. Without specific evidence
that Mr. Romish’s offense preceded the victim’s losses, the trial court lacked authority to
impose restitution for all of the victim’s losses. The order of restitution is therefore
reversed.
FACTS
On August 23, 2016, Mr. Romish was found in possession of a Bobcat front loader
and other property that had been reported stolen a week earlier. Mr. Romish was charged
with possession of stolen property and pleaded guilty. In his guilty plea statement, Mr.
Romish admitted to knowingly possessing stolen property, but he denied altering the
condition of any of the property in his possession. Mr. Romish also did not indicate when
he came into possession of the stolen property.
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No. 35643-4-III
State v. Romish
At the July 13, 2017, plea and sentencing hearing, counsel for Mr. Romish agreed
that restitution could be ordered if the State showed a causal connection between the
damage to the Bobcat and Mr. Romish’s possession of it, but expressed doubts that the
State could establish such a connection. Defense counsel reiterated that Mr. Romish
denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed
damages and requested a separate hearing on restitution.
A restitution hearing was held October 12, 2017, and the only witness to testify
was the owner of the stolen property. The owner detailed the damage that had been
sustained by the Bobcat as a result of the theft. He explained that the Bobcat had been
repainted in a haphazard manner and that a taillight had been broken. Although there did
not appear to be any functional damage, the owner had the Bobcat serviced, just to make
sure. Receipts showed the service, repair and repainting costs totaled $4,897.42. In
addition to having the Bobcat repaired and serviced, the owner testified he had to rent
replacement equipment during the period that the Bobcat was unavailable for use in his
excavation business. Rental fees were incurred not only for the period that the Bobcat
was missing as stolen, but also for the time the Bobcat was out of commission for service
and repairs. The total rental cost was $4,928.46.
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State v. Romish
On cross-examination, the property owner denied knowing who stole the Bobcat or
who had repainted it. The owner testified that the paint on the Bobcat was neither fresh
nor wet when it was recovered. And the property owner denied seeing any paint at the
location where the Bobcat was recovered.
After the close of evidence, the trial court ordered Mr. Romish to pay restitution
for all costs associated with the disappearance, repair and repainting of the Bobcat.
The court recognized Mr. Romish had not been convicted of stealing the Bobcat.
Nevertheless, the court reasoned it could find at least by a preponderance of the evidence
that the damage to the Bobcat had occurred while it was in Mr. Romish’s possession.
The total amount of restitution was set at $9,825.88.
Mr. Romish appeals.
ANALYSIS
A court’s authority to impose restitution is derived entirely from statute. State v.
Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506 (2008). On appeal, our initial step is to
discern whether the type of restitution ordered by the trial court was authorized by statute.
See State v. Tobin, 161 Wash. 2d 517, 523-24, 166 P.3d 1167 (2007). The legal aspect of
this inquiry involves de novo review. State v. Acevedo, 159 Wash. App. 221, 229-30,
248 P.3d 526 (2010). Underlying factual findings are reviewed for substantial evidence.
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No. 35643-4-III
State v. Romish
Griffith, 164 Wash. 2d at 965. Restitution unauthorized by statute must be stricken. Id. at
967-68.
A trial court is authorized to impose restitution for “an offense which results in
injury to any person or damage to or loss of property.” RCW 9.94A.753(5). Our courts
have interpreted this authorization to mean that there must be a causal connection
between a victim’s losses and the defendant’s offense. Griffith, 164 Wash. 2d at 965.
“Losses are causally connected if, but for the charged crime, the victim would not have
incurred the loss.” Id. at 966. If a defendant challenges the restitution amount sought by
the State, the State must prove causation and damages by a preponderance of the
evidence. State v. Kinneman, 155 Wash. 2d 272, 285, 119 P.3d 350 (2005). Only after a
causal connection has been established does the sentencing court gain broad discretion
to order restitution amounts within the statutory limits. See State v. Tetters, 81 Wash. App.
478, 481, 914 P.2d 784 (1996); RCW 9.94A.753(3).
The law of restitution relies on causation, and that reliance creates a distinction
between theft and possession 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, 164 Wash. 2d at 967 (alteration in
original) (quoting State v. Griffith, 136 Wash. App. 885, 894, 151 P.3d 230 (2007))
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No. 35643-4-III
State v. Romish
(Schultheis, J. dissenting). A thief is responsible for all damages incurred in connection
to the victim’s loss of property, even if not individually caused by the thief or specifically
foreseeable. Tobin, 161 Wash. 2d at 524 (foreseeability not required); State v. Hiett, 154
Wash. 2d 560, 564, 115 P.3d 274 (2005) (Restitution damages for taking a motor vehicle
without permission need not be caused by individual defendant.). But a defendant
convicted simply of possessing stolen property is only responsible for damage actually
sustained during the course of his or her possession. Tetters, 81 Wash. App. at 480-81.
When a defendant has been convicted of possessing—but not the theft of—stolen
property, sentencing courts must ensure a true causal connection links the defendant’s
conduct to the victim’s losses. The mere fact that property was recently stolen does not
permit inferring causation. Id. (one week between theft of items from stolen vehicle and
defendant’s possession of vehicle was insufficient to establish basis for full restitution),
cited with approval in Hiett, 154 Wash. 2d at 565-66. Instead, we require more specific
evidence tying the defendant’s conduct to the victim’s losses.
No such evidence was presented in Mr. Romish’s case. The record indicates
neither when Mr. Romish came to possess the Bobcat, nor when it was damaged.
Although the Bobcat was found in a barn at Mr. Romish’s residence, there was no
evidence of painting supplies or recent painting activities at that location. Nor were there
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No. 35643-4-III
State v. Romish
shards of glass or plastic that might signify the tail light had been broken at Mr. Romish’s
residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least
some time had passed between the repainting of the Bobcat and the date of its recovery by
law enforcement.
The evidence presented at the hearing does not link Mr. Romish’s criminal
conduct to many of the victim’s claimed damages. No evidence was presented that might
lead one to believe the Bobcat would not have been repainted or the taillight broken “but
for” Mr. Romish’s possession. Acevedo, 159 Wash. App. at 230-31. In like manner, there
is no reason to think Mr. Romish’s possession of the Bobcat was the “but for” cause of
the victim’s rental fee expenses prior to the offense conduct date of August 23, 2016.
Given these circumstances, the order of restitution must be reversed. Id.
Although we reverse the trial court’s restitution order, we recognize Mr. Romish
should still be held accountable for some restitution. See Griffith, 164 Wash. 2d at 967-68.
There is sufficient causal connection between Mr. Romish’s offense and at least a portion
of the victim’s damages. Most obviously, Mr. Romish can be held responsible for rental
fees incurred on the date of his offense conduct, August 23, 2016. In addition, the record
indicates the victim would have had the Bobcat serviced, regardless of how long it had
been missing. Thus, there is a “but for” connection linking the service costs and related
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No. 35643-4-III
State v. Romish
rental fees to Mr. Romish’s conduct. See Kinneman, 155 Wash. 2d at 287 (A victim’s
compensable losses include investigative costs.).
We remand Mr. Romish’s case for a new restitution hearing. On remand, the trial
court has discretion to calculate the amount of restitution causally connected to Mr.
Romish’s August 23, 2016, offense conduct date. This would include service costs, rental
fees for the day the Bobcat was discovered in Mr. Romish’s possession, and rental fees
for the period that the Bobcat was out of use for servicing. But pursuant to the terms of
this opinion, restitution cannot include the costs of repainting the Bobcat or replacing the
taillight. Also excluded are rental fees incurred prior to August 23 or for the period that
the Bobcat was out of use solely for repainting and repair of the tail light. Because new
evidence on remand would conflict with the requirement that restitution be set within 180
days after sentencing, RCW 9.94A.753(1), the evidence considered by the court must be
limited to the existing record. 1 Griffith, 164 Wash. 2d at 968 n.6.
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Mr. Romish contends the trial court erroneously relied on a probable cause
affidavit at his original restitution hearing. Because the trial court’s limited reliance on
the probable cause affidavit is not relevant to the causation analysis set forth in this
opinion, this claim is moot. On remand, the court’s assessment of the restitution amounts
for servicing of the Bobcat and for post-offense rental fees will be limited to the existing
record.
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No. 35643-4-111
State v. Romish
CONCLUSION
We vacate the trial court's restitution order and remand this matter for a new
restitution hearing, limited to the existing record.
Q_
Pennell, A.CJ.
I CONCUR:
a)·Llow~.~·
Siddoway, J.
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No. 35643-4-III
KORSMO, J. (dissenting in part) - I believe it was within the trial judge's fact-
finding authority to infer that Mr. Romish was responsible for the need to repaint the
Bobcat and the other expenses associated with the defendant's possession of it. Most
certainly, the restitution order was justified under the court's authority to double the
victim's proven losses. Accordingly, I would affirm.
Trial courts have statutory authority to impose restitution on defendants convicted
of a crime. RCW 9A.20.030( 1) provides in part:
If a person has gained money or property or caused a victim to lose money
or property through the commission of a crime, upon conviction thereof ...
the court ... may order the defendant to pay an amount, fixed by the court,
not to exceed double the amount of the defendant's gain or victim's loss
from the commission of a crime. Such amount may be used to provide
restitution to the victim at the order of the court.
A court's decision respecting the amount of restitution is reviewed for abuse of
discretion. State v. Tobin, 161 Wash. 2d 517,523, 166 P.3d 1167 (2007); State v. Davison,
116 Wash. 2d 917, 919, 809 P.2d 1374 (1991). Discretion is abused when it is exercised on
No. 35643-4-III
State v. Romish-Dissent
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12,
26, 482 P.2d 775 (1971 ).
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). 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." Tobin, 161 Wash. 2d at 524. 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. Davison, 116 Wash. 2d at 920.
Restitution must be established by a preponderance of the evidence. State v.
Kinneman, 155 Wash. 2d 272, 285, 119 P.3d 350 (2005). Evidence is sufficient to support a
restitution order if it provides a reasonable basis, other than conjecture or speculation, to
estimate the loss. Id.; State v. Fleming, 75 Wash. App. 270, 274-75, 877 P.2d 243 (1994).
Restitution is not limited to cases where the damage computation is simple. Kinneman,
155 Wash. 2d at 285. Since restitution is an aspect of the sentencing process, the Rules of
Evidence do not apply. ER 110l(c)(3); State v. Kisor, 68 Wash. App. 610, 620, 844 P.2d
103 8 (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 Wash. App. at 620.
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No. 35643-4-III
State v. Romish-Dissent
Here, Mr. Romish had the ability to contest the restitution request and did so by
cross-examining the Bobcat's owner, although he did not present any testimony of his
own. He also did not challenge the prosecutor's incorporation of the affidavit of facts
into the restitution hearing memorandum. The Bobcat was stolen in the early morning of
August 16, 2016. Clerk's Papers at 1-4. Mr. Romish pleaded guilty to possessing the
stolen Bobcat on August 23, 2016. The question before us is whether the trial court erred
by inferring that the physical damages (painting and damaged taillight) occurred during
the 14-16 hours that defendant admittedly possessed the Bobcat instead of during the 6
days when the Bobcat was stolen and/or possessed by persons unknown. I think the trial
court was quite able to infer that the painting occurred during Mr. Romish's possession of
the Bobcat and that he bears the responsibility for that expense. The Bobcat simply was
not gone long enough that the court was required to believe someone else caused the
damages; it was reasonable to conclude that Mr. Romish was the responsible party.
At a minimum, those costs, along with the rental costs that the majority is
reversing, were well within the court's discretionary authority under the doubling
provision of RCW 9A.20.030(1). For both of those reasons, I would affirm. The trial
judge carefully and thoughtfully considered the case, and did so with all relevant
statutory and due process concerns in mind. He rejected the restitution request that was
not supported by any live testimony, while giving full restitution to the claim that was
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No. 35643-4-111
State v. Romish-Dissent
supported, at least in part, by the victim's testimony. On this record, there simply was no
abuse of discretion.
For the noted reasons, I respectfully dissent.
Kor~.
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