State Of Washington v. Jacob Nelson Hollar ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, cjn ^t> **
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No. 71812-6-1 O --"^
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UNPUBLISHED OPINION """
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JACOB NELSON HOLLAR, ••
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Appellant. FILED: April 20, 2015
Dwyer, J. — Jacob Hollar pleaded guilty to one count of theft in the third
degree and one count of assault in the second degree. As part of his plea
agreement, Hollar agreed to pay restitution to the victim of his crimes, Michael
Johnson. However, at the restitution hearing, Hollar objected to Johnson's
valuation of the personal property that was stolen. On appeal, Hollar maintains
that the trial court violated his due process rights when it ordered him to pay
restitution for Johnson's stolen personal property. We disagree and, therefore,
affirm.
I
On June 20, 2013, just before midnight, Johnson was beaten and robbed
by Hollar and two other men while walking on Second Avenue in Seattle. Hollar
struck Johnson in the back of the head with a skateboard. When Johnson fell to
the ground, Johnson was punched and kicked by the other two assailants. One
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of the assailants took Johnson's purse, and all three fled the scene on foot.
Johnson was treated at Harborview Medical Center for injuries sustained in the
attack, including a scalp laceration that required several staples to close.
After Hollar was apprehended, Johnson identified Hollar as the initial
assailant. Hollar admitted to assaulting Johnson. Hollar stated that Johnson had
been flirting with him and he had decided to "take care of the problem." Hollar
denied taking Johnson's purse.
Thereafter, Hollar was charged by second amended information with one
count of theft in the third degree pursuant to RCW 9A.56.050 and one count of
assault in the second degree pursuant to RCW 9A.36.021. Hollar pleaded guilty
to both counts. In doing so, he signed a plea agreement requiring him to pay
restitution in full—in an amount to be determined—for all losses sustained by
Johnson.
A restitution hearing was held. The State presented medical bills for
treatment of Johnson's injuries caused by the attack, as well as a victim loss
statement signed by Johnson under penalty of perjury. In this statement,
Johnson listed several items of personal property taken during the attack,
including a cell phone ($100.00), an identification card ($16.00), a Coach purse
($250.00), and makeup ($20.00).
While Hollar's counsel did not object to restitution for Johnson's medical
expenses, she did object to restitution for the personal property included in
Johnson's victim loss statement.
The trial judge overruled this objection. The judge stated that she could
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take judicial notice of what a Coach purse was worth, given that she owned such
a purse. The judge found,
[Johnson's] not asking for an excessive amount here. I know that
Coach purses are expensive. Makeup is—seems pretty
reasonable. The ID card is probably just a replacement cost. And
then the cell phone, boy, cell phones can go from—anywhere from
50 to a couple hundred. I don't see anything untoward here.
Hollar's counsel responded, "My concern is just that we don't know if
[Johnson] had a used Coach purse or something . . . bought from a consignment
store."
The judge shared this concern. However, given the State's "fairly low"
burden of proof—preponderance of the evidence—the judge concluded that the
victim loss statement was sufficient to support the State's request for restitution
regarding Johnson's missing personal items.
The total amount of restitution was $1,396.39. Of that, $908.82 was for
Johnson's medical bills paid for by the Crime Victim's Compensation Program.
The remainder, $487.57, was for Johnson's missing personal property and one
medical bill that the Compensation Program did not cover.
Hollar appeals.
II
Hollar contends that the trial court abused its discretion by ordering
restitution for Johnson's personal property in the amount of$386.00.1 Hollar
argues that the State failed to meet its burden of proof as to damages, which
1Hollar did not challenge the trial court's ruling as to the medical bill that was not covered
by the Compensation Program.
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resulted in a violation of his due process rights. We disagree.
"Restitution shall be ordered whenever the offender is convicted of an
offense which results in . . . damage to or loss of property." RCW 9.94A.753(5).
Moreover, where the prosecution recommends it and the offender agrees, the
offender must also pay restitution to a victim of an offense that is not prosecuted
pursuant to a plea agreement. RCW 9.94A.753(5).
The trial court has discretion to determine the amount of restitution. State
v. Davison. 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). Such a determination
will be overturned only for an abuse of discretion. Davison, 116 Wn.2d at 919.
The court abuses its discretion when the restitution decision is "'manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.'"
State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999) (internal
quotation marks omitted) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633
P.2d 886 (1981)).
"If a defendant disputes the restitution amount, the State must prove the
damages by a preponderance of the evidence." State v. Griffith, 164 Wn.2d 960,
965, 195 P.3d 506 (2008). The amount of restitution must be based on "easily
ascertainable damages." RCW 9.94A.753(3). While certainty of damages need
not be proved with specific accuracy, the evidence must be sufficient to provide a
reasonable basis for estimating loss. State v. Pollard, 66 Wn. App. 779, 785, 834
P.2d 51 (1992). Evidence that subjects the trier of fact to speculation or
conjecture is insufficient. Pollard, 66 Wn. App. at 785.
The rules of evidence do not apply at restitution hearings. State v. Kisor,
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68 Wn. App. 610, 620, 844 P.2d 1038 (1993). Nevertheless, due process
requires that the defendant have an opportunity to refute the evidence presented
and that the evidence be reasonably reliable. Pollard, 66 Wn. App. at 785.
"When the evidence is comprised of hearsay statements, the degree of
corroboration required by due process is not proof of the truth of the hearsay
statements 'beyond a reasonable doubt,' but rather, proof which gives the
defendant a sufficient basis for rebuttal." Kisor, 68 Wn. App. at 620.
Washington courts follow the prevailing rule that "the owner of a chattel
may testify as to its market value without being qualified as an expert in this
regard." McCurdvv. Union Pac. R. Co., 68 Wn.2d 457, 468, 413 P.2d 617(1966): accord State v. Hammond, 6 Wn. App. 459, 461, 493 P.2d 1249 (1972).
In this matter, Johnson, the owner of the stolen chattel, submitted a sworn
declaration listing each item of property that was stolen and the corresponding
value of each item. As the owner, Johnson was competent to testify to the
market value of the commonplace items of personal property that had been
stolen without being qualified as an expert witness.
However, Hollar contends that Johnson's declaration did not constitute
sufficient evidence to satisfy the State's burden of proof as to damages, owing to
the absence of "documentation supporting the value estimates." Appellant's Br.
at 4. In support of his contention, Hollar relies on Kisor. His reliance on that
decision is misplaced.
In Kisor, the defendant was ordered to pay $17,380 in restitution to the
State after he killed a police dog. 68 Wn. App. at 613-14. The restitution award
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was based entirely on a hearsay affidavit submitted by a Clark County employee,
whose job title was "risk manager." Kisor, 68 Wn. App. 613-14. The court
observed that the affidavit was not credible, owing to the affiant's failure, for the
most part, to indicate where she had "obtained the figures as to the cost of
purchasing the animal and training it and the dog's handler." Kisor, 68 Wn. App.
at 620. The affiant's credibility was further undermined by her reliance on an
advertisement from the "West Virginia Canine College," which contained "nothing
. . . that supports the figures advanced by [the affiant]." Kisor, 68 Wn. App. at
620. The court concluded that the "affidavit is not substantial credible evidence
of the restitution figure set by the court." Kisor, 68 Wn. App. at 620 (emphasis
added).
Contrary to Hollar's contention, Kisor does not require that a declaration
submitted by an owner of stolen property be corroborated by "documentation
supporting the value estimates" in order to constitute sufficient evidence as to
proofof damages. Instead, Kisor stands for the unremarkable proposition that an
award of restitution, when based entirely on an incredible valuation given by
someone other than the rightful owner of the property at issue, cannot be
sustained.
Here, Johnson was the owner of the missing chattel and, thus, qualified
and competent to testify as to the value of the chattel based on personal
knowledge. Moreover, unlike the affiant in Kisor, Johnson's credibility has not
been undermined. The State needed only to adduce evidence sufficient to
provide a reasonable basis for estimating loss. Johnson's declaration satisfied
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this requirement.2
Affirmed.
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We concur:
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2Owing to our conclusion, we need not consider Hollar's contention that the trial judge
erred in taking judicial notice of the value of a Coach purse.