State Of Washington v. Donald David Gosney ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) (.,(1
) DIVISION ONE --;
Respondent, ) 7;
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) No. 74416-0-1 .."7D
v. ) (consol. with r‘,2-
) No. 74692-8-1)
) (;)cP
DONALD DAVID GOSNEY, )
) UNPUBLISHED OPINION
Appellant. )
)
) FILED: April 24, 2017
DWYER, J. — Donald Gosney appeals from two restitution orders imposed
upon him following his plea of guilty to one count of assaulting a police officer in
the third degree. Gosney asserts that the evidence presented at the restitution
hearings was insufficient to establish a causal relationship between his assault
on the officer and the medical expenses and wage loss the officer claimed.
There was sufficient evidence to support the trial court's order. The trial
court did not abuse its discretion. Accordingly, we affirm.
Gosney was charged with assault in the third degree and attempting to
elude a pursuing police vehicle. The State alleged that Gosney assaulted and
injured a police officer who was attempting to arrest him and then led police on a
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car chase. The officer suffered cervical strain as well as injuries to his shoulder,
face, scalp, neck, and leg. Gosney pleaded guilty to the charge of assault in the
third degree in exchange for dismissal of the charge of eluding a pursuing police
vehicle. His guilty plea was to real facts as set forth in the certificate of probable
cause.
As part of Gosney's guilty plea, he agreed to pay full restitution in an
amount to be determined at a restitution hearing. At the subsequent restitution
hearing, the State presented evidence that the amount of losses incurred was
$61,581.16. To prove these losses, the State introduced ledgers from the
Department of Labor and Industries (L&I), detailing the providers who treated the
injured officer, the dollar amount of their services, and the dates on which the
treatments occurred. The cover letter from L&I provided the date of injury,
injured party, and claim number. Some of the officer's treatment consisted of
psychological counseling. The L&I ledgers also included amounts paid by the
department to compensate the officer for wages lost as a result of his injuries. All
of the L&1 documentation was related to the same claim number.
At the restitution hearing, Gosney challenged the State's evidence,
arguing that it did not sufficiently establish causation between his assault of the
officer and the losses claimed. The trial judge stated that she was familiar with
industrial insurance law and documentation and ruled that the evidence
presented was sufficient to establish $54,496.23 in losses. The trial court did,
however, reserve ruling on whether there was sufficient evidence to establish
that the costs of psychological treatments were related to Gosney's assault of the
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officer. The trial court set a second restitution hearing, allowing the State to
provide more evidence to prove that the psychological treatment was causally
related to the assault.
At the second restitution hearing, the State provided additional evidence,
including a letter from the officer's therapist—signed under penalty of perjury—
stating that the psychological treatment she provided was related to the assault.
The State also provided an e-mail from the officer, stating that, as a result of
Gosney assaulting him, he sought psychological counselling. The State
additionally provided an e-mail from an L&I adjudicator, stating that the
psychiatric services paid by the department were related to Gosney's assault on
the officer. At the conclusion of the second restitution hearing, the trial court held
that there was sufficient evidence that Gosney's assault of the officer caused the
expenses for psychological services.
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Gosney first asserts that the trial court erred by entering two restitution
orders against him, totaling $61,581.16. This is so, Gosney avers, because there
was insufficient evidence from which the trial court could conclude that his
actions were the proximate cause of the claimed losses. We disagree.
Pursuant to RCW 9.94A.750(5), a court may order restitution "whenever
the offender is convicted of an offense which results in injury to any person or
damage to or loss of property." An order of restitution may be based on "easily
ascertainable damages for injury to or loss of property, actual expenses incurred
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for treatment for injury to persons, and lost wages resulting from injury." RCW
9.94A.750(3).
The standard of review for a restitution order is abuse of discretion. State
v. Davison, 116 Wash. 2d 917, 919, 809 P.2d 1374(1991)(citing State v. Morse, 45
Wash. App. 197, 199, 723 P.2d 1209 (1986)). A trial court abuses its discretion
when it exercises it in a manifestly unreasonable manner or on untenable
grounds. State v. Enstone, 137 Wash. 2d 675, 679-80, 974 P.2d 828(1999)
(quoting State v. Cunningham, 96 Wash. 2d 31, 34, 633 P.2d 886 (1981)).
The rules of evidence do not apply at restitution hearings. State v.
Pollard, 66 Wash. App. 779, 784, 834 P.2d 51 (1992). Evidence supporting a
restitution award is sufficient if it affords a reasonable basis for estimating loss
without subjecting the trier of fact to "'mere speculation or conjecture." State v.
Deskins, 180 Wash. 2d 68, 82-83, 322 P.3d 780(2014)(internal quotation marks
omitted)(quoting State v. Hughes, 154 Wash. 2d 118, 154, 110 P.3d 192(2005)).
Facts supporting a restitution award must be proved by a preponderance
of the evidence. State v. Kinneman, 155 Wash. 2d 272, 285, 119 P.3d 350(2005).
Restitution is allowed only for losses that are "causally connected'to the crimes
charged, meaning that, but for the charged crime, the victim would not have
incurred the loss. State v. Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506(2008)
(internal quotation marks omitted)(quoting State v. Tobin, 161 Wash. 2d 517, 524,
166 P.3d 1167 (2007)).
Here, the State presented evidence relating to the officer's injuries and
treatment. The original information and statement of probable cause described
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the assault on the officer and Gosney's subsequent flight from justice. It
contained information that the officer received injuries to his shoulder, spine,
face, neck, scalp, and leg. The trial court received an e-mail from the officer
stating that the psychological therapy he received stemmed from those injuries.
Furthermore, the trial court received an e-mail from the officer's psychiatrist,
signed under penalty of perjury, stating that the treatment she provided was
related to the assault. Additionally, the trial court received an e-mail from the
third party adjudicator, confirming that the psychiatric treatment was related to
the assault. Finally, the trial court received 30 pages of L&I documentation listing
the date of injury applicable to the claim number, the medical treatments the
officer received, the dates on which the treatments occurred, the treatment
providers, and the cost of the treatments—all under a single claim number.
The L&I documentation was of particular import. In order to receive any
compensation for medical treatments resulting from a work place injury, an
injured worker must follow specific documentation rules promulgated by the
Department of Labor and Industries pursuant to its statutory authority under Title
51 RCW.
These rules provide, in pertinent part, that:
The first attending provider must immediately complete and
forward a report of the injury or illness to the department or self-
insurer and instruct and assist the injured worker in completing
his/her portion of the report of the injury or illness. In filing a claim,
the following information is necessary so there is no delay in
adjudication of the claim or payment of compensation.
(a) Complete history of the work related accident or
exposure.
(b) Complete listing of positive physical findings.
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(c) Specific diagnosis with the current federally adopted ICD-
CM code(s) and narrative definition relating to the injury.
(d) Type of treatment rendered.
(e) Known medical, emotional or social conditions which may
influence recovery or cause complications
(f) Estimate time-loss due to the injury or illness.
WAC 296-20-025(3).
To receive compensation for wage loss, an employee must also follow the
above provisions of WAG 296-20-025(3). Wage loss is compensated pursuant to
the rules in RCW 51.32.090 and 51.32.060, pertaining to temporary disability
from a work-related injury.
The trial court indicated that it was familiar with L&I procedures and L&I
ledgers. The fact that the trial court had experience with L&I claims indicates that
the trial court understood the particular showing required to successfully assert a
claim for L&I benefits. This includes the requirement that the injured worker and
his physician provide "[c]omplete history of the work related accident,"
"[c]omplete listing of positive physical findings," and "[s]pecific diagnosis," before
any claim may be paid. WAG 296-20-025(3)(emphasis added). The fact that
the Department of Labor and Industries paid the officer's claims gives rise to an
inference that the payments were made according to the law. The trial judge was
entitled to credit this inference in deciding whether there was sufficient evidence
of causation between Gosney's assault of the officer and the restitution amount
claimed. This is so both as to the medical costs claimed and the wage losses
incurred. While the documentation showed that the officer missed three days of
work in the immediate aftermath of the assault, it also supported the court's
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conclusion that other work was missed as a result of the officer's need to attend
medical appointments, treatment, and the like.
Gosney asserts that the evidence provided at the restitution hearing was
"merely speculative." This assertion is without merit. The evidence was
sufficient to afford the trial court a reasonable basis for estimating loss. Deskins,
180 Wash. 2d at 82. In fact, the evidence established the losses with particularity.
The detailed L&I ledgers set forth payments made for treatment all listed under a
single claim number, with the first treatments beginning on the day Gosney
assaulted the officer. See State v. Dennis, 101 Wn. App 223, 228,6 P.3d 1173
(2000)(dated hospital bill coupled with testimony that defendant assaulted the
officer on the same day was sufficient evidence that defendant caused the
officer's injuries). Gosney provided nothing to refute the State's evidence. The
only claim that was merely speculative was Gosney's assertion that the L&I
payments might have been made contrary to law.
Gosney's citation to State v. Dedonado, 99 Wash. App. 251, 991 P.2d 1216
(2000), a per curiam opinion decided without the benefit of oral argument, does
nothing to alter our analysis. That case dealt with payments made by a private
insurer—not payments made by the government pursuant to a detailed,
complicated statutory and regulatory scheme. The concerns addressed in that
case do not here exist.
There was ample evidence from which the trial court could conclude that
Gosney's criminal actions caused the medical expenses and wage loss incurred
by the officer. There was no abuse of discretion.
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III
Gosney argues that the court should not impose appellate costs against
him because he is indigent. Should such a request be made, the issue is best
addressed in accordance with recently amended RAP 14.2.
Affirmed.
We concur:
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