State Of Washington v. Vinod Chandra Ram ( 2016 )

2916 JUL 25 ^ -: *°
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73759-7-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
VINOD CHANDRA RAM,
Appellant. FILED: July 25, 2016
Appelwick, J. — Ram was convicted of conspiracy to commit identity theft
in the first degree and 16 counts of identity theft in the first degree. The trial court
ordered restitution to be paid to the 16 victims of Ram's crimes. Ram argues that
the trial court erred in setting the payees and amount of restitution. We affirm.
FACTS
Ram was convicted of conspiracy to commit identity theft and 16 counts of
identity theft. The charges were related to his unauthorized use of 18 companies'
fuel account cards.1
Companies with fleets of vehicles, such as trucking companies, often use
fuel cards issued by fuel companies. These cards allow the companies' drivers to
1 Ram was initially charged with the identity theft of 18 victim companies.
One count was dismissed when a company employee failed to testify at trial, and
the jury acquitted Ram of another count.
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purchase fuel at unattended "card lock" stations by swiping the card and entering
a personal identification number (PIN). Two major fuel companies in Washington
are Associated Petroleum Products (APP) and PetroCard.
The evidence at trial showed that Ram was the leader of a ring that used
stolen and cloned fuel cards to purchase fuel at card lock stations. Ram's
accomplices, Manny Chuks and Damiun Prasad, testified that they used fuel cards
and PIN numbers that Ram had given them to activate the fuel pumps. The fuel
cards Ram gave them sometimes looked like normal fuel cards with colors and
writing on them, and sometimes the cards were completely blank. Ram and his
accomplices gave the truck drivers a discount below the retail price of the fuel.
These truck drivers paid Ram for the fuel using cash.
Employees from 17 companies testified at trial, and invoices from each
company were admitted into evidence. Many of these invoices had been
highlighted and marked by company employees to indicate which purchases were
unauthorized.
The jury found Ram guilty of conspiracy to commit identity theft in the first
degree and 16 counts of identity theft in the first degree.
The court later held a restitution hearing. The State requested restitution
for all of the victim companies that Ram was convicted of defrauding. These
companies were: Genesee Heating & Fuel Co., PetroCard for Knight Transport,
Security Contractor Services, Jackson Oil Company, General Teamsters Local
174, James J. Williams Bulk Service Transport, Bartelson Transport, Graham
Trucking Inc., General Transport, Port-Pass, Schnitzer Steel Industries, Metals
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Express, Diamond Express Auto Transport, Quality Towing, C&C Logging, and
Marc Nelson Oil Products Inc. for Freres Lumber Co. The State relied on the
evidence admitted at trial.
Ram submitted the declaration of his investigator, Ray Ward. Ward stated
that he spoke with PetroCard and APP representatives. Ward claimed that these
representatives told him that Genesee Fuel & Heating Co., General Teamsters
Local 174, James J. Williams Bulk Service Transport, Graham Trucking Inc., Port-
Pass, Schnitzer Steel Industries, and Metals Express did not make any payments
toward the fraudulent purchases. And, Ward asserted that the PetroCard and APP
representatives told him that PetroCard and APP replaced the inventory and wrote
off the loss for these transactions.
The court ultimately decided to enter the restitution order as the State
requested. In reaching this decision, the court noted that it had reviewed Ward's
declaration, which "raises some interesting issues." But, the court was persuaded
that the State had met its burden.
Ram appeals the order of restitution.
DISCUSSION
Ram argues that the trial court erred in awarding restitution to the trucking
companies in the amount of the retail price of the fuel. He contends that the fuel
companies were the true victims, and their loss is not equal to the price they
charged for the fuel.
The authority to impose restitution is purely statutory. State v. Davison, 116
Wash. 2d 917, 919, 809 P.2d 1374 (1991). When the type of restitution ordered is
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authorized by statute, the trial court has discretion to impose restitution, jd. This
court does not reverse a restitution order absent an abuse of discretion. Id.
RCW 9.94A.753(3) requires that a restitution order "shall be based on easily
ascertainable damages for injury to or loss of property, actual expenses incurred
for treatment for injury to persons, and lost wages resulting from injury." It specifies
that restitution shall not include intangible losses. RCW 9.94A.753(3). And, it
provides that "[t]he amount of restitution shall not exceed double the amount ofthe
offender's gain or the victim's loss from the commission of the crime." RCW
9.94A.753(3). For purposes of this statute, "victim" is defined as "any person who
has sustained emotional, psychological, physical, or financial injury to person or
property as a direct result of the crime charged." RCW 9.94A.030(54).
A restitution order must be based on a causal relationship between the
crime proven and the victim's damages. State v. Dauenhauer, 103 Wash. App. 373,
378, 12 P.3d 661 (2000). Once the fact of damage has been established, the
amount need not be shown with mathematical certainty. State v. Mark, 36 Wn.
App. 428, 434, 675 P.2d 1250 (1984). Evidence supporting a restitution order is
sufficient if it provides a reasonable basis for estimating loss. State v. Dedonado,
99 Wash. App. 251, 256, 991 P.2d 1216 (2000).
Ram contends that Ward's declaration proves that the defrauded trucking
companies were not the proper victims for purposes of restitution. He argues that
these companies did not suffer any losses as a result of Ram's actions, so the
restitution award is a windfall for them.
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The State argues that Ram does not have standing to make this argument,
because it asserts the rights of the fuel companies that may wish to be substituted
as payees. The State compares this case to State v. Tobin, 132 Wash. App. 161,
130 P.3d 426 (2006, affd, 161 Wash. 2d 517, 166 P.3d 1167 (2007). Tobin pleaded
guilty to charges related to his theft of geoducks and crab. 132 Wash. App. at 164-
65. The court awarded restitution to be distributed first to the State and then
allocated by agreement among the State and several Native American tribes. Id.
at 166. The court adopted the State's calculations regarding the total amount of
restitution. Id at 165-66. On appeal, Tobin argued that the restitution order
erroneously included geoducks that belonged to a Native American tribe, and to
which the State had no right. ]a\ at 180. The court of appeals rejected this
argument, because Tobin had no standing to assert the interests of the Native
American tribes, jd.
Unlike Tobin, Ram is not merely asserting one victim's right to the proper
allocation of the restitution among several victims. Ram asserts that the court
identified the wrong payees and as a result the wrong measure of restitution. He
is asserting his own rights, not the rights of the fuel companies. Therefore, we
decline the State's invitation to decide this case on the basis of standing.
Here, the trucking companies were the direct victims of Ram's crimes. Ram
used stolen and cloned fuel cards to purchase fuel. The true owners of those fuel
cards were billed for the purchases. They incurred a financial liability to pay those
No. 73759-7-1/6
charges as a direct result of Ram's actions.2 The State proved the amount of each
company's financial liability at trial through the testimony of the companies'
employees and their invoices. We hold that the trial court did not err in ordering
restitution to be paid to the trucking companies.
Ram has the right to dispute the amount of the restitution order. Here, the
fuel distributors had contractual relationships with the victims which protected their
right to payment. Ram asserts that the fuel companies waived payment from the
trucking companies. Therefore, he argues that the fuel companies are the proper
payees and the loss should be valued based on their loss rather than the waived
invoice prices.
In support of this argument, Ram cites cases from other jurisdictions.
Because the power to order restitution is purely statutory, out-of-state cases are of
little utility in interpreting Washington's restitution statutes.3
And, Ram's argument concerning the amount of restitution is premised on
his theory that the proper payees were APP and PetroCard. Because we conclude
that the trial court did not err in ordering restitution to be paid to the victim trucking
2Ram cites State v. Martinez, 78 Wash. App. 870, 899 P.2d 1302 (1995) for
the proposition that indirect losses cannot support a restitution order. But, the
Washington Supreme Court explicitly rejected this proposition in State v.
Kinneman, 155 Wash. 2d 272, 287, 119 P.3d 350 (2005). Moreover, this argument
has no relevance here, where the trucking companies incurred direct losses
because of Ram's actions. Ram suggests that the trucking companies did not
actually incur the losses. We disagree.
3Ram argues that this case is directly analogous to People v. Chappelone.
183 Cal. App. 4th 1159,107 Cal. Rptr. 3d 895 (2010). But, the California restitution
statute gives much more specific guidelines on how to calculate restitution when
the victim has suffered economic loss. Compare Cal. Penal Code §
1202.4(f)(3)(A), with RCW 9.94A.753(3). We do not view Chappelone as
persuasive authority.
No. 73759-7-1/7
companies rather than the fuel companies, Ram's argument about the amount of
restitution becomes largely irrelevant.4
Additionally, the amount of restitution is a matter squarely within the
discretion of the trial court. State v. Pollard. 66 Wash. App. 779, 785, 834 P.2d 51
(1992). So long as the amount of damages is supported by substantial credible
evidence at the restitution hearing, this court will not find an abuse of discretion.
Id. During trial, the State produced invoices from all of the victim companies.
These invoices showed the cost of the unauthorized fuel purchases. And,
employees from all of the companies testified as to the amount of unauthorized
purchases charged to their companies. These amounts were the retail amount of
the fuel—the price the victim companies owed to the fuel companies for the
purchases.
Ram essentially asks us to require the State to also prove that each
company had not been reimbursed or released from their obligation to pay. To do
so would be to add a requirement not found in the statute before restitution can be
ordered for any theft case. Such an additional requirement is not in line with one
of the purposes of the restitution statutes—to require the defendant to face the
consequences of his or her crimes. See State v. Enstone, 137 Wash. 2d 675, 680,
974 P.2d 828 (1999). Such changes are left to the legislature. Here, the trial court
4 We note that the restitution order does appear to list two fuel companies
as payees rather than the direct victims: Mark Nelson Oil Products, Inc. for Freres
Lumber Co. and PetroCard for Knight Transport.
No. 73759-7-1/8
provided that the restitution order could be amended to reflect a change in payee,
if the State learns that any of the victim companies have been reimbursed.5
Based on this evidence, the trial court did not abuse its discretion in setting
restitution in the retail amount of the fuel.
We affirm.
WE CONCUR:
TV%dkoy A174 Wash. 2d 920, 927, 935, 280 P.3d 1110(2012)
(holding that courts may modify the total amount of restitution after 180 days).
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