State Of Washington v. Steven Benjamin Kennedy ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80892-3-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
STEVEN BENJAMIN KENNEDY,
Appellant.
SMITH, J. — Steven Kennedy appeals a restitution order awarding
$7,526.89 to the Department of Social and Health Services (DSHS) for amounts
paid for medical care for Louis Johnson after Kennedy shot Johnson in the face.
Because Kennedy fails to establish any abuse of discretion in the trial court’s
order, we affirm.
FACTS
Around 7:30 a.m. on December 19, 2017, Patricia Kaiser and her
boyfriend Louis Earl Johnson Jr. drove her 10-year-old son and 3-year-old
daughter to Steven Kennedy’s apartment so that Kennedy, her ex-boyfriend and
the father of her daughter, could watch the children while she worked. As Kaiser
was assisting the children, Kennedy became angry because she forgot her son’s
coat and called her a “bitch.” As Johnson got out of the passenger side of the
car, saying to Kaiser, “‘Baby, let’s go,’” Kennedy shoved Kaiser, handed back her
daughter and went around to the passenger side of the car. As Kaiser helped
Citations and pin cites are based on the Westlaw online version of the cited material.
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the children get back into the car, Kennedy confronted Johnson, who was
standing next to the open front passenger door. Kaiser’s son, C.W., saw
Kennedy approach Johnson and tell him to “mind his own business.” As C.W.
watched, Kennedy pulled out a gun and shot Johnson as he was getting back in
the car. Kaiser heard the gunshot and saw Johnson fall to the ground. When
she saw that Kennedy had shot Johnson in the face, Kaiser thought he was dead
and feared for her life and the children’s lives. C.W. called his grandmother, who
later described the boy as “hysterical,” and told her that Kennedy had just shot
Johnson. Kennedy called 911, first telling the dispatcher that he had “‘committed
a murder,’” and then, upon recognizing that Johnson was still alive, told the
dispatcher that Johnson was “‘one lucky son-of-a-bitch.’”
At Harborview Medical Center, health care providers discovered that the
bullet had entered the left side of Johnson’s face and exited from the right side,
breaking his upper and lower jaws and his palate. In addition to performing a
tracheotomy and multiple surgeries, doctors wired shut his jaw and kept him
heavily sedated in the intensive care unit. When police contacted him on
January 8, 2018, Johnson was finally alert and conscious but unable to speak, a
condition his doctors expected to last for another six weeks. Johnson provided a
written statement indicating that he witnessed Kennedy arguing with Kaiser and
pushing and/or hitting her, that he got out of the car and told Kaiser to get the
children so they could just leave, and that he was getting back into the car when
he heard, “‘You need to mind your own business,’” and “‘then everything went
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black.’” Johnson reported his belief that Kennedy was jealous and that Kennedy
intended to kill him.
The State charged Kennedy with first degree assault with a firearm
enhancement. Kennedy pleaded guilty to second degree assault with a firearm
under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970); see also State v. Newton, 87 Wash. 2d 363, 552 P.2d 682 (1976). In his
plea agreement, Kennedy agreed to pay restitution under RCW 9.94A.753 in an
amount to be determined. For the sentencing hearing, Johnson submitted a
victim impact statement indicating that he is disabled as a result of the shooting
and experiencing ongoing mental health symptoms and ongoing procedures.
On November 4, 2019, Hollie Nuanes, a restitution investigator with the
King County Prosecutor’s Victim Assistance Unit, sent a memorandum to
Kennedy’s attorney requesting agreement for restitution consisting of $432.31 as
identified by Johnson for his glasses and $7,526.89 as identified by DSHS for
medical claims it paid for Johnson’s health care. Nuanes attached an e-mail
exchange with Tamra Derrick of the DSHS Office of Financial Recovery showing
that (1) Derrick sent Nuanes a ledger showing $7,526.89 in charges and stating
that “[t]here were other charges, but not that were paid through Medicaid,” (2)
Nuanes responded with a request to “verify all listed items on [the] ledger stem
from and are related to injury that occurred on 12/19/2017,” and (3) Derrick
answered, “Yes.” Nuanes also attached two receipts provided by Johnson for
eyeglasses for $209.00 on April 18, 2016, and $223.31 on April 7, 2016.
Kennedy did not agree to the requested restitution.
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At a hearing on November 19, 2019, the trial court considered the State’s
restitution request. Kennedy objected, arguing that the documentation provided
was insufficient to meet the State’s burden of proof or satisfy due process.1
Relying on State v. Hahn, 100 Wash. App. 391, 996 P.2d 1125, review granted and
case dismissed, 141 Wash. 2d 1025 (2000), Kennedy argued that the State failed to
meet its burden “to prove the causal relationship between the . . . crime and the
medical records and the restitution amount sought.” The State pointed out that
Derrick confirmed that the charges were related to the crime. After pausing the
hearing to review Hahn, the trial court determined that the State met its burden
and Hahn could be distinguished
because in Hahn, there was absolutely nothing that, except for
circumstantial evidence that would cause the Court to speculate as
to whether or not the medical bills there were causally connected.
Here we have more than that. I have an email from the Department
of Social and Health Services, as well as the person who is
collecting the information. That does make the causal connection
that these listed items are from the injury that occurred on 12/19/17.
As for the glasses, the trial court found that the State had not met its
burden because the receipt for eyeglasses was dated 2016, but there was no
indication in the probable cause certification that Johnson was wearing glasses
at the time the crime was committed.
The trial court entered an order setting restitution at $7,526.89 to be paid
into the court registry for DSHS.
Kennedy appeals the restitution order.
1Kennedy waived his presence at the hearing but was represented by
counsel.
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ANALYSIS
Kennedy argues that the trial court exceeded its authority and violated his
right to due process by imposing restitution for DSHS expenditures when the
State failed to prove a causal connection to the crime.2 The State contends that
the trial court did not abuse its discretion in determining the reliability of the
State’s evidence. We agree with the State.
We review a trial court’s order of restitution for abuse of discretion. State
v. Tobin, 161 Wash. 2d 517, 523, 166 P.3d 1167 (2007). The plain language of the
restitution statute, RCW 9.94A.753, demonstrates the legislature’s intent to grant
broad discretion to the trial court in awarding restitution and discourages an
“overly technical construction that would permit the defendant to escape from just
punishment.” Tobin, 161 Wash. 2d at 524.
When the evidence supporting a restitution request is disputed, the State
must show a reasonable basis for estimating the loss by a preponderance of the
evidence. State v. Deskins, 180 Wash. 2d 68, 82-83, 322 P.3d 780 (2014). The
trial court “may rely on a broad range of evidence—including hearsay—because
the rules of evidence do not apply,” but may not rely on speculation or
conjecture. Deskins, 180 Wash. 2d at 82-83 (citing ER 1101(c)(3)).
Relying on State v. Dennis, 101 Wash. App. 223, 227, 6 P.3d 1173 (2000),
and State v. Bunner, 86 Wash. App. 158, 160, 936 P.2d 419 (1997), Kennedy
2 Kennedy filed a statement of additional grounds for review identifying as
a ground for review “[t]he failure of the hospital to connect the hospital bills to the
act committed by Steven Kennedy.” As it appears this is essentially the same
issue raised by counsel, we do not analyze it separately.
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contends that the State failed to produce sufficient evidence to show a causal
connection between the December 17, 2019, assault and the charges identified
by DSHS. In Dennis, this court affirmed a restitution order based on the amount
paid by the city’s worker’s compensation unit to a hospital for providing treatment
to one police officer victim on the date of the charged assault and reversed the
restitution order as to a second police officer victim because a similar record did
not specify the date of treatment. Dennis, 101 Wash. App. at 228. In Bunner, the
State presented only “a DSHS medical recovery report listing medical services
charged and amounts the State had paid,” and the trial court “relied upon the
inference that DSHS’s Office of Provider Services would not have paid the
medical bills if they were not related to Bunner’s crimes.” Bunner, 86 Wash. App. at
159-60. On appeal, the State conceded that the DSHS report did not show a
causal relationship to the crime and this court reversed the restitution order as
based on insufficient evidence to connect the costs incurred with the crime.
Bunner, 86 Wash. App. at 159, 162.
Contrary to the circumstances in Dennis and Bunner, the trial court here
relied on the combination of the ledger and Derrick’s e-mail confirmation that the
charges were related to the crime, rather than speculation or inference.
Accordingly, we are not persuaded that Dennis and Bunner dictate a different
result.
Moreover, we reject Kennedy’s claim that the trial court violated his right to
due process by relying on the e-mails exchanged by Nuanes and Derrick. Due
process requires providing the defendant an opportunity to refute the evidence
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presented in support of a restitution request and that the evidence is reliable.
State v. Pollard, 66 Wash. App. 779, 784-85, 834 P.2d 51 (1992); see also State v.
Hotrum, 120 Wash. App. 681, 684, 87 P.3d 766 (2004) (due process satisfied when
defendant was present and had opportunity to present evidence at restitution
hearing).
At the hearing, Kennedy argued that the “single email” with a “one word
response from the Office of Financial Services” (1) did not show “who Ms. Derrick
even would be” or why “she would have any knowledge of [whether] the items
listed on the ledger are related to the date in question”; (2) lacked corroboration;
and (3) was hearsay. Kennedy also argued that the defense had no burden to
investigate the reliability of Derrick’s e-mail or obtain more information, as the
State bore the burden of producing sufficient evidence to support a restitution
award. Here, Kennedy argues that the e-mail is not reliable because it “was not
even signed under penalty of perjury,” does not “even carry with it the formality of
a full sentence such that this Court can be certain Derrick was responding to the
actual question posed,” and he had “no opportunity to rebut it.”
Our review of the record establishes that the trial court heard and
considered Kennedy’s objections to the e-mails, but disagreed as to their weight
and persuasiveness, finding instead “that the emails are reliable.” The trial court
did not abuse its discretion or violate Kennedy’s due process rights in making
that determination.
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Affirmed.
WE CONCUR:
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