State Of Washington v. Jacob Gregan ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 74437-2-1 co 0
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Respondent,
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JACOB D. GREGAN, UNPUBLISHED OPINION
Appellant. FILED: March 6, 2017
LEACH, J. — Jacob Gregan appeals the trial court's restitution order
following his assault conviction. He claims the State failed to show that his crime
caused the losses the court ordered him to pay. Because the trial court lacked a
reasonable basis to estimate some of the losses Gregan caused, we vacate the
restitution order and remand.
Background
On February 13, 2015, Gregan assaulted his ex-partner in his apartment.'
She fled, and Gregan followed her. Police officers arrived to find the two arguing
in the building's stairwell. Gregan walked away from the officers. They told him to
stop, but he left the building. When the officers caught up to Gregan, he raised his
hands as if to surrender. But as one of them—Officer Shier—grabbed Gregan to
take him into custody, Gregan charged him with his shoulder and head-butted him
Gregan's plea agreement stipulated to the facts in the certification for
determination of probable cause.
No. 74437-2-1 / 2
on the side of the head. Shier's head snapped back, and he saw a "flash of light."2
Gregan fled, but Shier and three other officers apprehended him, against his
resistance, a block away.
All four officers received treatment at Harborview Medical Center for injuries
they sustained in the arrest. Shier said he felt "dazed" from Gregan's head-butt.
Gregan pleaded guilty to two counts of fourth degree assault. He agreed
to pay restitution "to any victims who lost money or property as a result of crimes
[he] committed." The trial court ordered him to pay restitution in an amount it would
determine at a restitution hearing.
At the hearing, the State requested $2,235.16 in restitution. It submitted six
documents: an e-mail from a city workers' compensation claims analyst with an
attached workers' compensation payment report, a bill from Harborview Medical
Center, and three health insurance claim forms. The report listed payments to
several medical companies for services for Shier on February 13-14, 17, and 20,
and March 2. The services provided February 13-14 cost $ 701.59. The other
services cost $495.75. The report also listed two payments to Officer Shier totaling
$1,037.82. Handwriting on the printed report states that those payments were for
missed work from February 17-22, 2015. Each health insurance claim form
identified the reason for treatment as injuries suffered on February 13, 2015.
Gregan later admitted he "intentionally hit Officer Shier on the forehead
2
when [he] was being arrested."
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At the restitution hearing, Gregan's counsel agreed that Officer Shier was
treated at Harborview the day of the assault. He challenged the sufficiency of the
information before the court to support the rest of the State's restitution request.
No witnesses testified at the restitution hearing, and the State submitted no
declarations.3 The record does not disclose the identity of the author of the
handwriting on the report.
The trial court nonetheless found "a sufficient nexus between the requested
restitution and . . . the documentation that's provided." It accordingly found the
requested amount of restitution appropriate and ordered Gregan to pay it.4 Gregan
appeals.
Standard of Review
Where a statute authorizes a type of restitution, we review the restitution
order for abuse of discretion.5 The trial court abuses its discretion in applying an
incorrect legal analysis or committing another error of law.6
3 The State acknowledged its dearth of evidence at the hearing. Counsel
explained that she had recently been assigned the case and "it's nearly impossible
to get medical records in under a week." She further stated that she tried to contact
Officer Shier but "did not hear back." Counsel for Gregan countered that she made
multiple requests for the medical records before the State's current counsel took
the case.
" In finding causation, the trial court noted the "fairly tight time period" of the
billings. It also assumed that the city would not have paid Shier's worker's
compensation claim unless the injury was caused by the incident.
5 State v. Davison, 116 Wash. 2d 917, 919, 809 P.2d 1374 (1991).
6 State v. Tobin, 161 Wash. 2d 517, 523, 166 P.3d 1167 (2007).
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Analysis
Restitution Order
Gregan contends that the trial court abused its discretion in ordering him to
pay $2,235.16 in restitution for Officer Shier's medical bills and six days of missed
work. We agree in part.
The legislature designed the restitution statute to promote respect for the
law by providing just punishment.7 "Restitution is an integral part of sentencing,
and it is the State's obligation to establish the amount."8 Due process requires the
trial court to allow the defendant to refute evidence at a restitution hearing.8 It also
requires the court to base the restitution amount on reasonably reliable evidence.10
In determining that amount, the trial court may rely only on facts admitted in
the plea agreement or proved at a hearing.11 By statute, the court must base its
restitution order on only "easily ascertainable damages for injury to or loss of
property," actual expenses to treat injuries, and lost wages that result from
injuries.12
The State need not establish the amount of loss "with specific accuracy,"
but it must support its claim with "substantial credible evidence.'"13 "Evidence
supporting restitution is sufficient if it affords a reasonable basis for estimating loss
7 Davison, 116 Wash. 2d at 922.
8State v. Dedonado, 99 Wash. App. 251, 257, 991 P.2d 1216 (2000).
9 State v. Kisor, 68 Wash. App. 610, 620, 844 P.2d 1038 (1993).
10 Kisor, 68 Wash. App. at 620.
11 Dedonado, 99 Wash. App. at 256.
12 RCW 9.94A.753(3).
13 State v. Griffith, 164 Wash. 2d 960, 965, 195 P.3d 506 (2008) (quoting State
v. Fleming, 75 Wash. App. 270, 274-75, 877 P.2d 243 (1994)).
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and does not subject the trier of fact to mere speculation or conjecture."14 Where
a "defendant disputes facts relevant to determining restitution, the State must
prove the damages . . . by a preponderance of the evidence."15
Courts may order restitution "only for losses that are causally connected to
a crime."16 Courts ask whether, "but for" the crime, the victim would not have
suffered the loss.17 "A causal connection is not established simply because a
victim or insurer submits proof of expenditures."15 And "a summary of medical
treatment that 'does not indicate why medical services were provided[ ] fails to
establish the required causal connection between the victim's medical expenses
and the crime committed."19
In State v. Hahn,2° Division Two remanded restitution orders because the
State failed to provide enough evidence for the trial court "to estimate losses by a
preponderance of the evidence without speculation or conjecture." The defendant
assaulted two victims, causing them severe injuries. The State submitted a
summary report listing the amounts the State had paid to different medical
providers. Division Two reasoned that although the evidence showed that the
victims sustained substantial injuries, the State submitted "no statement linking the
14 State v. Kinneman, 155 Wash. 2d 272, 285, 119 P.3d 350 (2005) (internal
quotation marks omitted) (quoting State v. Hughes, 154 Wash. 2d 118, 154, 110 P.3d
192 (2005)).
15 Kinneman, 155 Wash. 2d at 285.
16 Kinneman, 155 Wash. 2d at 286.
17 Griffith, 164 Wash. 2d at 966.
18 Dedonado, 99 Wash. App. at 257.
16 State v. Dennis, 101 Wash. App. 223, 227, 6 P.3d 1173 (2000) (alteration
in original) (quoting State v. Bunner, 86 Wash. App. 158, 160, 936 P.2d 419 (1997)).
20 100 Wash. App. 391, 400, 996 P.2d 1125 (2000).
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charged amounts to any particular symptoms or treatments."21 The medical
reports for one victim contained "the name of the service provider, the service date,
date paid, billed amount and amount paid." For the other victim, "again the record
merely identifie[d] numerous medical services rendered either on the date of the
crime or shortly thereafter."22 Division Two found this record insufficient to
establish causation.23
This court reached the opposite conclusion for one victim in State v.
Dennis.24 The trial court ordered the defendant to pay restitution for injuries to
Officer Dornay. A letter from the prosecutor and the certificate of probable cause
stated that Dornay received treatment for his injuries at Northwest Hospital. The
State also presented a letter from the City of Seattle Workers Compensation Unit
that referred to an unpaid balance of $106.48, the amount the city had paid
Northwest Hospital to treat Dornay's injuries. The city's letter also noted the date
Dornay's injury occurred, which was the same day the defendant assaulted him.
This court found that together the letters "established the required causal
connection between Officer Dornay's injuries and Dennis's assault."25
21 Hahn, 100 Wash. App. at 399-400.
22 Hahn, 100 Wash. App. at 400.
23 Hahn, 100 Wash. App. at 400.
24 101 Wash. App. 223, 227-28, 6 P.3d 1173 (2000).
25 Dennis, 101 Wash. App. at 228. Dennis also challenged the order that he
pay restitution to a second officer, Libby. The prosecutor's letter stated that Libby
was also treated at Northwest Hospital. But unlike for Dornay, the State did not
submit evidence establishing the date Libby was treated. The State conceded that
it failed to establish restitution for Libby. Dennis, 101 Wash. App. at 226, 228.
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As in Hahn, the record here contains "no statement linking the charged
amounts for services after February 14 to any particular symptoms or
treatments."26 The report in Hahn listed only the service provider, dates, and dollar
amounts. Here, the pertinent documents similarly state facility names, dates of
treatment, date of injury, and costs. But they do not describe the services provided,
any diagnoses, or drugs prescribed.27 As in Hahn, the victim did not testify or
submit a declaration describing his injuries and treatment.28
We distinguish the State's evidence here from that in Dennis. Unlike the
victim in Dennis, who received restitution for treatment on only one date, which
corresponded with the date of his injury, Officer Shier received treatment on four
separate occasions.29 The State did not present evidence to connect any
treatment after February 14 with the assault; without "Indicat[ing] why medical
services were provided[ ],"30 the dates on the insurance claim forms are not
substantial credible evidence of such a connection.
With only a summary list of expenses and three claim forms—each lacking
diagnostic information or other details to link Shier's treatment to the crime—the
trial court lacked a reasonable basis to order restitution for Shier's medical
expenses on February 17 and 20 and March 2.
26 Hahn, 100 Wash. App. at 399-400.
27 While such information may be contained in the various codes used in
the payment report and health insurance forms, the State provided no explanation
of those codes.
28 See Hahn, 100 Wash. App. at 399-400.
29 See Dennis, 101 Wash. App. at 227-28.
30 Dennis, 101 Wash. App. at 227 (second alteration in original) (quoting
Bunner, 86 Wash. App. at 160).
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The record contains even less evidence to connect the assault to Shier's
lost wages. As noted above, Shier did not testify or sign an affidavit regarding his
injuries. The only information about them comes from the certification for
determination of probable cause, which states that Gregan head-butted Shier,
causing his head to snap back, that Shier saw a "flash of light," and that he later
said he felt "dazed." The State's only evidence of Shier's missed work days relies
on handwritten notes of unknown origin on the worker's compensation report.
Without testimony from Shier or medical documentation, this evidence is
insufficient to support a finding that Gregan's head-butt caused Shier to miss six
days of work beginning four days later.
The State had the burden of proving the restitution amount, including a
causal connection.31 The record before us lacks substantial credible evidence that
Gregan's assault caused Shier to incur some of the claimed losses. The trial court
therefore abused its discretion in ordering restitution for the amount the State
requested.
Appellate Costs
Gregan also asks this court to use its discretion to deny any appellate costs
the State may request as prevailing party. We do not decide this question because
Gregan substantially prevails on appea1.32
31 Dedonado,99 Wn. App. at 257.
32 See RAP 14.2.
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Conclusion
Because the State failed to present substantial credible evidence that
Gregan caused $2,235.16 in losses, we vacate the order and remand for further
proceedings consistent with this opinion. Because the parties did not adequately
brief the issue of whether the State may submit additional evidence on remand,
we leave that question for the trial court to decide on remand.33
WE CONCUR:
33 See Griffith, 164 Wash. 2d at 968 & n.6 (remanding while finding that parties
could not introduce new evidence because statute requires court to determine
restitution amount within 180 days of sentencing) (citing RCW 9.94A.753(1));
Dennis, 101 Wash. App. at 229-30 (vacating restitution without remand because
State could not have second opportunity to carry burden of proof as to causation).
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