Successful Appeals

                            NOV. 20, 2012
                   In the Office of the Clerk of Court
                 WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  29908-2-III
                                                )
                      Respondent,               )
                                                )
              v.                                )
                                                )
[Name Redacted],                                )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J.  [Name Redacted] appeals the trial court's $20,000 restitution 

order after she pleaded guilty to a reduced charge of third degree theft in an Alford plea

and agreed to pay restitution to [Name Redacted].  The restitution amount is within the 

law, the plea agreement, the evidence range, and the trial court's discretion.   [Name Redacted]'s 

remaining statement of additional grounds for review (SAG) mainly raises

matters outside this record that we cannot review.  Accordingly, we affirm.          

                                            FACTS

       Ms. [Name Redacted] and [Name Redacted] were married for two years. Years later, Mr. 

[Name Redacted] moved into an apartment connected to Ms. [Name Redacted]'s home.  In May 2009, 

[Name Redacted] left his apartment for about six months due to a no-contact order in an 

unrelated case.  When he returned, he discovered the majority of his property was 

missing.  Following an investigation, the State charged Ms. [Name Redacted] with one count of 

first degree theft, three counts of second degree theft, one count of conspiracy to commit 

theft of a vehicle, and one count of presenting a false insurance claim.  Eventually, as part 

of a plea agreement, Ms. [Name Redacted] entered an Alford plea to third degree theft and agreed 

to be accountable for restitution as determined by the court.  In exchange, the State 

dismissed the more serious charges.  

       To establish a factual basis for the plea, Ms. [Name Redacted] agreed the trial court could 

review the affidavit of probable cause. The affidavit stated Ms. [Name Redacted] had been 

ordered, "not to remove any of Mr. [Name Redacted]'s belongings from the house they shared."  

Clerk's Papers (CP) at 1316.  But, "[w]hile he was away she took a significant amount of 

his personal items."  Id.  The affidavit further noted Ms. [Name Redacted] took, "over 800 books 

and ammunition worth about $20,000." It further set forth a list of items totaling "several 

more thousand dollars." CP at 1316-17.  At the plea hearing, the State noted, "I notice 

that you didn't read the entire Affidavit of Probable Cause, which is understandable.  It's 

quite lengthy. There was a significant amount of items that were taken from the victim in 

the case."  Report of Proceedings (RP) (Feb. 18, 2010) at 7.  Defense counsel then stated, 

"[T]he only thing I would ask to add to the record would be that she'll be responsible for 

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whatever the Court deems is proven at the restitution hearing, not necessarily what's

incorporated in the probable cause statement." RP (Feb. 18, 2010) at 8. The trial court 

responded, "[c]ertainly." RP (Feb. 18, 2010) at 8. The trial court sentenced Ms. 

[Name Redacted] and set a hearing to determine the amount of restitution owed to Mr. [Name Redacted]. 

       At the restitution hearing, Mr. [Name Redacted] claimed $30,058.62 in listed missing 

items he claimed were connected to Ms. [Name Redacted]'s theft.  He derived his values from 

the Internet.  Generally, he set $15,924.22 for missing ammunition, and $14,134.67 for 

all other missing items listed.  Ms. [Name Redacted] conceded she sold some of Mr. [Name Redacted]'s 

books for $561.99, but she generally disclaimed causal responsibility for the rest of the 

items.  The court considered restitution testimony from several witnesses regarding the 

nature and extent of Mr. [Name Redacted]'s loss before the State asked the trial court to order 

$60,000 for restitution, approximately double the claimed loss.  

       The trial court ordered $20,000 restitution.  The trial court noted it had reviewed 

the affidavit of probable cause and stated, "The best that I can do given the testimony and

evidence that has been presented to me is conclude first of all she probably won't be able 

to pay restitution back. That's probably not going to happen so I'm not sure what

meaning this decision of mine has but best I can do is to indicate she owes $20,000 

restitution."  RP (April 13, 2011) at 17-18. Ms. [Name Redacted] appealed.  

                                         ANALYSIS

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       The issue is whether the trial court erred by abusing its discretion in ordering 

$20,000 restitution.  Ms. [Name Redacted] contends Mr. [Name Redacted]'s loss was not causally 

related to the crime, Mr. [Name Redacted]'s loss values are inaccurate, and the court failed to 

explain how it reached $20,000. 

       A court has statutory authority to impose restitution whenever a defendant is 

convicted of an offense that results in loss of property. RCW 9.94A.753(5); State v. 

Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008).  Restitution is allowed solely for 

losses "'causally connected'" to the crimes charged.  Griffith, 164 Wn.2d at 965 (internal 

quotation marks omitted) (quoting State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 

(2007)).  The question is "whether, 'but for' the crime, the damages would have 

occurred."  Tobin, 161 Wn.2d at 526.  We review the court's restitution order for an 

abuse of discretion.  State v. Dedonado, 99 Wn. App. 251, 255, 991 P.2d 1216 (2000).  A 

court abuses its discretion when its 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).

       Losses are causally connected if, but for the charged crime, the victim would not 

have incurred the loss.  Tobin, 161 Wn.2d at 524. A trial court has broad discretion in 

making reasonable inferences regarding the causal connection between the crime and 

expenses.  State v. Pierson, 105 Wn. App. 160, 168, 18 P.3d 1154 (2001).  Courts have 

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broad discretion when determining the restitution amount.  State v. Kinneman, 155 Wn.2d 

272, 282, 119 P.3d 350 (2005).  If a defendant disputes the restitution amount, the State 

must prove the damages by a preponderance of the evidence.  Id. at 285.  

       Ms. [Name Redacted] pleaded guilty to third degree theft as part of a plea agreement that 

reduced serious charges that reflected a sizable property loss.  She then agreed, "the judge 

will order me to make restitution . . . restitution may be up to double my gain or double 

the victim's loss." CP at 7.  Mr. [Name Redacted] provided a detailed list of the items taken, 

estimating replacement values through Internet research.  The total was $30,058.62.  The 

State requested $60,000 in restitution, an amount slightly less than double Mr. 

[Name Redacted]'s claimed loss.  The court noted Ms. [Name Redacted]'s limited resources and reduced 

it to $20,000.  

       Ms. [Name Redacted] admitted taking property.  Between the affidavit of probable cause 

and the testimony at the restitution hearing, the State provided sufficient factual 

information to establish the amount of loss.  This evidence provided tenable grounds for 

the court to set the restitution at $20,000, an amount within the evidence range and the 

court's statutory authority.  The State presented evidence showing Mr. [Name Redacted]'s loss 

was causally related to Ms. [Name Redacted]'s crime and established the replacement figures by 

a preponderance of evidence to the court's satisfaction.  The court thus acted within its 

discretion in setting restitution at $20,000.  

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       Pro se, Ms. [Name Redacted] raises several concerns in her SAG relating to the restitution 

order.  Since most of her concerns have been adequately addressed by counsel, they will 

not be reviewed again.  See RAP 10.10(a) (purpose of SAG is to permit appellant "to 

identify and discuss those matters which the defendant/appellant believes have not been 

adequately addressed by the brief filed by the defendant/appellant's counsel").

Remaining is whether the State's witnesses had conflicts of interest and perjured 

themselves during the restitution hearing.  To support her argument, Ms. [Name Redacted] relies 

on evidence outside our record, such as phone records, a power of attorney document,

and city council meeting minutes.  A personal restraint petition is the proper means to 

introduce evidence outside the record on appeal.  State v. McFarland, 127 Wn.2d 322, 

338, 899 P.2d 1251 (1995). Without more, Ms. [Name Redacted]'s challenge to the State's 

witnesses necessarily fails.    

       Affirmed.     

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                           __________________________
                                                           Brown, J.

WE CONCUR:

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No. 29908-2-III 

_____________________________                              __________________________
Korsmo, C.J.                                               Kulik, J.

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