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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                            )      No. 65714-3-I (consolidated 
                      Respondent,           )      with 66275-9-I & 66339-9-I)
                                            )         
              v.                            )       DIVISION ONE
                                            )
KARLIE MARTIN, ARVIN ROY MARTIN,                                                 )         
and JENNY LEE SHEA, and each of             )
them as principal or accomplice,            )       UNPUBLISHED OPINION
                                            )
                      Appellants.           )       FILED:  January 17, 2012
                                            )
________________________________)

       Becker, J.  --  While a court may order restitution for a criminal offense 

that has resulted in a loss of property, a court does not have authority to impose 

restitution to compensate a witness for time spent attending court.  To the extent 

the restitution order in this case so compensates a witness, we reverse it.  To 

the extent it compensates the victim for loss of property, we affirm.  

       Jenny Shea, Karlie Martin, and Arvin Martin stole numerous household 

items, including valuable antiques, from an unoccupied residence.  The police 

were unable to recover all of the stolen items.

       Shea pleaded guilty to residential burglary.  K. Martin pleaded guilty to 

first degree possession of stolen property.  A. Martin pleaded guilty to third  

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degree possession of stolen property.  All the defendants agreed to pay 

restitution but contested the amount.  Both Martins agreed in their plea 

agreements to pay restitution on uncharged counts or dismissed cause numbers.  

After Shea pleaded guilty, but before either of the Martins entered their guilty 

pleas, the court held a restitution hearing.  The Martins participated in this 

hearing.  

       One of the homeowners, Carolyn Hansen-Faires, brought with her to the 

hearing a handwritten list of 59 items with claimed values ranging from $50 to 

$2,000.  The list included antique furniture, antique dishware, paintings, a 

designer purse, and various household items.    

       Hansen-Faires testified about how she determined the listed values.  She 

had an antique dealer license and had been an antique dealer.  Her 

methodology for valuing the items varied from recalling how much she or her 

husband paid for an item to looking online, looking in shops, talking to other 

people, and setting prices based on her own knowledge or estimate of what she 

thought was a fair price.  Hansen-Faires' husband, the other homeowner,

testified to the price he paid for some of the items. 

       The owner of an antique store, Jeffrey Bassett, testified for the 

defendants.  Bassett bought and sold antiques full time.  Like Hansen-Faires, he 

regularly assessed items in his business.  His general opinion was that the items 

on the list could possibly sell for the prices listed, but only in the best possible 

scenario.  He thought the valuations were unlikely to be accurate.  It was 

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impossible for him to assign specific values because he had not seen the items.  

He specifically questioned the values placed upon some of the items by Hansen-

Faires.  For example, based on his research, he thought a Limoges porcelain set 

she valued at $8,000 was probably not worth that much.  He also questioned her 

estimates of $20,000 for a designer purse, $15,000 for antique wooden dolls,

and $2,000 for four to five antique children's books.  On cross-examination, 

Bassett agreed that anyone could do much of the valuation research online.  

       The prosecutor requested a total of $86,056.34.  She said this number did 

not include $20,000 for missing clothing claimed by Hansen-Faires because it 

was not among the missing items reported to the police.  The prosecutor said 

she also omitted one item as duplicative and did not count any of the items on 

the list that were marked recovered by Hansen-Faires.  

       The court ordered Shea to pay $86,600 in restitution.  Six hundred dollars

of this amount was to compensate Hansen-Faires for her time in attending court. 

After the Martins pleaded guilty, they were both held jointly and severally liable 

for the restitution order entered against Shea.  

       All three appellants challenge the restitution award, contending that it 

rests on unsupported and unreliable evidence and that the trial court applied the 

wrong burden of proof. 

       Except in extraordinary circumstances, a judge must order restitution 

whenever the offender is convicted of an offense which results in loss of 

property.  RCW 9.94A.753(5).  Restitution is both punitive and compensatory.  

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State v. Kinneman, 155 Wn.2d 272, 279, 119 P.3d 350 (2005).  The trial court 

has discretion to determine the amount of restitution.  State v. Pollard, 66 Wn. 

App. 779, 785, 834 P.2d 51, review denied, 120 Wn.2d 1015 (1992).  We will 

find an abuse of that discretion only where its exercise is manifestly 

unreasonable, or exercised on untenable grounds or for untenable reasons.  

Pollard, 66 Wn. App. at 785.  

       The burden to establish the amount of restitution rests with the State and 

that burden is by a preponderance of the evidence.  State v. Dennis, 101 Wn. 

App. 223, 226, 6 P.3d 1173 (2000).  

                                BURDEN OF PROOF

       The appellants argue the trial court improperly shifted the burden of proof 

to them and did not hold the State to its burden.  

       In closing argument, they suggested that the homeowners needed to do 

more to prove the value of the missing items.  The court responded with the 

following oral comments:  

       But I guess the thing the court has to deal with is who should be 
       given the benefit, if you will, the difficulty in determining value.  And 
       it's a hard nut to crack for the court to be looking at these situations 
       and say okay, am I going to give a criminal defendant who's been 
       convicted of stealing somebody's property and say I'm going to 
       give you the benefit of all the due process rights here and we want 
       to put the burden on the person who's suffered a loss because of 
       your criminal act and force them to go out and get appraisals with 
       the same degree of certainty as in a civil case of a burden of proof 
       as to what a loss is?  Certainly that's required in cases of negligent 
       loss of property.  But here we have intentional acts being 
       committed and then it's hard for the court in equity, if you will, to 
       say we are going to put all the burden on the person that suffered 
       the loss.  

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              . . . .
       . . . There is a burden and, of course the courts recognize and the 
       law recognizes that it's not the same burden as in the case of a 
       typical civil lawsuit. And it further has to be noted by the court that 
       the court has the authority in the appropriate case to order twice 
       the amount of the loss by way of punishment to a defendant for the 
       actions that they've committed.
              . . . . 
              You know, a defendant can go out and get appraisals just 
       like the State can.  I don't think the taxpayer should be undergoing
       the expense of going out and getting an appraisal at taxpayer
       expense to protect the due process rights of a felon.  Just doesn't 
       sit with my sense of justice.  If a felon believes that they're being 
       ripped off in return by a dishonest home owner, and as I say I'm not 
       interested in, I'm not here to protect somebody who comes in as a 
       victim and is dishonest with the court in anyway, [sic] but a 
       defendant ought to have the burden if they think they're being 
       accused of, or they're being subjected to paying more than what an 
       item is worth, let the defendant go out and hire the appraiser.  Take 
       some of the goods that were returned, go down to Seattle or 
       someplace and get a range of value from a certified appraiser that 
       has no interest in the case.  And then come in and say this is what 
       it's worth.  Then I've got something more than, I think, just the 
       victim versus the defendant's expert.

Report of Proceedings at 131-32, 135-36.

       Before ruling, the court acknowledged having read Shea's brief, which 

correctly stated the burden of proof.  Given this fact and the context of the 

court's comments, we conclude the trial court did not shift the burden to the 

defendants.  The comments were simply a response to the defendants'

arguments.  

                              RESTITUTION AMOUNT

       Appellants challenge the amount of restitution awarded, contending there 

was insufficient evidence to support the award.  If a defendant disputes the 

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restitution amount, the State must prove the damages.  State v. Griffith, 164 

Wn.2d 960, 965, 195 P.3d 506 (2008). The amount of restitution must be based 

on "easily ascertainable" damages.  RCW 9.94A.753(3).  Easily ascertainable 

damages are tangible damages supported by sufficient evidence.  State v. 

Tobin, 132 Wn. App. 161, 173, 130 P.3d 426 (2006), aff'd, 161 Wn.2d 517, 166 

P.3d 1167 (2007).  While certainty of damages need not be proven with specific 

accuracy, the evidence must be sufficient to provide a reasonable basis for 

estimating loss.  Pollard, 66 Wn. App. at 785.  Evidence that subjects the trier of 

fact to speculation or conjecture is insufficient.  Pollard, 66 Wn. App. at 785.  

The rules of evidence do not apply at restitution hearings.  Pollard, 66 Wn. App. 

at 784.  Nevertheless, the evidence admitted must meet due process 

requirements, such as providing the defendant an opportunity to refute the 

evidence presented and requiring that the evidence be reliable.  Pollard, 66 Wn. 

App. at 784-85.  

       To support their argument that the evidence required the trial judge to 

speculate and that due process was violated, the defendants rely primarily on 

State v. Kisor, 68 Wn. App. 610, 844 P.2d 1038, review denied, 121 Wn.2d 1023 

(1993), and Pollard, 66 Wn. App. at 779.

       In Pollard, we reversed a restitution award based on a defendant's 

unlawful issuance of checks.  The only evidence in the record supporting the 

restitution sum was a police report that recorded what bank personnel at the 

respective institutions stated the banks lost.  This report, as it was double 

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hearsay, was insufficient to support the restitution order.  Pollard, 66 Wn. App. at 

786.

       In Kisor, we also reversed a restitution award.  There, the defendant had 

shot and killed a police dog.  The court imposed $17,380 in restitution.  The 

award was based on a conclusory hearsay affidavit providing a rough estimate 

of the costs associated with purchasing a new dog and training it.  The affidavit 

referred to an advertisement, but the advertisement did not support the 

advanced figures.  We concluded the affidavit was not substantial credible 

evidence supporting the restitution order and that due process was violated by 

the trial court's reliance on it.  Kisor, 68 Wn. App. at 620.

       Here, there is not the problem of hearsay like there was in Kisor or 

Pollard.  The homeowners testified and were subject to cross-examination.  The 

appellants had the opportunity to present rebutting testimony.  That the 

homeowners based some of their testimony on information gained through other 

people did not violate due process.  

       It is true the defense witness was handicapped by the fact that he had 

never seen the items, but this was because the items were stolen -- a problem 

created by the appellants, not by the homeowners.  

       Appellants complain that the State could have had evaluations done on 

recovered items that were part of a missing set, such as the $8,000 porcelain set 

which had at least two recovered tea cups, to provide some corroboration.  

Appellants also point out the homeowners did not provide photos, receipts, or 

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appraisal records for the missing items.  

       Washington courts follow the prevailing rule that the owner of a chattel 

may testify as to its market value without being qualified as an expert in this 

regard.  State v. Hammond, 6 Wn. App. 459, 493 P.2d 1249 (1972).  While other

evidence would have been helpful, the testimony of the homeowners was 

sufficient by itself to sustain the restitution award.  Hansen-Faires was familiar 

with antiques and with the items.  Photos, receipts, or appraisal records are not 

necessary to establish a restitution amount, even for antiques.  See People v. 

Ford, 77 A.D.3d 1176, 1177-78, 910 N.Y.S.2d 235 (2010), leave to appeal

denied, 954 N.E.2d 96 (2011) (expert testimony not required to establish the 

value of victim's antiques; testimony from the victim, an antique collector, that 

she determined the value of missing items by comparing them to similar items 

and consulting antique dealers held sufficient).  

       We conclude there was sufficient evidence supporting the restitution 

award of $86,000 for lost items.    

       The $600 tacked onto the restitution award to compensate Hansen-Faires 

for her time in testifying, however, was not a proper part of the award. A court's 

authority to impose restitution is statutory.  Griffth, 164 Wn.2d at 965.  The State

concedes that there is no statutory authority allowing a court to award time loss 

related to testimony.  Finding no authority contrary to that provided by the 

parties, we accept the State's concession and order that $600 be subtracted 

from the award.  

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       We remand to the trial court to subtract $600 from the restitution orders.  

Otherwise, we affirm. 

       Affirmed in part, reversed in part.  

WE CONCUR:

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