Opinion
No. 37254-1-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00928-2, Theodore F. Spearman, J., entered December 10, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
In May 2007, the State charged Michael Thomas McKnight with second degree assault. The state offered evidence that McKnight fractured Paul Grover Hipps's jaw as part of its proof of second degree assault. The jury found McKnight not guilty of second degree assault but guilty of the lesser included fourth degree assault, which does not require substantial bodily harm. The State requested restitution for Hipps to cover his medical expenses. The court found that McKnight's assault on Hipps caused the injury and the medical expenses were reasonably related to the assault for which McKnight was convicted. McKnight now appeals, arguing that the trial court abused its discretion when it ordered restitution for medical expenses related to Hipps's fractured jaw when the jury found McKnight not guilty of second degree assault. Because McKnight's arguments fail, we affirm the restitution order.
FACTS
On October 18, 2004, McKnight and Hipps had a verbal altercation in McKnight's home. McKnight punched Hipps in the face. Hipps left and called the police. Eleven days later, on October 29, 2004, Hipps sought medical treatment for his injured jaw. An x-ray revealed that his jaw was fractured in two places. As a result of his injury, Hipps received extensive medical treatment.
On May 30, 2007, the State charged McKnight by amended information with second degree assault under RCW 9A.36.021(1)(a). At trial, defense counsel proposed a jury instruction regarding the lesser included fourth degree assault under RCW 9A.36.041, which the trial court granted. On June 4, 2007, a jury found McKnight guilty of fourth degree assault and not guilty of second degree assault. On June 29, 2007, the trial court ordered judgment and sentence on the fourth degree assault conviction but reserved the restitution order.
Under RCW 9A.36.021(a) a person is guilty of second degree assault if "he or she under circumstances not amounting to assault in the first degree . . . intentionally assaults another and thereby recklessly inflicts substantial bodily harm[.]"
Under RCW 9A.36.041(1), "[a] person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another."
On December 10, 2007, the trial court held a restitution hearing. At the hearing, the State requested that McKnight pay restitution in the amount of $3,276.19 for Hipps's medical expenses. Defense argued that the fractured jaw was not causally related to McKnight's fourth degree assault conviction and by finding McKnight not guilty of second degree assault, the jury had not found beyond a reasonable doubt that McKnight's assault caused Hipps's fractured jaw. However, the trial court noted that unlike juries, which must find a defendant guilty beyond a reasonable doubt, a court ordering restitution need only find that the defendant's crime caused the injury by a preponderance of the evidence.
Appellant has not submitted a complete trial record. Absent that record, we will not find that the judge's recollection of trial described in the restitution hearing is inaccurate.
In this case, the trial judge relied on his memory of the trial to determine that McKnight's assault caused Hipps's fractured jaw. The court placed particular emphasis on Hipps's testimony that McKnight's assault caused his fractured jaw. Additionally, the trial court noted that Hipps's poor financial circumstances could explain his delay in seeking medical care. The trial court ordered restitution in the amount of $3,276.19. McKnight now appeals.
ANALYSIS
McKnight argues that the trial court abused its discretion by ordering restitution for injuries greater than those needed to prove fourth degree assault. Specifically, McKnight claims that because the jury found him not guilty of second degree assault, a charge for which the jaw fracture was an element, the jury did not find that there was a causal connection between Hipps's fractured jaw and the assault. The State responds that although the jury found McKnight not guilty of second degree assault, the verdict did not necessarily depend on the lack of causality. Furthermore, the State argues such a verdict would not preclude a court from awarding restitution because in awarding restitution the trial court determines causation only by a preponderance of the evidence, not beyond a reasonable doubt.
A court's power to impose restitution is statutory, not inherent. State v. Davidson, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). RCW 9.94A.753 authorizes restitution whenever the offender is convicted of an offense which caused injury to any person. Courts interpret these statutes broadly to implement the "strong public policy to provide restitution whenever possible." State v. Shannahan, 69 Wn. App. 512, 518, 849 P.2d 1239 (1993). A court may impose restitution whenever the "crime in question" caused a loss or injury to another person. State v. Thomas, 138 Wn. App. 78, 83, 155 P.3d 998 (2007). A trial court's order of restitution will not be overturned on appeal absent an abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007). A court abuses its discretion only when its decision is "manifestly unreasonable or based on untenable grounds." State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999) (citing ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
In the alternative, compensation may be required by the Crime Victim's Compensation Act, which authorizes compensation to the victim if she is injured as a result of a "criminal act". RCW 7.68.070, State v. Thomas, 138 Wn. App. 78, 155 P.3d 998 (2007) (Quinn-Brintnall, J., concurring). Under the act "the court shall order restitution in all cases where the victim is entitled to benefits under [the act]." RCW 9.94A.753(7).
When requesting a restitution order, the State must prove by a preponderance of the evidence that but for the defendant's crime the loss would not have occurred. State v. Kinneman, 122 Wn. App. 850, 860, 95 P.3d 1277 (2004). An appellate court will overturn factual findings of the lower court only if there is insufficient evidence to support a rational person's conclusion that the challenged fact was true. Thomas, 138 Wn. App. at 83 (citing State v. Halstien, 122 Wn.2d 109, 128-29, 857 P.2d 270 (1993)).
We find that McKnight's argument fails because it ignores the distinction between the jury's burden of proof of beyond a reasonable doubt and the trial court's lesser burden of proof of a preponderance of the evidence.
The result of the differing standards of proof is that a trial court is not necessarily limited by the jury's findings on causation when determining whether or not to order restitution. As this court remarked in Thomas, "The jury's failure to be convinced beyond a reasonable doubt [as to causation] is neither a legal nor a factual bar to the trial court finding [causation], at a restitution hearing." 138 Wn. App. at 83. In Thomas, the trial court ordered Thomas to pay medical expenses when she caused an accident that seriously injured a passenger in her car. As a result of the accident, Thomas was charged with vehicular assault. Thomas, 138 Wn. App. at 80-81. A jury found Thomas not guilty of vehicular assault but guilty of driving under the influence, a lesser included offense. Thomas, 138 Wn. App. at 80. At the restitution hearing, the trial court found that Thomas's driving under the influence was one cause of the passenger's injuries. Thomas, 138 Wn. App. at 81. Thomas appealed, arguing that because the jury had not found beyond a reasonable doubt that her actions were a proximate cause of the passenger's injuries, the trial court could not find causation for restitution. Thomas, 138 Wn. App. at 81.
This court disagreed, noting that there was ample evidence in the record to support a conclusion that Thomas's driving under the influence caused the passenger's injuries. Thomas, 138 Wn. App. at 83. The court relied on a blood test with a blood alcohol level of .20, the passenger's testimony, expert testimony and Thomas's own admissions to support its conclusion. Thomas, 138 Wn. App. at 83.
Similarly in this case, the judge's remarks at the restitution hearing demonstrate that there was sufficient evidence in the record to conclude by a preponderance of the evidence that McKnight's assault caused Hipps's fractured jaw. The judge relied on Hipps's testimony that McKnight's punch caused the injury, and McKnight's admission that he punched Hipps in the jaw. The trial court remarked that the only suggestion that McKnight's assault did not cause the injury was the 11 day delay in seeking treatment, a delay explained by Hipps semi-indigent status. Because there was sufficient evidence on the record for a rational trier of fact to conclude by a preponderance of the evidence that McKnight's assault caused Hipps fractured jaw, the trial court did not abuse its discretion when it ordered restitution. Accordingly, we decline McKnight's request to vacate the restitution order against him.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, J., concur.