Opinion
No. 34118-2-II.
January 9, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-00113-5, Robert L. Harris, J., entered November 18, 2005.
Counsel for Appellant(s) John A. Hays, Attorney at Law, Longview, WA.
Counsel for Respondent(s) Michael C. Kinnie, Attorney at Law, Vancouver, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Hunt, J.
Douglas Silva appeals a restitution order the superior court entered after he pleaded guilty to fourth degree assault of Daniel Nustad. Silva argues that the court improperly restricted his cross-examination of the State's restitution witness and that the State failed to prove his crime caused the restitution expenses. We affirm.
Facts
Silva pleaded guilty to fourth degree assault without admitting conduct constituting the crime, pursuant to State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976). The prosecutor provided the factual basis for Silva's guilty plea, explaining that State witnesses, if called, would testify Silva was fighting with someone, and when Nustad attempted to intervene, Silva kneed him, dislocating and fracturing his knee.
At a restitution hearing, Silva stipulated to the admission of four State exhibits. Exhibit 1 shows that the crime victims compensation program (the program) paid Nustad $15,036.08 for lost wages and medical expenses. Exhibit 1 explains that the program paid for Nustad's "injuries that resulted from [Silva's] assault" on January 8, 2005. Exhibit 1 at 4.
Exhibit 2 contains medical records detailing Nustad's January 8, 2005 treatment at the Emergency Department of Southwest Washington Medical Center (Medical Center) for a knee dislocation and fracture caused when someone kicked Nustad's knee that same day. Exhibit 3 is the Medical Center's $1,000 invoice for providing those same services. Exhibit 4 is the ambulance crew's report, explaining that on January 8, 2005, they discovered Nustad on the ground with a dislocated knee and Nustad reported someone had kicked that knee.
The State presented one witness, Kenneth Ecker, who testified that Silva "kneed" "a younger kid" "in the side of the kneecap and took him out," causing the "younger kid" to fall and making his knee appear dislocated or broken. Report of Proceedings (RP) at 20. Silva cross-examined Ecker by asking if he had told police he had not seen Silva make contact. The superior court stopped Silva, ruling that he could not "litigate guilt. The only issue I see here is what were the injuries, whether they were caused by this incident or some other incident attributable, and . . . what's the amount of monetary loss." RP at 21-22. Silva asked no more questions and made no offer of proof.
Analysis of Cross-Examination Restriction
Silva contends the superior court violated his constitutional right to confront witnesses when it restricted his cross-examination of Ecker. Assuming without deciding that Silva had the same constitutional rights at a restitution hearing as at a trial, we reject this contention because Silva failed to make an offer of proof.
Generally, a party cannot argue on appeal that the trial court wrongly excluded evidence unless the party made an offer of proof before the trial court. ER 103(a)(2).
A party may avoid this requirement only if "the substance of the evidence . . . was apparent from the context within which questions were asked." ER 103(a)(2).
An offer of proof serves three purposes: it informs the court of the legal theory under which the offered evidence is admissible; it informs the judge of the specific nature of the offered evidence so that the court can assess its admissibility; and it creates a record adequate for review.
State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991); accord State v. Griswold, 98 Wn. App. 817, 829, 991 P.2d 657 (2000).
The limited record does not reveal whether Silva planned to elicit testimony that (1) his assault did not cause Nustad's injuries, or (2) he committed no assault at all. The first is relevant. See RCW 9.92.060(2); RCW 9.95.210(2); RCW 9A.20.030(1); e.g., State v. Hahn, 100 Wn. App. 391, 399, 996 P.2d 1125 (2000). The second is not.
Silva failed to make an offer of proof specifying the nature of the testimony that he hoped to elicit by cross-examining Ecker. He therefore failed to provide an adequate record for review. Without knowing the specific nature of the excluded evidence, we cannot address Silva's claim of error.
Analysis of Causation
Silva next contends the superior court ordered him to pay restitution without adequate proof that his assault caused Nustad's losses. A court's power to impose restitution is statutory, not inherent. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). Under RCW 9.92.060(2) , RCW 9.95.210(2) , and RCW 9A.20.030(1), the superior court has authority to order restitution for a gross misdemeanor when "the crime in question" caused a loss to another. To prove a defendant's crime caused the victim's loss, the State must establish that the victim would not have sustained the loss but for the crime. See Hahn, 100 Wn. App. at 399. When the State merely presents a list of expenditures made on behalf of the victim without evidence explaining why they were paid and connecting the expenses to damages caused by the crime, it fails to prove causation. See Hahn, 100 Wn. App. at 399-400; State v. Bunner, 86 Wn. App. 158, 159-60, 936 P.2d 419 (1997). Relying on Hahn and Bunner, Silva argues the State's evidence was insufficient to prove causation. We disagree.
RCW 9.92.060 authorizes the sentencing court to suspend sentences and subsection (2), in relevant part, gives the sentencing court power to order the defendant "to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question." This statute is applicable to non-felonies and to felonies committed prior to July 1, 1984. RCW 9.92.900.
RCW 9.95.210 relates to the granting of probation for non-SRA sentences and subsection (2), in relevant part, provides the court imposing probation power to order the defendant "to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question." This statute is applicable to non-felonies and to felonies committed prior to July 1, 1984. RCW 9.95.900(1).
RCW 9A.20.030(1) authorizes imposition of restitution in lieu of imposing certain fines and, in relevant part, provides the sentencing court authority to order a defendant who "gained money or property or caused a victim to lose money or property through the commission of a crime, upon conviction thereof . . . to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain or victim's loss from the crime."
Fourth degree assault is a gross misdemeanor. RCW 9A.36.041(2).
Although neither party discusses it, RCW 9.95.210(3) required the superior court to make the award to the crime victims' program. That statute commands, in relevant part, that "[t]he superior court shall order restitution in all cases where the victim is entitled to benefits under the crime victims' compensation act, chapter 7.68 RCW." (Emphasis added.) See State v. Hurt, 107 Wn. App. 816, 830-31, 27 P.3d 1276 (2001) (applying similar provision in SRA restitution statute), overruled on other grounds by State v. McLean, 150 Wn.2d 583, 80 P.3d 587 (2003). As Nustad received program benefits because of Silva's assault, the superior court was required to order Silva to repay the program. Silva did not and does not challenge the program's determination that Nustad was entitled to benefits.
In Hahn, we specifically noted a similar mandatory reimbursement statute did not apply because the victims had not applied for the program benefits. Hahn, 100 Wn. App. at 398 n. 4. Only after doing so did we evaluate the strength of the State's causation evidence. Hahn, 100 Wn. App. at 399-400.
The superior court properly awarded $1,000 to the Medical Center because the evidence established that Nustad incurred medical expenses at the Medical Center for injuries caused by Silva's assault. Unlike the evidence in Hahn and Bunner, the State did not merely present a list of fees. The detailed medical records explained that the Medical Center's fees were for treating Nustad on January 8, 2005, for a dislocated and fractured knee. And the factual basis for Silva's guilty plea was that he had dislocated Nustad's knee by striking it on January 8, 2005.
The superior court did not abuse its discretion when it awarded restitution to the program and the Medical Center. See Davison, 116 Wn.2d at 919 (abuse of discretion standard).
Untimely Notice of Appeal
Silva also challenges the superior court's assessment of a $100 DNA collection fee. Although the State concedes error, we reject it. The superior court imposed the fee as part of its June 21, 2005 judgment and sentence. Silva did not file his notice of appeal until November 29, 2005. His appeal of the November 18, 2005, restitution order is timely. His appeal of the judgment is not. See RAP 5.1(a); RAP 5.2(a); see also RAP 2.4(c).
We affirm the restitution order.
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.
We concur: Houghton, C.J. Hunt, J.