Opinion
No. 59249-1-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-05851-6, Brian D. Gain, J., entered November 21, 2006.
Affirmed by unpublished per curiam opinion.
Restitution is appropriate when actual expenses incurred for personal injury have been established by a preponderance of the evidence, including evidence that the criminal conduct caused the resulting harm. The trial court here did not abuse its discretion in concluding that the State met this burden. We affirm.
State v. Kinneman, 155 Wn.2d 272, 287, 119 P.3d 350 (2005).
On June 17, 2004, Renton police officers discovered the unconscious body of R.H. lying in the street. After investigation, police arrested Joseph Williams and another young man, and the State charged them with the first degree assault of R.H. The State later additionally charged Williams with intimidating a witness, unlawful possession of a firearm, and conspiracy to commit first degree assault.
Williams' trial ended in a mistrial based on the jury hearing inadmissible and prejudicial information. Subsequently, Williams pled guilty to one count of conspiracy to commit first degree assault. In the plea agreement, Williams agreed to pay restitution to the victim.
During sentencing proceedings, R.H. made a statement regarding his injuries and the effect of the assault on his life. At the separate restitution hearing, the trial court relied upon R.H.'s statement and documentation of medical treatment paid for by the Department of Social and Health Services (DSHS) and awarded restitution of $150,854.92.
This court granted Williams' motion to supplement the record on appeal to include the documents considered at the trial court restitution hearing. These documents also appear in the appendix to Williams' brief on appeal. However, we decline to consider the additional document in the appendix and the documents in the appendix to his reply brief that have not been made part of the record on appeal. See RAP 10.3(a)(8).
RESTITUTION
Williams contends the restitution award violates his right to due process. Specifically, he argues that the trial court engaged in speculation and conjecture regarding which of the charges listed on the DSHS documentation related to the assault. We hold that the trial court properly exercised its discretion in awarding restitution.
According to statute, restitution "shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property . . . unless extraordinary circumstances exist." When a court orders restitution based on a criminal conviction, such restitution "shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury."
Where material facts are disputed, the sentencing court must hold an evidentiary hearing, and the State must prove restitution by a preponderance of the evidence. Damages need not be established with "specific accuracy" or "mathematical certainty." Rather, evidence is sufficient if it "affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture."
State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998).
State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005) (quoting State v. Fleming, 75 Wn. App. 270, 274, 877 P.2d 243 (1994)), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
State v. Bush, 34 Wn. App. 121, 123, 659 P.2d 1127 (1983).
Hughes, 154 Wn.2d at 154 (quoting Fleming, 75 Wn. App. at 274-75).
For a restitution award to be proper, the State must also prove a "but for" causal connection between the defendant's criminal conduct and the victim's harm. A causal connection is not established based solely on evidence of the victim's expenditures or receipts.
State v. Enstone, 137 Wn.2d 675, 682-83, 974 P.2d 828 (1999).
State v. Dedonado, 99 Wn. App. 251, 257, 991 P.2d 1216 (2000).
We review a restitution award only for an abuse of that discretion. R.H. was assaulted on June 17. According to the DSHS report, R.H. received an extended series of medical treatments beginning on June 17 and continuing through May of the following year. The trial court both observed and heard R.H.'s testimony at sentencing and thus was in a position to make credibility determinations about the nature and extent of his injuries for purposes of deciding the extent of restitution. These credibility determinations are not reviewable on appeal. The trial court also noted that R.H.'s injuries resulting from the assault are ongoing and accordingly ruled that additional restitution may be requested for future medical expenses.
Enstone, 137 Wn.2d at 679.
See State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Williams challenges several specific medical expenses, but these challenges are unpersuasive. He challenges an approximately $15,000 charge labeled as "SSPS." This entry refers to a second spreadsheet of monthly charges related to R.H.'s long term care, which R.H. testified he required as a result of the assault. Williams also argues that the State did not establish a causal connection between the assault and charges related to hip contusions, dental bills, prescription medications, pneumonia, cervical disc degeneration, and other conditions. But it was reasonable for the trial court to conclude that these conditions were causally related to R.H.'s near death from the assault and that the charges were part of the ongoing medical care R.H. continues to need.
Williams cites State v. Bunner and State v. Hahn to support the reverse conclusion. Neither supports his argument.
86 Wn. App. 158, 936 P.2d 419 (1997).
100 Wn. App. 391, 996 P.2d 1125 (2000).
In Bunner, this court held that a DSHS medical recovery report itemizing amounts the State paid for the victim's medical treatments was insufficient to establish the causal link between the defendant's criminal acts and the victim's injury. The court reasoned that the only purported link was the inference that DSHS would not have paid the bill if the services were not related to the crime, and this was insufficient. Likewise, in Hahn, a summary report itemizing amounts DSHS paid to various health care providers was insufficient to establish a causal link to the crime. As in Bunner, there was "no statement linking the charged amounts to any particular symptoms or treatments." Rather, the report only listed the service provider, dates, and dollar amounts.
ld. at 160.
Id. at 399-400.
Id.
In State v. Dennis, this court found a causal link between an assault and resulting medical treatment when one of the victims submitted proof of an unpaid balance on the hospital bill. In that document, the claims specialist specifically noted that the victim's hospital treatment occurred on a particular date, which was the same date the victim was assaulted. And additional documentary evidence established that the hospital issuing the bill was the same hospital at which the victim was treated as a result of the crime.
101 Wn. App. 223, 6 P.3d 1173 (2000).
Id. at 228. A causal connection was not established for the other victim in the case, who only submitted proof of an unpaid hospital balance for services performed on an unknown date.
Id.
Here, the State provided more information than that in Bunner and Hahn. Specifically, the DSHS expense report itemizes R.H.'s treatment by facility, date, description, diagnosis, drug prescribed, cost, and other related information. As in Dennis, this provided a reasonable basis for the trial court to conclude that each of the medical services on the list beginning on the date of the assault was causally related to the crime.
Moreover, unlike in Bunner and Hahn, the trial court specifically relied upon the victim's oral statement regarding the extent of his injuries. R.H. stated that his injuries from the assault were so severe that he had to relearn how to perform basic body functions, and he cannot drive or ride a bike. He has brain damage, short term memory loss, and a seizure disorder. He has to live in a full time care facility, and his injuries interfere with his ability to have romantic relationships. The certification of probable cause and prosecutor's summary, incorporated into the plea agreement, also confirm that the extent of R.H.'s injuries was extremely severe, leaving him close to death. All of these facts support the trial court's conclusion that R.H. required extensive medical treatment and each treatment listed in the DSHS report was causally related to the assault.
RCW 9.94A.530(2) (failing to object to information in the presentence reports constitutes acknowledgement of those facts).
Williams also cites State v. Dedonado to support his position. In that case, this court held that a causal connection was not established by a list of expenditures from the theft victim, when the victim had replaced at least one expensive item with a different model, and many items on the vehicle repair receipt appeared unrelated to the theft. The court held that it was impossible to determine from the evidence whether these expenditures were causally connected to the crime.
99 Wn. App. 251, 257, 991 P.2d 1216 (2000).
Id. at 253-55.
Id. at 257.
Again, the trial court in this case considered information in addition to a list of expenditures appearing unrelated to the crime. It heard the victim's statement regarding the extreme degree of his injuries. Specifically, R.H. was in a coma for two months after the assault and essentially has "to do [his] life all over again." Given the extent of his injuries, the trial court had tenable grounds to conclude that the detailed list of medical treatments all appeared related to the head trauma, face and neck injuries, and other related injuries R.H. suffered, unlike the list in Dedonado.
See Report of Proceedings (Aug. 4, 2006) at 7.
For example, Williams argues that there does not appear to be a causal link between the crime and R.H.'s dental work. But it is clear from this record that R.H. would require some dental work after being beaten so severely that his face was unrecognizable to his family. The trial court was within a reasonable range of choices in ordering restitution in reliance on the report and other evidence provided in this case.
Williams argues that intervening causes could have led to some of R.H.'s medical problems that appear on the report. For example, he asserts that exposure to bacteria in a prolonged hospital stay caused clostridium difficile, one of the conditions for which he received treatment on two different occasions several weeks after the assault. The simple answer to this assertion is that R.H. would not have been in the hospital and exposed to infection but for the assault.
See State v. Tobin, 161 Wn.2d 517, 527, 166 P.3d 1167 (2007) (The test is one of but for causation, and the court does not examine the factual question of foreseeability.); Enstone, 137 Wn.2d at 680-82 (noting also that the broad power to order restitution derives from statute, which requires only a causal connection, not the more specific test of foreseeability).
We affirm the order of restitution.