IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
KARLIE MARTIN, ARVIN ROY MARTIN,
and JENNY LEE SHEA, and each of
them as principal or accomplice,
No. 65714-3-I (consolidated
with 66275-9-I & 66339-9-I)
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
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
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
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 HansenFaires. 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.
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
. . . 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’
Appellants challenge the amount of restitution awarded, contending there
was insufficient evidence to support the award. If a defendant disputes the
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
hearsay, was insufficient to support the restitution order. Pollard, 66 Wn. App. at
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
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.
We remand to the trial court to subtract $600 from the restitution orders.
Otherwise, we affirm.
Affirmed in part, reversed in part.