State Of Washington, Respondent V Larry G. Kelly, Appellant (Majority)
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i, C FILED UIPJ 0 APPEALS C,IVI "i 10sj Ii S 2013 DEC 10 AI g: 55 IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II No. 44307 -4 -II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION LARRY G. `BUDDY" KELLY, HUNT, J Larry G-. "Buddy" Kelly appeals a restitution order entered after he pled guilty to second degree theft and second degree possession of stolen property. He argues that sufficient evidence does not support the ordered restitution amount. Agreeing, we remand for correction of the amount of restitution. FACTS In his unauthorized knowingly his plea of guilty, over [ control possessed recovered property." the] property plea agreement stated, " Kelly of property Greg that admitted of Greg Dawson." he " wrongfully Dawson, Clerk' To: Victim Dawson as s with Papers ( CP) obtained intent to at 21. and exerted deprive" and As to restitution, approved for loss from burglary, damage to CP at 12. At the restitution hearing, the State submitted the following list of Dawson' s claimed expenses: No. 44307- 4- 11 Damaged locks and doors: 200 Destroyed utility trailer door: 500 Damaged CanAm ATV[ 1] no amount listed] no amount listed] Damaged Yamaha Boat motor 15 hp Not Recovered: Honda 61/2 HP 2" water pump 850[ ] 2) Off Brand 6% HP 2" [ water pump] 2 400[ ] 3) Husky HD Generator 850[ ] 4) Husquvarna Back Pack Leaf Blower 750[ ] 5) Diamond Plate Truck Bed Tool Box HD 1, 200[ ] 6) Contents of Tool Box, estimated value 5, 000 to $ 7, 000 7) App[ roximately]. 200' ft of 2" flat lay hose [ and] fittings $200[ ] 8) 3[ 9) Large [ quantity] 10) Gas can [ and] pressure hose for Boat motor 250[ ] 11) HD Marine Battery 120[ ] 1) 2 each] premium [ ] ATV Helmets 450[ ] of misc[ ellaneous] tools, est[ imate] $ 1, 500[ ] Ex. 1. Dawson testified dollars , 2 values. direct examination repairing the utility trailer door on around $ on 1, 500"'; that ( 1) he " guesstimated about five hundred and " guess[ ed]" the cost of repairing the ATV at and ( 2) the values he listed for the items he did not recover were fair market On cross -examination, Dawson acknowledged that he had not obtained estimates for the items he did that the $ 5, not recover. He stated that his valuation of the tool box was his " best guess" and 000 to $ 7, 000 he listed for the contents Verbatim Report of Proceedings at 17, 18. 1 All terrain vehicle. 2 Verbatim Report of Proceedings ( VRP) at 7. 3VRPat8. 2 of the tool box was also a " guestimate." No. 44307- 4- 11 The State Dawson' s listed 1, 500 Dawson to valuations. asked the trial amounts on estimated to The trial court Exhibit 1, repair court set to the set with $ the ATV. Kelly' s restitution amount at $ 14, 270, the total of 5, 000 for the contents of the tool box, plus the Kelly' s counsel objected to Dawson' s guesses as restitution amount at $ 14, 270. Kelly appeals this 4 restitution amount. ANALYSIS Kelly argues that we should vacate the restitution order because the State did not present substantial credible evidence of the amount of damage to the damaged items or the value of the unrecovered items. P. 3d 506 ( 2008)). See Br. of Appellant at 5 ( citing State v. Griffith, 164 Wn.2d 960, 965, 195 He contends that ( 1) because Dawson gave only rough estimates of the amounts of damage or loss, without corroboration, his testimony was insufficient evidence to the support Dawson amount of offered the only restitution order, guesses about Br. of Appellant at 7 ( citing State Kisors); v. and ( 2) for repairing the trailer door, the $ 1, 500 for the $ 500 repairing the ATV, the $ 1, 200 for replacing the tool box, and the $ 5, 000 for replacing the contents of the tool box. The State responds that the property' s owner can testify to the value of that property, State v. Hammond, 6 Wn. App. 459, 461, 493 P. 2d 1249 ( 1972), and that we review a restitution award for an abuse of discretion. Br. of Resp' t at 4 ( citing State v. Mark, 36 Wn. App. 428, 433, 675 P. 2d 1250 ( 1984)). The State concedes, however, that ( 1) Dawson' s estimates for repairing 4 A commissioner of this court initially considered Kelly' s appeal as a motion on the merits under RAP 18. 14 and then transferred it to a panel of judges. 5 App. 610, 620, 844 P. 2d 1038 ( 1993) ( rough estimate of costs of training a new police dog insufficient to support amount of restitution ordered). State v. Kisor, 68 Wn. 3 No. 44307 -4 -II the trailer door and the ATV were insufficient to support that portion of the restitution order; and 2) therefore, these have been included. amounts should not 6 We conclude that the trial court did not abuse its discretion in accepting Dawson' s testimony about the values of his unrecovered property and the amount of damage to the garage locks and doors. We accept the State' s concession that the evidence does not support the restitution award of 500 for repairing the trailer door or $ 1, 500 for repairing the ATV. We find no evidence in the record before us that the trial court intended to order restitution in an amount above the amounts of established damage and loss.7 It also appears that the State and the trial court made a $ 500 scrivener' s error in totaling the Dawson claimed in amounts not the $ 14, 270 damages and 1, 500). in the trial amounts to which 8 court' s losses, totaling $ 12, 770); restitution order. Dawson testified totaled $ 13, 770, See Exhibit 1 ( itemizing victim' s and VRP at 8 ( estimated cost of repairing damaged ATV, Accordingly, we remand to the trial court to correct the total amount of restitution that Kelly 6 stated The restitution: must The State Dawson, pay also notes 11, 770, namely $ which represents the total allows the trial court to order restitution in an that RCW 9. 94A.753( 3) amount up to double the amount of the victim' s established loss. 7 Thus, to the extent that the State implies that the restitution amounts are allowable so long as they are less than the doubled amount RCW 9. 94A.753( 3) allows, we do not adopt this justification for the unsupported damages. 8 Kelly he asserts argues that Dawson' that the s testimony record contains " no also added $ basis 250 for repairing a boat that he recovered; whatsoever" for this claim. Br. of Appellant at 8. Dawson testified on direct about lost property ( a gas can and a Kelly pressure hose) that had been inside the boat, which property was listed on the State' s itemized exhibit of Dawson' s losses at $ 250. Dawson did not testify about any repair cost related to the misreads boat itself; listed as " nor the record: did he seek restitution Damaged" but no amount for such a claim. See Exhibit 1 ( " Yamaha Boat motor" listed). But see also VRP at 15 -16 ( Dawson acknowledged on cross -examination that he did not have an estimate on the cost to repair the boat). 4 No. 44307 -4 -II I- established values of the lost items and the damage to the garage locks and doors. 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 in accordance with RCW 2. 06. 040, it is so ordered. Hunt, J. We concur: 5
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