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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 66559-6-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
NICHOLAS RAYMOND PROUT,                     )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: May 29, 2012

       Lau, J.  --  Nicholas Prout appeals a restitution order following his guilty plea for 

second degree burglary and second degree malicious mischief.  He argues the trial 

court abused its discretion when it ordered restitution in an amount unsupported by 

substantial evidence.  Finding no error, we affirm.

                                            FACTS

       In January 2010, police contacted Nicholas Prout near the scene of a 

convenience store burglary.  After some questioning, Prout admitted to committing two 

dozen commercial burglaries over the previous year.  He drove around with police 

investigators and pointed out the locations of his crimes.  Those locations included, but 

were not limited to, the Super 99 Cents Plus store on Aurora Avenue, Gourmet Latté on 

Holman Road, Caffe Keffa on 15th Avenue, Q-Mart on 15th Avenue, and Fortune Café  

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on Aurora Avenue.  Prout also gave specific statements regarding his actions at each 

location.  At Super 99 Cents Plus he admitted he broke the door and stole cigarettes.  

He stated he broke a window at Gourmet Latté and broke the door at Q-Mart but could 

not remember what else happened at either location.  At Caffe Keffa he admitted he 

broke a window and reached the counter inside but ran away when the alarm went off.  

At Fortune Café, Prout admitted he used a rock to gain entry through a door and stated 

that the cash register was empty.  

       The State charged Prout with 14 counts of second degree burglary and 1 count 

of second degree malicious mischief.  Prout agreed to plead guilty to four of the second 

degree burglary counts and the single count of malicious mischief.  As part of the plea, 

Prout agreed to pay restitution for all of the charged and uncharged incidents.  At 

sentencing, the court granted the parties' joint recommendation for a prison-based 

special drug offender sentencing alternative of 29.75 months.  The court ordered Prout 

to pay restitution as determined at a future hearing.  

       At the restitution hearing, the State requested $37,440.16 in restitution for 14

victims.  Prout conceded the validity of several loss claims.  But he challenged other 

claims for lack of supporting documentation, arguing the State lacked receipts, 

invoices, or other proof of loss.  The court explained that among the documents it would 

consider were restitution sheets listing the losses incurred by each victim and signed 

under penalty of perjury by that victim.  The court found these declarations sufficient 

evidence to proceed with the hearing.    

       The State advised the court that the probable cause certification and 

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declarations contained sufficient information to find a significant causal connection 

between Prout's actions and the restitution amount.  The court denied restitution for 

four stores that lacked declarations, documentation, or other evidence supporting their 

loss claims.  For the remaining claims, the court found the victims' loss declarations 

sufficient and ruled that the lack of receipts or invoices went to the weight of the 

evidence.  The defense declined to subpoena the victims to testify about their losses, 

and the court found that the remaining claims 

       are sufficient, they're easily ascertainable, they're certainly causally connected 
       to Mr. Prout's actions insofar as the declarant states that these are a correct 
       summary of losses incurred as the crime investigated, and a number of these 
       losses also appear to be connected to the certification, although not all, and 
       they're easily ascertainable.

Report of Proceedings (Dec. 20, 2010) at 12.  The court ordered $31,160.13 for 

restitution.  Prout appeals the restitution amounts awarded to Super 99 Cents Plus, 

Gourmet Latté, Caffe Keffa, Q-Mart, and Fortune Café.

                                          ANALYSIS

       Prout contends the trial court's restitution order regarding Super 99 Cents Plus, 

Gourmet Latté, Caffe Keffa, Q-Mart, and Fortune Café was not supported by substantial 

evidence because while the victims provided declarations detailing their losses, they 

failed to provide receipts, invoices, or other proof.  The State counters that the 

restitution award was causally connected to Prout's crimes and supported by 

substantial evidence.

       The trial court's power to impose restitution is derived solely from statute. State 

v. Enstone, 89 Wn. App. 882, 884, 951 P.2d 309 (1998), aff'd, 137 Wn.2d 675, 974 

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P.2d 828 (1999).  Where the trial court has authority to order restitution, it has 

discretion to determine the amount of restitution. State v. Davison, 116 Wn.2d 917, 

919, 809 P.2d 1374 (1991). Its decision will only be overturned for an abuse of 

discretion. Davison, 116 Wn.2d at 919. A court abuses its discretion when the 

restitution decision is "'manifestly unreasonable, or exercised on untenable grounds, or 

for untenable reasons.'" Enstone, 137 Wn.2d at 679-80 (internal quotation marks 

omitted) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981)).

       RCW 9.94A.753(5) provides, "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 . . . ."  Costs that a victim incurs as the result of a defendant's crimes 

have been determined a loss of property under the restitution statute.  State v. Tobin, 

161 Wn.2d 517, 526-27, 166 P.3d 1167 (2007).

       There must be a causal connection between the damages claimed and the crime 
       charged.  The Court of Appeals has required only a determination that "but for"
       the crime, the damages would not have occurred, and we have made it clear that 
       foreseeability is not required.

Tobin, 161 Wn.2d at 527.

       "If a defendant disputes the restitution amount, the State must prove the 

damages by a preponderance of the evidence."  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 

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certainty of damages need not be proved with specific accuracy, the evidence must be 

sufficient to provide a reasonable basis for estimating loss.  State v. Pollard, 66 Wn.

App. 779, 785, 834 P.3d 51 (1992).  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.

       Prout is correct that Super 99 Cents Plus, Gourmet Latté, Caffe Keffa, Q-Mart, 

and Fortune Café submitted loss declarations without attaching supporting 

documentation, such as receipts or invoices.  But all of the above victims' forms 

contained itemized lists of losses and were signed under the caption "I declare under 

penalty of perjury under the laws of the State of Washington, that the foregoing is a 

true and correct summary of the losses I incurred as a result of the crime investigated 

under the above cause number."  (Emphasis added.)  Prout cites no authority requiring 

that evidence in restitution hearings must be supported by corroborating evidence.  The 

above victims' declarations were signed under penalty of perjury, and Prout has 

presented no evidence to contradict the loss estimations or to show that the 

declarations were unreliable.  See Tobin, 132 Wn. App. at 180 (despite lack of 

supporting documentation, victim's declaration estimating damages -- executed under 

penalty of perjury -- was sufficient evidence for restitution order where defendant 

presented no contradictory evidence). And Prout had the opportunity to challenge the 

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amounts either with his own figures or by subpoenaing the victims to testify.1 He did neither.

       Relying on State v. Dedonado, 99 Wn. App. 251, 991 P.2d 1216 (2000), State v. 

Kisor, 68 Wn. App. 610, 844 P.2d 1038 (1993), and Pollard, 66 Wn. App. 779, Prout

argues, "A causal connection is not established simply because a victim provides a list 

of expenditures for replacing property stolen or damaged by the defendant."  

Appellant's Br. at 4.  In Dedonado, the defendant damaged a van's ignition switch while 

stealing the van.  Dedonado, 99 Wn. App. at 253.  At the restitution hearing, the State 

submitted a mechanic's preliminary estimate for damage to the van that included not 

only the damaged ignition switch, but also items such as "fill all fluids" and "align front 

suspension."  Dedonado, 99 Wn. App. at 255 (capitalization omitted).  We held that the 

State failed to meet its burden of proving restitution amounts because it was impossible 

to determine from the State's documentation whether all of the van repairs were related 

to the damaged ignition switch.  Dedonado, 99 Wn. App. at 257.  Thus, the State's 

documentation "did not establish a causal connection between Dedonado's actions and 

the damages."  Dedonado, 99 Wn. App. at 257.  

       The Kisor court also reversed a restitution award.  There, the defendant 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 and training a new dog. Kisor, 68 Wn. App. at 620.  The 

affidavit referred to an advertisement, but the advertisement did not support the 

       1 At the restitution hearing, both the State and the court offered defense counsel 
the opportunity for the victims to testify about their losses.  
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advanced figures.  The court 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.

       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 contained double hearsay and was insufficient to support 

the restitution order. Pollard, 66 Wn. App. at 786.

       Dedonado, Kisor, and Pollard are distinguishable.  As discussed above, here the 

victims each submitted declarations signed under penalty of perjury that itemized the 

losses incurred "as a result of the crime investigated under the above cause number."  

Thus, the declarations themselves indicated that the amounts sought were related to 

Prout's crimes.  These were not "rough estimates."  Kisor, 68 Wn. App. at 620.  Prout 

raised no due process objection at the restitution hearing.  Both the State and the trial 

court offered Prout a chance to subpoena the victims to testify, but he declined to do 

so.  The victims' declarations here, in conjunction with the probable cause certification,

provide substantial credible evidence establishing the actual costs incurred due to 

Prout's crimes.

                                        CONCLUSION

       Because the State presented sufficient evidence to support the restitution order, 

the trial court did not abuse its discretion in its 

restitution award.  We affirm.

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                             WE CONCUR:

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