### FILED OCTOBER27, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. NATHANEARL ELDRED, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 33418-0-111

UNPUBLISHED OPINION

FEARING, C.J. -NathanEldred challenges the imposition ofrestitution afterhe pied guilty torendering criminal assistance andpossession ofstolenproperty. He claims thathis crimes did notresult in the victim's loss ofthe stolen goods. We conclude that the trial court did not abuse its discretion when finding that at least one ofEldred's crimes ledto the victim's loss. We affirm the restitution award. FACTS Mike Abbott owned a farm house and shed in Lincoln County, north of Davenport. During much ofJanuary and early February 2013, aperiod ofheavy snow fall, Abbott absented the rural home. He returned home onFebruary 

### 14 to discoverhis home and shedburglarized. One ormore intruderspushed inthe back doorto Mike Abbott's home and cutthe lock from the shed's_front sliding doors. The burglars tookNo. 33418-0-111 State v. Eldred
from the shed two John Deerepush lawn mowers, a Red Maxweed eater, four Proxes tires with black wheels, four Kumho tires with Hoyo wheels, a Snap Ontool box, and snowmobile covers.

, Beginning on February 17, 2013, Lincoln County SheriffDeputy Andy Manke investigated the burglary. Deputy Manke interviewed witnesses who claimed Stephen Murphy participated in the theft. Deputy Manke also heard thatburglars used Nathan Eldred's pickup truck to transport stolen goods from Mike Abbott's farm. Spokane Tribal officers visited Eldred's Wellpinithome and observed a John Deere push mower in the open garage. Lincoln County SheriffDeputy Andy Manke interviewed Stephen Murphy and Nathan Eldred after each waived his respective Miranda rights. The confessions ofeach implicate both the confessor and the other suspect. According to Stephen Murphy, Nick, aka Dough boy, and Kayla, aka K.C., burglarized Mike Abbott's home and shed at a time when Nick, Kayla and he resided at the Fort Spokane home ofRosemarie Murphy, Stephen's mother. We do notknow the last names ofNick and Kayla. Nick and Kayla returned from the burglary to the Murphy home without the burglarizedproperty. The two informed StevenMurphy that they needed atruck to move the purloined items. Murphy called Nathan Eldred, who drove his truck to Rosemarie Murphy's house. Eldred, K.C., and Nickthenjourneyed, in

2No. 33418-0-111 State v. Eldred
Eldred's pickup truck, to Abbott's farmhouse and loaded tires and lawn mowers into the truck. StevenMurphy claimedhe remained at his mother's house until the trio returned. Murphy then telephoned a Spokane drug dealer and arranged to exchange the tires for partial payment ofNick's debtto the dealer. Murphy removed one lawn mower from Nathan Eldred'spickup truck and left the mower at his mother's residence. Murphy then followed in his own vehicle as Eldred, Kayla, and Nick drove to Spokane and delivered the tires to the drug dealer. Lincoln County SheriffDeputy Andy Manke also interviewed Nathan Eldred. According to Eldred, he never went to Mike Abbott's farmhouse. Instead, Steven Murphy invited Eldred to visit at Rosemarie Murphy's home. On arrival at the Murphy abode, Eldred learned Steven wanted to use Eldred'struck to transport stolenproperty. Steven Murphy drove Eldred'spickup truck to Abbott's farmhouse withNick as a passenger and Eldred following in Murphy's Jeep. Eldred parked on the side ofthe road while Murphy and Nick loaded the pickup truck atAbbott's farmhouse. Murphy, in the pickup truck, returned to his mother's house, and Eldred followed in the Jeep. Eldred then allowed Murphy to drive his truck, with Nick and Kayla as passengers, to take the stolen goods to Spokane. Eldred followed in Murphy's Jeep, but lost Murphy in Spokane traffic. Eldred waited at a ubiquitous Walmart, ofunknown location. Murphy later arrived at the Walmart, the two exchanged vehicles, and Nathan Eldred drove his pickup truck home to Wellpinit. 3No. 33418-0-111 State v. Eldred
Nathan Eldred admittedto SheriffDeputy Andy Mankethathe heldpossession of
a green John Deere lawn mower. He claimed that Stephen Murphy abandoned the
mower in his pickup truck. The police recovered one ofthe stolen mowers at Nathan Eldred's residence and the other mower at the home ofRosemarie Murphy, StevenMurphy's mother. One of the stolen mowers was returned to Mike Abbott, buthe had alreadypurchased a replacement mower. There is no evidence thatthe police recovered any ofthe trafficked tires or wheels. PROCEDURE The State ofWashington initially chargedNathan Eldredwithresidential burglary and burglary in the second degree. OnNovember 18, 2014, the State filed an amended information as part ofa global resolution ofthis prosecution and a secondprosecution against Eldred. Underthe amended information, the State charged Eldredwithrendering criminal assistance in the second degree, possession ofstolenproperty in the second degree, driving while underthe influence, and possession ofa controlled substance. Eldred pled guilty to all four counts. The lattertwo charges entail a separate incident. In NathanEldred's statement on plea ofguilty, he declared: "Instead ofmaking a statement, I agree that the court may review thepolice reports and/or a statement of probable cause suppliedbythe prosecutionto establish a factual basis for the plea."

4No. 33418-0-111 State v. Eldred
Clerk's Papers (CP) at 20. He also averred: Ifthis crime resulted in injury to any person or damage to or loss of property, thejudgewill order me to make restitution, unless extraordinary circumstances exist which make restitution inappropriate. The amount of restitution may be up to double my gain or double the victim's loss. CP at 15. Eldred and the State entered no agreement on restitution at the pleahearing. Therefore, the trial court scheduled a later restitution hearing. During the restitution hearing, the State ofWashingtonrequested an award of $3,544.25. The State submitted the following receipts to supportthe restitutionrequest: a Les Schwab receipt for the purchase ofone set oftires and wheels for $1,681.71; a 2010 receipt for a lawn mower and repairs costing $463.54; a 2012 receipt for a lawn mower costing $424.94; and a handwritten receipt for a second set oftires costing $1,000.00. Nathan Eldred contested imposition ofany restitution otherthan the value ofthe lawn
mower found in his possession. He argued against imposition ofany otherrestitution on the basis that his crimes did not cause Mike Abbott's loss ofotherproperty. The trial court imposed $3,106.65 in restitution: $424.94 for one ofthe lawn mowers, $1,681.71 for one set oftires and wheels, and $1,000.00 for the other set oftires and wheels. The trial court worried that the lawnmowerreceipts referred to the same lawnmower, so it did not include the amount from the 2010 receipt in the restitution award. In its order granting restitution, the trial court concluded: But for the Defendantproviding transportation and assistance after the Burglary occurred and but for the Defendant'spossession ofstolen 

### 5No. 33418-0-111 State v. Eldred property, the victim would not have suffered damages. Therefore, the imposition ofrestitution for all the items and damages requestedby the State is appropriate and supported by law. CP at 55. LAWAND ANALYSIS Nathan Eldred appeals the order ofrestitution. Eldred argues restitution is not permitted when the loss or damage to the crime victim occurs before the act constituting the crime. He contends that the trial court erred in grantingrestitutionbecause his convictions for rendering criminal assistance in the second degree andpossession of stolen property in the second degree lack a causal connectionwithMike Abbott's loss of his personal property. Accordingto Eldred, the trial court imposedrestitutionbased on a general scheme ofcriminal activity butthatwas notpart ofthe crime. The State responds that an adequate causal link exists between Eldred's crimes and Abbott'sproperty loss. We agree withthe State. The authority to impose restitution is not an inherentpower ofthe court, but is derived from statutes. State v. Gray, 174 Wn.2d 920, 924, 280 P.3d 1110 (2012); State v. Davison, 116 Wn.2d 917,919, 809 P.2d 1374 (1991). A number ofstatutes address restitution undervarying circumstances. The controlling statute here is RCW 9.94A.753(5). The statute reads, in relevant part: (5) Restitution shall be ordered wheneverthe offender is convicted ofan offense which results in injury to any person or damage to or loss of property or as provided in subsection (6) ofthis section unless 6No. 33418-0-111 State v. Eldred extraordinary circumstances exist which makerestitution inappropriate in the court'sjudgment andthe court sets forth such circumstances inthe record. In addition, restitution shall be orderedto pay for an injury, loss, or damage ifthe offenderpleads guilty to a lesser offense or fewer offenses and agrees withthe prosecutor's recommendation thatthe offenderbe required to pay restitution to a victim ofan offense or offenses which are not prosecutedpursuantto a plea agreement. RCW 9.94A.753. One goal ofrestitution is to require the defendantto face the consequences ofhis conduct. State v. Enstone, 137 Wn.2d 675, 680, 974 P.2d 828 (1999); State v. Dauenhauer, 103 Wn. App. 373, 378, 12 P.3d 661 (2000). The statute is designedto promote respect for the lawbyproviding punishmentthat isjust. State v. Davison, 116 Wn.2d at 922. Restitution is both punitive and compensatory in nature. State v. Kinneman, 155 Wn.2d 272, 279-80, 119 P.3d 350 (2005). Nathan Eldred disputed the State's claim for restitution. When a defendant disputes facts relevantto the determination ofrestitution, the State mustprove the amount by a preponderance ofthe evidence at an evidentiary hearing. State v. Dedonado, 99 Wn. App. 251,256,991 P.2d 1216 (2000). A trial court's order ofrestitution is reviewed for abuse ofdiscretion. State v. Tobin, 161 Wn.2d 517,523, 166 P.3d 1167 (2007). Affording discretion often entails a reviewing court accepting the reasonable inferences drawn from the facts by the trial court.

7No. 33418-0-III State v. Eldred
Nathan Eldred challenges the causal relationship between his crimes and the restitution award. Case law expands on the language ofRCW 9.94A.753(5). A trial court exceeds its statutory authority in ordering restitution when the loss suffered is not causally related to the offense committed by the defendant. State v. Woods, 90 Wn. App. 904,907,953 P.2d 834 (1998); State v. Vinyard, 50 Wn. App. 888,891, 751 P.2d 339 (1988). Imposition ofrestitution must be based on a causal connectionbetween the crime charged and the victim's damages. State v. Tobin, 161 Wn.2d at 523; State v. Osborne, 140 Wn. App. 38, 42, 163 P.3d 799 (2007); State v. Woods, 90 Wn. App. at 907; State v. Bunner, 86 Wn. App. 158, 160, 936 P.2d 419 (1997). Restitution for loss beyondthe scope ofthe crime charged is properly awardable only whenthe defendant enters into an express agreement, as part ofthe pleabargain process, to make such restitution. State v. Woods, 90 Wn. App. at 909. Otherwise, a trial court's discretion in awarding restitution is limited to the "precise offense" charged. State v. Woods, 90 Wn. App. at 907; State v. Harrington, 56 Wn. App. 176, 179, 782 P.2d 1101 (1989); State v. Ashley, 40 Wn. App. 877, 878-79, 700 P.2d 1207 (1985). Although these rules speak interms ofthe crime charged, the cases limitrestitution to damages resulting from the crime ofconviction. State v. Mead, 67 Wn. App. 486, 490-91, 836 P.2d 257 (1992). Causation is proved by a "but for" inquiry. State v. Tobin, 161 Wn.2d at 524. Restitution is allowed only for losses that are causally connected to a crime and may not be imposed for a general scheme or acts connected with the crime charged. State v. 8No. 33418-0-111 State v. Eldred Kinneman, 155 Wn.2d at 286 (2005). Restitution may notbe based on acts connected with the crime charged, when those acts are notpart ofthe charge. State v. Harrington, 56 Wn. App. at 179; State v. Hartwell, 38 Wn. App. 135, 141, 684 P.2d 778 (1984), overruledon othergrounds byState v. Krall, 125 Wn.2d 146, 881 P.2d 1040 (1994). Going further, under one ofour decisions, restitution can be based only on damage caused during the dates for which the State chargedthe defendant with a crime. State v. Woods, 90 Wn. App. at 908-09 (1998). We agree in theory with Nathan Eldred's argument that loss or damage occurring before the act constitutingthe crime cannot be causally connected. State v. Woods, 90 Wn. App. at 909. We also agree in theory with Eldred's contentionthatrestitution may not be imposed based on the defendant's "general scheme" or acts "connected with" the crime charged, when those acts are not part ofthe charge. State v. Woods, 90 Wn. App. at 907-08 (1998). We think those principles, however, inaptunder the circumstances of this appeal. Pertinentto this appeal, Nathan Eldredpled guilty to two crimes. We need only decide ifone ofthe crimes resulted in Mike Abbott's loss. We conclude that at least one ofEldred's crimes directly led to the removing ofMike Abbott's goods from Abbott's land. Nathan Eldred argues that his rendering ofcriminal assistance did not cause Mike Abbott's losses and this crime does not qualify him for restitution. The criminal 9No. 33418-0-111 State v. Eldred
assistance statute reads: A person is guilty ofrendering criminal assistance in the second degree ifhe or she renders criminal assistance to aperson who has committed or is being sought for a class B or class C felony or an equivalentjuvenile offense or to someone being sought for violation of parole, probation, or community supervision. RCW 9A.76.080. Rendering criminal assistance is an offense that can only occur after the commission ofthe initial crime because otherwise it constitutes accomplice liability. State v. Anderson, 63 Wn. App. 257, 261, 818 P.2d 40 (1991); see also State v. Robinson, 73 Wn. App. 851, 858, 872 P.2d 43 (1994). We do not address whether a conviction for rendering criminal assistance can lead to ajudgmentfor restitution for loss resulting from the original crime ofothers since we may rest our decision on other grounds. Under the facts ofthis case, Nathan Eldred's unlawful possession ofstolen property was one cause ofMike Abbott's losses. Thepossession statute reads: A person is guilty ofpossessing stolenproperty in the second degree if: (a) He or she possesses stolenproperty, otherthan a firearm as defined in RCW 9.41.010 or a motor vehicle, which exceeds seven hundred fifty dollars in value but does not exceed five thousand dollars in value
.... RCW 9A.56.160(1). We agree with Eldredthat culpability for possession ofstolen property does not necessarily include culpability for the stealing ofthe property. The actual thiefis guilty ofa different crime. State v. Griffith, 164 Wn.2d 960,967, 195 P.3d 506 (2008). Once again, however, we considerthese rules relevant to the issue on appeal.
10No. 33418-0-111 State v. Eldred
Nathan Eldred relies primarily on State v. Griffith, 164 Wn.2d 960 (2008), wherein the Supreme Court vacated an order ofrestitution against a defendant convicted of possessing stolenjewelry. The trial court assessed restitution for the value ofalljewelry stolen from the victim. The Supreme Courtreversed on the basis that the evidence did not show that Joan Griffith possessed all ofthejewelrytaken from the victim. Perhaps inconsistent with other decisions, the high court implied thatrestitution couldbe imposed
on the possessor ofstolenproperty regardless ofwhetherthe possessorparticipated in the theft. More on pointto this appeal is State v. Rogers, 30 Wn. App. 653, 638 P.2d 89 (1981). The trialjudge entered a finding that Richard Rogers disposed ofparts ofa stolen truck and was to be paid a commission for doing so. The court held that, when the defendant's provenpossession is part ofa scheme to dispose ofproperty and thereby leads to permanent deprivation ofan owner'sproperty, a defendant is chargeable with such deprivation, and restitution for the value ofthe item is proper. The case on appeal holds unique facts. Nathan Eldred was likely not involved in the initial burglary at 

### Mike Abbott's home. Nevertheless, the court did not award restitution for damage to the house and shed resulting from the burglary. More importantly, the burglars could notremove the purloined articles ofpropertythe day of

11No. 33418-0-III State v. Eldred
the initial entry on the rural land. Instead, they solicited Eldred's assistance to remove the stolen items from Mike Abbott's land. Abbott did not lose possession ofhis lawn mowers, tires, weed eater, and tool box until Eldredparticipated in the crime and Eldred removed the items in his pickup truck. The trial court could accept the statement ofSteven Murphy as to how the crime occurred. UnderMurphy's version ofthe story, Nathan Eldred wasphysicallypresent on the farmland when burglars removed the stolen goods and placed the items in Eldred's pickup truck. Eldred drove the truck. The trial court could infer from the evidence that all goods were taken from the property atthe same time andplaced in the pickup of Nathan Eldred. Nathan Eldred contends thathe assisted the thieves only by helpingthem forgo apprehension. Eldred also contends no evidence supports thathe knew others would use his pickup truck to remove stolen goods. As already outlined, substantial evidence and inferences from the evidence rebut these contentions. Under Stephen Murphy's story, Eldred knew his truck was needed to remove stolen goods from Mike Abbott's farmland. Nathan Eldred's motion to deny appeal costs is granted. We deny the State costs
on appeal. CONCLUSION We affirm the trial court's imposition of$3,106.65 in restitution againstNathan Eldred. 12No. 33418-0-111 State v. Eldred
A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:



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