IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. JOHN B. VELEZMORO, Appellant. No. 73542-0-1 DIVISION ONE

PUBLISHED OPINION FILED: October 31, 2016 Spearman, J. — Restitution is mandatory "wheneverthe offender is convicted ofan offense which results in injury to any person. . . ." RCW 

### 9.94A.753(5). John B.Velezmoro was one of an unknown number ofpeople who 

### possessed pornographic images of"Vicky,"1 a victim of childsexual abuse. Velezmoro pleaded guilty to possession of child pornography. At a restitution 

### hearing, the trial court determined that Velezmoro's offense was a cause of the 

### injury Vicky suffered from the ongoing distribution ofimages of her abuse. The court ordered Velezmoro to pay restitution toward Vicky's actual losses. 

### Velezmoro challenges the order, arguing that restitution may only be ordered when the State establishes that but for the defendant's conduct, the victim's losses would not have occurred. 

### Generally, the but-fortest is the way to prove that one eventwas the factual cause ofanother. But where the application ofthat test leads to 

### anomalous results, alternative ways of proving causation may apply. Inthe

1Vicky is a pseudonym.No. 73542-0-1/2 circumstances here, where an unknown number of people possessed 

### pornographic images of Vicky's abuse, each possessor had a share incausing her harm. The trial court did not err in determining thatVelezmoro's offense was
a cause ofVicky's loss. We affirm. FACTS 

### Velezmoro pleaded guilty to possession of childpornography inthe 

### second degree after police discovered a large cache ofchild pornography on his computer. Many of the files in Velezmoro's possession featured child victims 

### whose identity had been established by law enforcement. Seven of the files were part of a series ofpornographic videos involving Vicky. 

### A relative began sexually abusing Vicky when she was five years old. The relative made and distributed videos of Vicky's abuse in response to requests 

### from consumers ofchild pornography. Vicky'sabuse stopped when she was 

### thirteen years old and she began to recoverfrom the trauma of her experience. ButwhenVicky was seventeen, she learned that images of her abuse had been 

### widely disseminated via internet.2 Knowledge that images of her abuse are in circulation caused renewed trauma, from which Vickycontinues to suffer. 

### Vicky soughtrestitution from Velezmoro. Vicky did not allege that she was 

### specifically aware thatVelezmoro possessed herimages, butargued that he was partofthemarketforchild pornography and shared in causing the damages she suffered from the continued distribution ofher images. Vickysubmitted
2The pornographic images, obscenecommentary on theimages, andspeculation about Vicky's currentlife remain widespread on the internet.No. 73542-0-1/3 documentation of her ongoing trauma and the actual economic losses incurred. Atthe hearing, Velezmoro argued thatVicky could not show causation and that she had already recovered her actual economic losses through restitution from other criminal defendants. The trial courtfound that Vicky had actual unrecovered losses and ordered Velezmoro to pay $5000 in restitution. The court acknowledged that it

was impossible to determine Velezmoro's share ofVicky's losses with "mathematical precision," but held that $5000 was a reasonable apportionment. Verbatim Report ofProceedings (VRP) at 14. Velezmoro appeals. DISCUSSION Velezmoro asserts thatthe trial court erred in ordering restitution by using


### an improper legal analysis. He contends that a trial court may only order restitution when it determines that but for the defendant's offense the victim's loss would not have occurred. We review a trial court's order of restitution for abuse of discretion. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007) 

### (citing State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999)). Atrial court abuses its discretion if its order rests on an incorrect legal analysis. Id. 

### The authority to order restitution is based on statute. Id. (citing State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992)). Underthe Washington restitution statute, a court shall order restitution "wheneverthe offender is convicted ofan offense which results in injury to any person." RCW 

### 9.94A.753(5). Restitution is mandatory "unless extraordinary circumstances exist which make restitution inappropriate. . . ." RCW 9.94A.753(5).No. 73542-0-1/4 

### Restitution serves "both punitive and compensatory" purposes. State v. Kinneman, 155 Wn.2d 272, 279-80, 119 P.3d 350 (2005) (citing State v. Moen, 129 Wn.2d 535, 539 n. 1, 919 P.2d 69 (1996)). One aim of restitution is "to require the defendant to face the consequences of his or her criminal conduct." Tobin. 161 Wn.2d at 524 (quoting State v. Davison, 116 Wn.2d 917, 922, 809 P.2d 1374 (1991)). Accordingly, restitution is only allowed for losses that are causally connected to the crime charged, jd. (citing Kinneman, 155 Wn.2d at 286). The statute expresses this causal connection by requiring restitution when

a criminal offense "results in injury to any person." RCW 9.94A.753(5). In evaluating whether an injury is the result ofan offender's crime, Washington 

### courts have applied a but-for analysis. See, e.g., State v. Hiett, 154 Wn.2d 560, 566, 115 P.3d 274 (2005) (affirming restitution for lost property when, "[bjutfor 

### the taking ofthe vehicle, the personal property would not have gone missing"); State v. Harris, 181 Wn. App. 969, 976, 327 P.3d 1276 (2014) review denied, 181 Wn.2d 1031, 340 P.3d 229 (2015)) (affirming restitution where butforthe 

### defendant's conduct in driving,the victim would not have been struck and killed); State v. Wilson. 100 Wn. App. 44, 50, 995 P.2d 1260 (2000) (affirming restitution 

### for investigative costs where "but for the embezzlement, the victim would not have incurred" the costs). 

### Velezmoro argues thatthe trial court erred inawarding restitution because 

### Vicky did notestablish that his conductwas a but-forcause of her damages. 

### App. Br. at 7-9. The State agrees that restitution may only be awarded forlossesNo. 73542-0-1/5 that are causally connected to the crime, but argues that the but-fortest is not the proper measure ofactual causation in all circumstances. The State argues that 

### the trial court properly followed Paroline v. United States, U.S. , 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014), in using an alternative causation analysis. In Paroline, the defendant pleaded guilty to possessing child pornography, 

### including two images of a childvictim identifiedas "'Amy.'" ]d at 1716. Amy had been sexually abused by her uncle inorderto produce childpornography, ]d at 1717. After Amy's uncle was prosecuted and sentenced to prison, Amybegan to 

### recover. Id, Butas a teenager, Amy learned that images of her abuse were being trafficked on the internet, jd. Knowledge thatthese images were being distributed 

### produced renewed trauma, and "meant the wrongsinflicted upon her werein effect repeated ...." Id. 

### Amy soughtrestitution from Parolinefor thetotal amount of damages she suffered as a result ofthe distribution ofher images, about $3 million in lost 

### income and $500,000 in future counseling and treatment costs. Jd. at 1718. She 

### stipulated that she did notknowwhoParoline was and that her losses did not stemfrom specific knowledge that hepossessed her images.]d But she argued thatall possessors of her images werejointly and severallyliable for her 

### damages. Id Thedistrictcourtdeclined to orderrestitution becauseAmy could notprove but-forcausation. ]d TheCourtofAppeals reversed andordered Paroline to pay restitution in the full amount of Amy'sdamages. Id 

### The Supreme Court accepted review to determine the proper causation 

### analysis and amount ofrestitution, jd The Paroline Courtnoted that theNo. 73542-0-1/6 restitution statute at issue requires a showing ofboth actual and legal causation. Id at 1722. Actual causation, or causation in fact, is traditionally proven by showing that but for the defendant's criminal actthe victim's injury would not have occurred. Id The Court recognized that in this case, where Paroline was 

### onlyone ofthousands ofanonymous possessors, Amy could not establish but-for causation. ]d at 1723. Butthe Court noted that "courts have departed from the but-for standard where circumstances warrant, especially where the combined 

### conduct of multiplewrongdoers produces a bad outcome." Id at 1723 (quoting Burraqev.U.S., _ U.S. _, 134 S. Ct. 881, 187 L. Ed. 2d 715 (2014). In the circumstances of Paroline, the Court reasoned that but-for 

### causation would be contrary to both the punitive and the compensatory purposes of restitution. 134 S. Ct. at 1726-27. Such a standard would fail to recompense 

### the victims that child pornography statutes are enacted to protect. Id. at 1726. And it would also "leave offenders with the mistaken impression that child

### pornography possession (at least where the images are in wide circulation) is a victimless crime." |d at 1727. The Paroline Court accordingly applied a form of 

### aggregatecausation andheld that, where achild victim suffers from theongoing trade in her images, each possessorof those images shares in causing the harm.]d at 1726. The Court rejectedjoint and several liability but held that restitution should be based on "the significance ofthe individualdefendant's 

### conductin lightofthebroadercausal process thatproduced thevictim's losses."
Id. at 1728.No. 73542-0-1/7 Paroline is strikingly similarto this case. Inboth cases, the defendant pleaded guilty to possession of child pornography, including images of an identified child victim. The child victim in each case suffers on-going injury and economic loss from the continued distribution of her images. In both cases, the defendant is only one of an unknown number ofpersons who have obtained 

### pornographic images ofthe victim's sexual abuse. As in Paroline, applying butfor causation inthe present case would preclude restitution, contrary to both the compensatory and punitive aims ofthe statute. However, Velezmoro contends that this court has explicitly required but-for causation. This court has stated that causation is shown by establishing that but for the defendant's conduct the victim's loss would not have occurred. See, e.g., 

### Harris, 181 Wn. App. at 974 ("TheState must establish by a preponderance of the evidence that the victim's loss would not have occurred 'butfor' the crime."); 

### State v. Thomas, 138 Wn. App. 78, 82, 155 P.3d 998 (2007) ("Toprove a defendant's crime caused the victim's loss, the State must establish the loss 

### would not have occurred but forthe crime.") (citing State v. Hahn, 100 Wn. App. 

### 391, 399, 996 P.2d 1125 (2000)). But the essential requirement is a causal connection between the crime and the victim's loss. RCW 9.94A.753(5) 

### (restitution is mandatory forall offenses that "result[] in injury"). See ajso Kinneman, 155 Wn. 2d at 286 ("Restitution is allowed only for losses that are causally connected to a crime..."). 

### Like Washington courts, federal courts traditionally apply a but-foranalysis to determine actual causation. See Paroline, 134 S. Ct. at 1722. But in Paroline,No. 73542-0-1/8 the Supreme Court drew on alternatives to but-for causation recognized in tort law. ]d at 1723. For example, one torts treatise explains that "'when the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause ofthe event, and application ofthe but-for rule to them individually would absolve all ofthem, the conduct of each is a

cause infact ofthe event.'" Jd (quoting W. Keeton Dobbs, R. Keeton, D. Owens. Prosser and Keeton on Law ofTorts, § 41, at 268 (5th ed. 1984)). The Paroline Court concluded that the principles underlying such alternative measures of causation applied in the circumstances ofthat case, jd at 1726. 

### Washington courts have also recognized alternatives to but-for causation in tort law. In a case involving pesticides sprayed by crop-dusting airplanes, the Supreme Court upheld a jury instruction reflecting aggregate causation. Hue v. Farmbov Spray Co. Inc., 127 Wn.2d 67, 90-93, 896 P.2d 682 (1995). The Hue court held thatthe plaintiffs properly argued that the defendant's pesticide was 

### "'part of a cloud that then was the proximate cause ofdamage.'" id at 91 

### (quoting Supplemental Report ofProceedings at 336-37). The Hue court rejected the argumentthatthe plaintiffswere required to show that an individual defendant's product was a but-for cause ofinjury, jd Similarly, inMavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 28-33, 935 P.2d 684 (1997), this court 

### rejected the argumentthat the plaintiffin an asbestos case was required to prove that but forexposure to the defendant's specific product, his injury would not have occurred. See also Cox v. Spangler. 141 Wn.2d 431, 443-44, 5 P.3d 1265 

### (2000) (approving a burden-shifting analysis in apportioning fault "[wjherethe

8No. 73542-0-1/9 

### tortious conduct of two or more actors has combined to bring about harm to the plaintiff....") (quoting Restatement (Second) ofTorts §433B (1965)). Inthe circumstances of this case, a but-for analysis produces results inconsistent with the purposes ofthe restitution statute. Like the Paroline Court,

we conclude that principles of alternative causation applicable in tort law are relevant in such circumstances. While the but-for analysis is the general test for actual causation, in the circumstances here, the trial court did not abuse its discretion in following the Paroline approach. Velezmoro next argues that Paroline is inapposite because itinterprets the federal restitution statute, not the Washington statute. He asserts that the statute at issue in Paroline, 18 U.S.C. §2259, is "a specialized federal statute with an alternative concept ofcausation." App. Br. at 11. The statute at issue in Paroline makes restitution mandatory for the full 

### amount oflosses "suffered bythe victimas a proximate result ofthe offense." 18 U.S.C. §2259(b)(3)(F). The term "victim" refers to "the individual harmed as a result of a commission of a crime underthis chapter. . . ." 18 U.S.C. §2259(c). 

### The Washington restitution statute, RCW 9.94A.753, applies "wheneverthe offender is convicted ofan offense which results in injury to any person. .. ." 

### RCW 9.94A.753(5). Restitution is mandatory "unless extraordinary circumstances existwhich make restitution inappropriate. . . ." RCW 9.94A.753(5). Both the federal and the Washington statute require a causal connection 

### between the victim's injury and the offender's crime by using the word "result."

9No. 73542-0-1/10 

### See Burraqe v. UnitedStates. 134 S. Ct. at 888 (stating that the phrase "results 

### from" imposes a requirement of actual causation). The federal statute requires restitution when a person is "harmed as a result of a commission of a crime. . . ." 

### 18 U.S.C. §2259(c). The Washington causation provision similarlyrequires restitution when a criminal offense "results in injury to any person." RCW 9.94A.753(5). The cause infact provisions ofthe two statutes are essentially the

same. We rejectVelezmoro's assertion that the federal statute expresses an alternative concept ofcausation. Next, Velezmoro appears to argue thatthe Washington restitution statute does not apply to the offense of possession of child pornography. He contrasts the location ofthe federal statute with that ofthe Washington statute. The federal statute is located within a chapter addressing sexual exploitation of children and specifically applies to offenses underthat chapter, including possession of child pornography. The Washington statute, on the other hand, is located within the general Sentencing Reform Act. The Washington restitution statute is not limited to specific crimes but applies "wheneverthe offender is convicted ofan offense which results in injury 

### to any person. . . ." RCW 9.94A.753(5). To acceptVelezmoro's assertion that the restitution statute does not apply to possession of child pornography, we would have to conclude that that offense does not result in injury to the child victim. This is contrary to the intent ofchapter 9.68A RCW, the chapter criminalizing sexual exploitation ofchildren.

10No. 73542-0-1/11 In a statement offindings and intent, the legislature stated its purpose to protect children from the harms ofsexual exploitation and abuse. RCW 

### 9.68A.001. Every instance of viewing child pornography is "a renewed violation" and "a repetition of their abuse." RCW 9.68A.001(3). Protecting children from these harms is ofsuch importance that the legislature amended the chapterto 

### specify that the unit ofprosecution forpossession of childpornography is per incident. RCW 9.68A.001. Given these legislative findings, it is not reasonable to 

### conclude that possession of childpornography is a victimless crime to which the 

### restitution statute does not apply. We reject Velezmoro's argument.3 We conclude thatthe trial court did not err in ordering restitution. The 

### restitution statute requires a causal connection between the crime and the injury. 

### While the but-fortest is the general testfor actual causation, the trial court did not


### errin applying an alternative causation analysis in the circumstances here. Velezmoro nextargues that the trial court erred in setting the amount of restitution. The Washington restitution statute provides for an amount of restitutionbased on "easilyascertainable damages." RCW 9.94A.753(3). Easily 

### ascertainable damages include "actualexpenses incurred for treatment forinjury 

### to persons, and lostwages resulting from injury." RCW 9.94A.753(3).

3Velezmoro also argues that therestitution statutespecifically addresses thecrime of 

### rape ofachild. He assertsthat, ifthelegislature intendedthestatutetoapply topossession of child pornography, itwould have created a section specifically addressing thatcrime. This 

### argumentiswithoutmerit. The section ofthe restitution statuteconcerning rape ofachild, RCW 9.94A.753(6), specifies that, where achild rapevictim becomes pregnant, restitution mustinclude all of thevictim's medical expenses and support for a child born as a result of the rape. RCW 

### 9.94A.753(6). The provision hasno bearing on application oftherestitution statuteto the crimeof possession of child pornography. 11No. 73542-0-1/12 The State must produce substantial evidence to support a claim of loss. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008) (citing State v. Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994)). If a defendant disputes the amount of restitution, the State must prove the damages by a preponderance ofthe evidence. Id (citing Kinneman, 155 Wn.2d at 285). Evidence is sufficient if itaffords a reasonable basis to estimate the loss and does not depend on "'mere speculation or conjecture.'" Id (quoting State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005)). The State need not establish the amount ofloss "with specific accuracy." Kinneman, 155 Wn.2d at 285. Inthis case, the trial court considered evidence ofthe losses Vicky suffered as a result ofthe ongoing distribution ofher images. The evidence 

### included psychological reports diagnosing post-traumatic stress disorder and documenting her need forcounseling; account statements showing her 

### counseling expenses; victim impact letters; and an economist's calculation of lost wages. Vicky calculated her actual losses forcounseling and lostwages at $246,658. She requested restitution in the amount of$5000 as a reasonable apportionmentforVelezmoro's share inher injury. Prior to the restitution hearing, Velezmoro disputed Vicky's calculation, 

### arguing that losses incurred before his charged offense could notproperly be included. Vicky disputed this position, but submitted a second calculation showing her post-offense losses at $183,819. Velezmoro also asserted thatVicky had already received restitution forthe full amount of her losses from other defendants. In response, Vicky noted that,

12No. 73542-0-1/13 

### unlike the Washington statute, the federal restitution statute allows for recovery offuture lost wages, litigationexpenses, and attorney's fees. She stated her losses under the federal statute amounted to $1,084,053. She had been awarded $692,548 infederal restitution and had approximately $391,500 in unrecovered 

### losses. Comparing the amounts eligible underthe Washington and the federal 

### statutes, Vicky calculated that Washington allowed restitution for 17 per cent of the losses eligible underthe federal statute. Vickyapplied the same ratio to her uncompensated losses and determined thatthe portion ofunrecovered losses 

### eligible forrestitution inWashington amounted to $66,085. Herrequestfor $5000 restitution as a reasonable apportionmentfromVelezmoro remained unchanged. The trial court awarded $5000 in restitution. The trial court stated that it 

### was awarding restitutionas recovery for Vicky's actual losses and that itfound $5000 to be a reasonable apportionmentforVelezmoro's share inthose losses. 

### Velezmoro argues that the trial court abused its discretion because the $5000 was a speculative amount. He relies on cases in which courts have reversed an award of restitution because the State failed to prove a causal connection between the amount of restitution ordered and the defendant's 

### specific offense. Forexample, in Griffith, thevictims lostvaluablesincluding several expensive pieces of jewelry in a homeburglary. Griffith, 164Wn.2d at 962-63. Griffith sold a pearl necklace taken in the burglary to a pawnshop and, 

### based on the incident, pleaded guiltytotrafficking in stolen property. |d at 963. The trial court ordered Griffith to pay $11,500 as restitution for all of the victims' 

### missingjewelry. ]d at 964. Butthe SupremeCourt reversed because the State

13No. 73542-0-1/14 had produced no evidence that Griffith possessed the victims' unrecovered rings and necklaces. Id at 967. See also State v. Dedonado. 99 Wn. App. 251, 991 P.2d 1216 (2000) (reversing an award of restitution where the State did not show

a causal connection between the defendant's offense and the damages). Velezmoro's cases are inapposite because they do not address the circumstances ofthis case. In following the Paroline approach, the trial court

must use its discretion to award restitution for a share ofthe victim's losses. The Paroline Court declined to "prescribe a precise algorithm for determining the proper restitution," but held thatthe trial court should assess "an individual defendant's role inthe causal process behind a child-pornography victim's losses. . . ." Paroline, 134 S.Ct. at 1728. The Paroline Court suggested "a variety 

### offactors district courts might consider" inassessing restitution, including the 

### number ofpastdefendants found to have contributed to the victim's losses, the broader number ofoffenders involved, reasonable predictions ofthe number of 

### future offenders likely to be convicted, and how many images ofthe victim the defendant possessed, jd Butthe Court emphasized thatthese factors were 

### merely"rough guideposts." Id In remanding forassessment ofrestitution, the Court instructed that the award should be more than a "token" but should not be "severe." Jd at 1727. In this case, the trial court considered evidence establishing the amount of 

### Vicky's losses caused by the ongoing distribution of her images. The court inquiredas to the amount ofunrecovered losses. The trial court exercised its discretion and found $5000 to be a reasonable share ofVicky's losses

14No. 73542-0-1/15 

### considering Velezmoro's role increating a marketfor Vicky's images. The amount is less than 10 per cent of Vicky's unrecovered loss eligible for restitution underWashington law. The award is based on proper grounds and is not manifestly unreasonable. We conclude that the trial court did not abuse its discretion. But Velezmoro asserts that the trial court abused its discretion even under the Paroline approach. He argues thatthe trial court failed to consider the factors enumerated in Paroline and thus failed "to engage in the sort of calculation required by that decision." App. Br. at 13-14. We reject this argument because the Paroline Court expressly and repeatedly declined to fix a "rigid formula" for 

### assessing restitution. Paroline. 134 S.Ct. at 1728. While the Paroline Court 

### proposed factors forthe trial court to consider, it notably did not require the trial court to weigh these factors on the record. Velezmoro next argues thatthe trial court abused its discretion in relying 

### on Vicky'scalculations. He contends that Vicky'scalculations are inapposite because she fails to prove the share ofher damages caused by possession of 

### her images in Washington. He also asserts that the restitutionVicky has already received has more than compensated herforthose losses allowable under Washington law, so that she has no unmet loss. 

### Velezmoro's argument is untenable because, in a case where child 

### pornography has been distributed to an unknownnumber of viewers throughout the country and internationally, it is impossible to determine the share of the

15No. 73542-0-1/16 victim's damages caused by Washingtonians. And it is unclear why Velezmoro would have restitution ordered underfederal law apply first to damages eligible underWashington law, so that Vicky has no unmet loss inWashington. We reject Velezmoro's arguments concerning Vicky's calculations. Finally, Velezmoro argues that, if he does not prevail, this court should not authorize any costs ofappeal. This court may require an appellant in a criminal



### case to pay appellate costs. RCW 10.73.160(1). We may consider appellate costs when the appellant raises the issue in briefing. State v. Sinclair, 192 Wn. 

### App. 380, 385, 367 P.3d 612, rev. denied, 185 Wn.2d 1034, 377 P.3d 733 (2016). When the trial court has determined that the appellant is indigent, 

### indigency is presumed to continue throughout the appeal, jd at 393. The trial court determined that Velezmoro was indigent. The State makes 

### no argument concerning appellate costs and presents no evidence to rebut the 

### presumption thatVelezmoro isindigent. We decline to award costs of appeal to
the State. Affirmed.

WE CONCUR: 

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