FILED 


SEPTEMBER 10,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31972-5-111 

Respondent, ) 

) 

v. ) 

) 

KEENAN WALTER ROSS, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

SIDDOWAY, C.J. - Keenan Ross appeals $54,580 imposed as restitution for a 

burglary of a cold storage warehouse. The substantial restitution ordered reflected the 

cost of repairing refrigeration equipment and its controls and sensors following the close 

cutting and stripping of all its copper tubing and wires. Mr. Ross argues that because 

none of the stolen copper was found when he was apprehended at the scene ofthe 

burglary, the State failed to prove a causal connection between his crime and the damage 

caused by theft ofthe copper. 

The underlying facts ofthe burglary charge, established by a preponderance ofthe 

evidence, was of a burglary that had likely taken place over more than one night. 

Substantial evidence supports the sentencing court's implicit finding that "but for" Mr. 

Ross's burglary, the extensive damage to the refrigeration equipment would not have 

occurred. We affirm. 
No. 3 I 972-5-III 

State v. Ross 

FACTS AND PROCEDURAL BACKGROUND 

Over a nine month period in 2012, Keenan Ross was caught committing two 

crimes in Yakima County, the charges for which he later resolved in a global plea 

agreement leading to this appeaL 

In the first case, Yakima Superior Court Cause No. 12-1-00295-4, Sergeant 

Guillermo Rodriguez was conducting an early morning patrol (around 2:00 to 3:00 a.m.) 

that included checking on city-owned property on Crusher Canyon Road on February 23, 

2012, when he noticed a small red pickup parked in a ditch in the vicinity of an unused 

cold storage warehouse. No one was in the truck. He ran its license plate number to 

confirm that it had not been reported stolen. After looking around the area and not 

noticing anything out of order, he assumed that someone broke down and left the truck 

behind. 

The next night, conducting the same patrol at approximately the same time, the 

sergeant saw the red pickup in the same general area but in a different location. This time 

the truck was "backed up into the weeds ... within a few hundred ... yards from the 

warehouse." Report of Proceedings (RP) at 45. On completing his patrol of the area and 

returning to town, he noticed that the pickup had been moved again and was now parked 

next to the warehouse, where two men-one of them Mr. Ross-were in the process of 

loading a condenser unit into the truck. 

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No. 31972-5-III 

State v. Ross 

Selah police contacted Danny Garner, the owner of the warehouse, who confirmed 

that the removal of equipment was unauthorized and drove to the warehouse to assess the 

extent ofthe crime. He saw that padlocks had been cut off doors to the two rooms where 

compressors were stored, that all of the copper lines for the Freon had been severed and 

removed, that the electrical system had been stripped of all its heavy wiring, that the 

control panels and control wiring had all been severed for their copper wiring, that both 

compressors had been unbolted from the floor in apparent preparation for stealing them, 

that the condenser unit that Mr. Ross and his partner in crime were about to load into the 

truck had been taken from the end of the building, and that a second condenser unit from 

the roofwas missing. Mr. Ross was charged with second degree burglary and attempted 

first degree theft. 

In the second case (this one) a customer ofa Yakima antiques shop saw Mr. Ross 

offer to sell the proprietors some antique beer paraphernalia that the customer was sure 

had been stolen from a friend's home in a burglary two weeks earlier. The customer 

called police, and officers dispatched to the store questioned Mr. Ross, who provided 

inconsistent explanations as to how he acquired the items. Officers e-mailed pictures of 

the items to the victim of the burglary, who confirmed they were hers. Mr. Ross was 

charged with first degree trafficking in stolen property and second degree possession of 

stolen property. 

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No. 31972-5-III 

State v. Ross 

Several months after this second crime, Mr. Ross reached a global plea agreement 

in this case, under which he agreed to enter an Alfordl plea to a charge of first degree 

trafficking in stolen property for the attempted sale ofthe stolen beer paraphernalia and to 

pay restitution for the warehouse burglary in case no. 12-1-00295-4. In exchange, the 

State dismissed the possession of stolen property charge in this case and dismissed all 

charges against Mr. Ross in the earlier warehouse burglary case. 

After the Alford plea was entered, a restitution hearing was conducted. The State 

called Sergeant Rodriguez to testify to his observations and actions on February 23 and 

24 and Mr. Gamer to testifY to the damage to the equipment in the warehouse. 

Mr. Gamer testified that he had owned the warehouse for about 10 years. The last 

time he had been to the property before receiving the call from Selah police on February 

24 was only two days earlier, on February 22, and nothing was missing or damaged at 

that time. He described the damage that took place sometime between February 22 and 

24, and provided estimates of the cost of repair or replacement as follows: 

• 	 The padlocks on doors to the compressor rooms that had been cut 

and were missing were Master Locks, whose replacement cost 

would be $40 each, 

• 	 He had obtained an estimate from RECO Refrigeration that the cost 

of repairing the cooling systems would be $40,000 and the cost of 

replacement would be "[u]pwards of$70 grand" for "just the 

mechanical portions," 

I North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970). 

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No. 31972-5-III 

State v. Ross 

• 	 He had obtained an estimate from Arrow Electric that the cost of 

repairing the electrical wiring would be between $15,000 and 

$18,000, and 

• 	 He believed that $4,000 to $5,000 worth of Freon had been lost 

when the copper tubing was cut. 

RP at 12,29, 31. 

The defense thoroughly cross-examined Mr. Gamer and Sergeant Guillermo. 

Among other challenges to the State's proof, Mr. Ross's lawyer argued that the State had 

not proved, "as they need tor,] that Mr. Ross was the person that removed the equipment 

that was missing and not found on the night of February 24th," explaining that the 

defense had specifically requested a restitution hearing "because when you looked at the 

materials that were found in and around the truck it didn't come anywhere close to what 

[they're] claiming as damages." RP at 49,51. 

After considering supplemental briefing requested from the parties, the sentencing 

court reconvened the parties to announce its decision to award restitution of $54,580, 

based on the repair estimates obtained by Mr. Gamer. It refused to award any amount for 

the Freon, finding the State's evidence insufficient. Following the entry of findings and 

conclusions prepared by the State, Mr. Ross appeals. 

ANALYSIS 

Mr. Ross argues that because the State presented no evidence that any copper wire 

or tubing were found when Mr. Ross was apprehended, the restitution award included 

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No. 31972-5-II1 

State v. Ross 

damages that were caused by acts that preceded the crime charged and were not causally 

connected with it. At most, he argues, the State established that restitution was owed for 

the value ofthe two padlocks that had been cut. 

A trial coures authority to order restitution is derived entirely from statute. State 

v. Tobin, 161 Wn.2d 517,523, 166 P.3d 1167 (2007). Under RCW 9.94A.753(5), 

restitution "shall be ordered whenever the offender is convicted of an offense which 

results in injury to any person or damage to or loss ofproperty," unless "extraordinary 

circumstances" make restitution inappropriate. The statute authorizes a court to order 

restitution up to twice the amount ofthe victim's loss resulting from the crime. RCW 

9.94A.753(3). 

Under RCW 9.94A.753(3), restitution must be based on "easily ascertainable 

damages for injury to or loss of property, actual expenses incurred for treatment for 

injury to persons, and lost wages resulting from injury." But while the damages must be 

"easily ascertainable," the "amount of harm or loss 'need not be established with specific 

accuracy.'" State v. Kinneman, 155 Wn.2d 272,285,119 P.3d 350 (2005) (quoting State 

v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), overruled on other grounds by 

Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). 

Rather, "[ e ]vidence supporting restitution' is sufficient ifit affords a reasonable basis for 

estimating loss and does not subject the trier of fact to mere speculation or conjecture.'" 

State v. Griffith, 164 Wn.2d 960,965, 195 P.3d 506 (2008) (quoting Hughes, 154 Wn.2d 

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No. 31972-5-111 

State v. Ross 

at 154). To support an order for restitution, the State must prove a causal connection 

between the crime charged and the victim's loss by a preponderance of the evidence. 

Hughes, 154 Wn.2d at 155. 

Restitution is only allowed for losses "causally connected" to the crime charged. 

Kinneman, 155 Wn.2d at 286; State v. Enstone, 89 Wn. App. 882, 886, 951 P.2d 309 

(1998), aff'd, 137 Wn.2d 675,974 P.2d 828 (1999) (there must be a causal connection 

"between the crime and the injuries for which compensation is sought"). "Losses are 

causally connected if, but for the charged crime, the victim would not have incurred the 

loss." Griffith, 164 Wn.2d at 966. 

Because restitution is limited to losses incurred'" as a result ofthe precise offense 

charged,,,,2 the general rule is that "[a] defendant may not be required to pay restitution 

beyond the crime charged or for other uncharged offenses." State v. Johnson, 69 Wn. 

App. 189, 191,847 P.2d 960 (1993). In other words, restitution 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.'" Woods, 90 Wn. App. at 907-08 (quoting 

State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993)). 

An exception to this rule applies where a defendant pleads guilty and'" expressly 

agrees'" as part ofthe plea bargaining process'" to pay restitution for crimes for which 

2State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998) (quoting State v. 

Mizak, 69 Wn. App. 426, 428,848 P.2d 1329 (1993)). 

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No. 31972-5-111 

State v. Ross 

[she] was not convicted.'" Id. at 908 (quoting Johnson, 69 Wn. App. at 191); RCW 

9.94A.753(5) (providing that restitution shall be ordered "if the offender pleads guilty to 

a lesser offense or fewer offenses and agrees with the prosecutor's recommendation that 

the offender be required to pay restitution to a victim of an offense or offenses which are 

not prosecuted pursuant to a plea agreement"). Mr. Ross does not dispute that as part of 

the global plea agreement, he agreed to pay restitution for the crimes charged in case no. 

12-1-00295-4. 

Subject to the foregoing limitations, the trial court has broad discretion in deciding 

to impose restitution and the amount thereof. State v. Woods, 90 Wn. App. at 906; 

Hughes, 154 Wn.2d at 153. Accordingly, a trial court's order of restitution will not be 

disturbed on appeal unless it is '" manifestly unreasonable or the sentencing court 

exercised its discretion on untenable grounds or for untenable reasons.'" Woods, 90 Wn. 

App. at 906 (quoting State v. Hunotte, 69 Wn. App. 670, 674, 851 P.2d 694 (1993)). 

Mr. Ross likens this case to Woods and State v. Acevedo, 159 Wn. App. 221, 248 

P.3d 526 (2010), in which restitution orders were reversed as including losses not 

causally related to the crime charged. In Woods, the defendant was charged with and 

pleaded guilty to possessing a stolen truck on September 4, 1995. 90 Wn. App. at 908. 

She was ordered to pay restitution for personal property of the victim that was stolen 

from the truck in August. While the State presented evidence that Ms. Woods actually 

stole the truck on August 17 and may well have stolen the personal property, the 

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I 

No. 31972-5-III 

State v. Ross 

appellate court reversed the restitution ordered, reasoning that because Ms. Woods had 

been charged only with possession of stolen property, not theft-and in September, not 

August-she could not be ordered to pay restitution for the missing personal property. 

Id. at 908-09. "Restitution for loss beyond the scope of the crime charged is properly 

awardable only when the defendant enters into an express agreement, as part ofthe plea 

bargain process, to make such restitution"-and Ms. Woods had not entered into any 

such agreement. Id. at 909. 

Similarly, in Acevedo, the defendant was convicted of possessing a stolen Acura 

some six months after it had been stolen, involved in a wreck, stripped, and then sold to 

Mr. Acevedo for parts. 159 Wn. App. at 225. Although this court rejected his argument 

that he had purchased and possessed stolen "parts," not a stolen "motor vehicle," it 

agreed with Mr. Acevedo that the amount of restitution ordered had to be based on the 

value ofthe Acura in Mr. Acevedo's hands, not the value at the time it was originally 

stolen. Because "no evidence show[ ed] that the Acura would not [have been] stripped 

'but for' Mr. Acevedo's possession ofit[,] the State ... failed to show a causal 

connection between Mr. Acevedo's crime and the damage." 159 Wn. App. at 231. But 

cf State v. Mead, 67 Wn. App. 486, 491,836 P.2d 257 (1992) (holding that it was 

"reasonable to infer" from evidence of defendant's possession of stolen cases within 

which victim's coin collection had been housed that there was a causal connection with 

the victim's loss of the coins). 

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No. 31972-5-111 

State v. Ross 

Mr. Ross's argument would support a substantially smaller restitution amount ifhe 

had only been charged with the attempted theft ofthe air conditioner unit and/or pump 

compressor and only "on February 24." In that case, he could more reasonably argue that 

other, earlier criminal acts on his part proved by the State were, at best, part of a general 

scheme or act that was not a part of the charge. 

But Mr. Ross was also charged with second degree burglary under RCW 

9A.52.030(1) and RCW 9A.08.020. The information alleged: 

On or about February 24, 2012 ... acting as a principal or an 

accomplice to another participant in the crime[,] you or another participant 

in the crime, with intent to commit a crime against a person or property 

therein, entered or remained unlawfully in a building located at 1580 

Crusher Canyon Road, Selah, Washington, the property ofDanny Joe 

Gamer. 

CP at 61. 

In assessing the required causal connection between the charged crime and the 

losses requested as restitution, we look at the underlying facts of the charged crime, not 

the generally defined elements ofthe crime. State v. Hiett, 154 Wn.2d 560, 565, 115 

PJd 274 (2005). Here, Sergeant Rodriguez's testimony provided substantial evidence 

that Mr. Ross's and his partner's burglary occurred over more than one evening. While it 

would have strengthened proof of the restitution damages if the stolen copper had been 

found at the scene or traced to Mr. Ross, the standard of proof required is only 

preponderance ofthe evidence. Applying a preponderance standard, the sentencing court 

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No.31972-5-III 

State v. Ross 

could readily find that all the damage identified by Mr. Gamer occurred during Mr. 

Ross's and his partner's burglary of the warehouse. Applying the required "but for" 

analysis, it could reasonably find that had Mr. Ross and his partner not committed the 

crime charged, the loss would not have occurred. 

Affirmed. 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Brown, 1. 

11