### FILED SEPTEMBER 10,2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31972-5-111 Respondent, ) ) v. ) ) KEENAN WALTERROSS, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Keenan Ross appeals $54,580 imposed as restitution for a burglary ofa cold storage warehouse. The substantial restitution ordered reflectedthe cost ofrepairing refrigeration equipment and its controls and sensors following the close cutting and stripping ofall its coppertubing and wires. Mr. Ross argues thatbecause
none ofthe stolen copperwas found when he was apprehended atthe scene ofthe burglary, the State failed toprove a causal connection between his crime and the damage causedbytheft ofthe copper. The underlying facts ofthe burglary charge, establishedby a preponderance ofthe evidence, was ofa burglarythathad likely takenplace over morethan onenight. Substantial evidence supports the sentencing court's implicit finding that "but for" Mr. Ross'sburglary, the extensive damage tothe refrigeration equipmentwould nothave occurred. We affirm.No. 3

### I972-5-III State v. Ross
FACTS AND PROCEDURAL BACKGROUND Over a nine month period in 2012, Keenan Ross was caught committingtwo 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 ofan 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 oforder, he assumed that someone broke down and left the truck behind. The next night, conductingthe same patrol at approximately the sametime, 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 ofProceedings (RP) at 45. On completing his patrol ofthe area and returning to town, he noticed thatthe pickup had been moved again and was now parked next to the warehouse, where two men-oneofthem Mr. Ross-were in the process of loading a condenserunit into the truck.

2No. 31972-5-III State 

### v. Ross
Selahpolice contactedDanny Garner, the owner ofthe warehouse, who confirmed that the removal ofequipment was unauthorized and drove to the warehouse to assess the extent ofthe crime. He sawthat padlocks had been cut offdoors to the two rooms where compressors were stored, that all ofthe copper lines for the Freon had been severed and removed, that the electrical system hadbeen stripped ofall 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 stealingthem, that the condenserunit that Mr. Ross and his partner in crimewere about to load intothe truck hadbeen taken from the end ofthebuilding, and that a second condenser unit from the roofwas missing. Mr. Ross was chargedwith second degree burglary and attempted first degree theft. In the second case (this one) a customer ofaYakima antiques shop sawMr. Ross offerto sell the proprietors some antique beerparaphernalia that the customer was sure hadbeen stolen from a friend's home in a burglarytwoweeks earlier. The customer calledpolice, 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 tothe victim ofthe burglary, who confirmedthey were hers. Mr. Ross was charged with first degree trafficking in stolen property and second degree possession of stolen property.



### 3No. 31972-5-III State v. Ross
Several months after this second crime, Mr. Ross reached a global plea agreement in this case, underwhich he agreed to enter anAlfordl plea to a charge offirst degree trafficking in stolen property for the attempted sale ofthe stolen beerparaphernalia and to pay restitution for the warehouse burglary in case no. 12-1-00295-4. Inexchange, the State dismissed thepossession ofstolenproperty charge in this case and dismissed all charges against Mr. Ross in the earlier warehouse burglary case. AftertheAlfordpleawas entered, a restitution hearingwas conducted. The State called SergeantRodriguezto testify to his observations and actions on February 23 and 24 andMr. Gamerto testifY to the damage to the equipment in the warehouse. 

### Mr. Gamertestified that he had owned the warehouse for about 10 years. The last time hehad been to the property before receivingthe call from Selahpolice onFebruary 24 was only two days earlier, on February 22, and nothing was missing or damaged at that time. He described the damagethat took place sometime between February 22 and 24, and provided estimates ofthe cost ofrepair or replacement as follows:
• Thepadlocks on doors to the compressor rooms thathad been cut and were missing were MasterLocks, whose replacement cost would be $40 each,
• Hehad obtained an estimate from RECO Refrigeration that the cost ofrepairing the cooling systems would be $40,000 and the cost of replacement would be "[u]pwards of$70 grand" for "justthe mechanical portions,"

I North Carolina 

### v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970). 4No. 31972-5-III State v. Ross

• He had obtained an estimate from ArrowElectricthat the cost of repairing the electrical wiring would bebetween $15,000 and $18,000, and
• He believed that $4,000to $5,000 worth ofFreon had been lost whenthe coppertubing was cut. RP at 12,29, 31. The defense thoroughly cross-examined Mr. Gamer and Sergeant Guillermo. Among other challenges to the State'sproof, Mr. Ross's lawyer argued that the State had notproved, "as they need tor,] that Mr. Ross was the personthat removed the equipment that was missing and not found onthe night ofFebruary 24th," explainingthat the defense had specifically requested a restitution hearing "becausewhen you looked at the materials that were found in and around the truck it didn'tcome anywhere close to what [they're] claiming as damages." RP at49,51. After considering supplemental briefing requested from the parties, the sentencing court reconvened the parties to announce its decision to awardrestitution of$54,580, based on the repair estimates obtained by Mr. Gamer. It refusedto award any amount for the Freon, finding the State's evidence insufficient. Following the entry offindings and conclusions prepared by the State, Mr. Ross appeals. ANALYSIS Mr. Ross argues thatbecause the Statepresented no evidence that any copperwire
or tubing were found whenMr. Ross was apprehended, the restitution award included 5No. 31972-5-II1 State v. Ross damages that were caused by acts thatpreceded the crime charged and were not causally connected with it. At most, he argues, the State establishedthat 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 ofan 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 ofthevictim'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 orloss ofproperty, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury." Butwhile the damages mustbe "easily ascertainable," the "amountofharm or loss 'neednot 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), overruledon othergrounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d466 (2006)). Rather, "[e]vidence supporting restitution'is sufficient ifit affords areasonable basis for estimating loss and does not subjectthe trier offact to mere speculation or conjecture.'" State v. Griffith, 164 Wn.2d 960,965, 195 P.3d 506 (2008) (quotingHughes, 154 Wn.2d 6No. 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 apreponderance ofthe 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 "betweenthe crime and the injuries for which compensation is sought"). "Losses are causally connected if, but for the charged crime, the victim would not have incurredthe 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 bargainingprocess'" to pay restitution for crimes for which
2

### State 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)). 

### 7No. 31972-5-111 State v. Ross [she] was not convicted.'" Id. at 908 (quotingJohnson, 69 Wn. App. at 191); RCW 9.94A.753(5) (providing that restitution shall be ordered "ifthe offenderpleads guilty to
a lesser offense orfewer offenses and agrees with the prosecutor's recommendation that the offender be required to pay restitution to a victim ofan offense oroffenses which are notprosecutedpursuantto 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 andthe amount thereof. State v. Woods, 90 Wn. App. at 906; Hughes, 154 Wn.2d at 153. Accordingly, a trial court's order ofrestitution 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 (quotingState 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 defendantwas 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 ofthe 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 8

# I

No. 31972-5-III 

### State v. 

### Ross appellate courtreversed the restitution ordered, reasoning that because Ms. Woods had been charged only with possession ofstolen property, not theft-andin September, not August-she could not be ordered topay restitution for the missing personal property. Id. at 908-09. "Restitution for loss beyondthe scope ofthe crime charged is properly awardable only when the defendant enters into an express agreement, as part ofthe plea bargain process, to make such restitution"-andMs. Woods had not entered into any such agreement. Id. at 909. Similarly, in

### Acevedo, the defendant was convicted ofpossessing 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 courtrejected his argument that he had purchased and possessed stolen "parts,"not a stolen "motorvehicle," it agreed with 

### Mr. Acevedo that the amount ofrestitution orderedhad 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 

### cfState v. 

### Mead, 67 Wn. App. 486, 491,836 P.2d 257 (1992) (holding that it was "reasonableto infer" from evidence ofdefendant's possession ofstolen cases within which victim's coin collection had been housed that there was a causal connectionwith the victim's loss ofthe coins). 9No. 31972-5-111 State v. Ross
Mr. Ross's argument would support a substantially smallerrestitution amount ifhe had only been charged withthe attempted theft ofthe air conditionerunit and/orpump 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 ofa general scheme or actthat was not a part ofthe charge. ButMr. Ross was also chargedwith 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 orproperty therein, entered orremained 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 ofthe charged crime, not the generally defined elements ofthe crime. State v. Hiett, 154 Wn.2d 560, 565, 115 PJd 274 (2005). Here, SergeantRodriguez'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 proofofthe restitution damages ifthe stolen copperhadbeen found at the scene ortraced to Mr. Ross, the standard ofproofrequired is only preponderance ofthe evidence. Applying a preponderance standard, the sentencing court
10No.31972-5-III State 

### v. Ross
could readily find that all the damage identified by Mr. Gamer occurred during Mr. Ross's andhis partner's burglary ofthe warehouse. Applying the required "butfor" analysis, it could reasonably find thathad Mr. Ross and his partnernot committedthe crime charged, the loss would not have occurred. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but itwill be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Brown, 1.



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