FILED
OCTOBER 27, 2016
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. 33418-0-111
Respondent, )
)
V. )
)
NATHAN EARL ELDRED, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -Nathan Eldred challenges the imposition of restitution after he
pied guilty to rendering criminal assistance and possession of stolen property. He claims
that his crimes did not result in the victim's loss of the stolen goods. We conclude that
the trial court did not abuse its discretion when finding that at least one ofEldred's
crimes led to 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 of January and early February 2013, a period of heavy snow
fall, Abbott absented the rural home. He returned home on February 14 to discover his
home and shed burglarized. One or more intruders pushed in the back door to Mike
Abbott's home and cut the lock from the shed's _front sliding doors. The burglars took
No. 33418-0-111
State v. Eldred
from the shed two John Deere push lawn mowers, a Red Max weed eater, four Proxes
tires with black wheels, four Kumho tires with Hoyo wheels, a Snap On tool box, and
snowmobile covers.
, Beginning on February 17, 2013, Lincoln County Sheriff Deputy Andy Manke
investigated the burglary. Deputy Manke interviewed witnesses who claimed Stephen
Murphy participated in the theft. Deputy Manke also heard that burglars used Nathan
Eldred's pickup truck to transport stolen goods from Mike Abbott's farm. Spokane
Tribal officers visited Eldred's Wellpinit home and observed a John Deere push mower
in the open garage.
Lincoln County Sheriff Deputy Andy Manke interviewed Stephen Murphy and
Nathan Eldred after each waived his respective Miranda rights. The confessions of each
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 of Rosemarie Murphy, Stephen's mother. We do not know the
last names of Nick and Kayla. Nick and Kayla returned from the burglary to the Murphy
home without the burglarized property. The two informed Steven Murphy that they
needed a truck to move the purloined items. Murphy called Nathan Eldred, who drove
his truck to Rosemarie Murphy's house. Eldred, K.C., and Nick then journeyed, in
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Eldred's pickup truck, to Abbott's farmhouse and loaded tires and lawn mowers into the
truck. Steven Murphy claimed he 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 of Nick's debt to the dealer. Murphy removed one lawn mower from
Nathan Eldred's pickup 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 Sheriff Deputy 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's truck to transport stolen property.
Steven Murphy drove Eldred's pickup truck to Abbott's farmhouse with Nick as a
passenger and Eldred following in Murphy's Jeep. Eldred parked on the side of the road
while Murphy and Nick loaded the pickup truck at Abbott'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, of unknown location. Murphy later
arrived at the Walmart, the two exchanged vehicles, and Nathan Eldred drove his pickup
truck home to Wellpinit.
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Nathan Eldred admitted to Sheriff Deputy Andy Manke that he held possession of
a green John Deere lawn mower. He claimed that Stephen Murphy abandoned the
mower in his pickup truck.
The police recovered one of the stolen mowers at Nathan Eldred's residence and
the other mower at the home of Rosemarie Murphy, Steven Murphy's mother. One of
the stolen mowers was returned to Mike Abbott, but he had already purchased a
replacement mower. There is no evidence that the police recovered any of the trafficked
tires or wheels.
PROCEDURE
The State of Washington initially charged Nathan Eldred with residential burglary
and burglary in the second degree. On November 18, 2014, the State filed an amended
information as part of a global resolution of this prosecution and a second prosecution
against Eldred. Under the amended information, the State charged Eldred with rendering
criminal assistance in the second degree, possession of stolen property in the second
degree, driving while under the influence, and possession of a controlled substance.
Eldred pled guilty to all four counts. The latter two charges entail a separate incident.
In Nathan Eldred's statement on plea of guilty, he declared: "Instead of making a
statement, I agree that the court may review the police reports and/or a statement of
probable cause supplied by the prosecution to establish a factual basis for the plea."
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State v. Eldred
Clerk's Papers (CP) at 20. He also averred:
If this crime resulted in injury to any person or damage to or loss of
property, the judge will 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 plea hearing.
Therefore, the trial court scheduled a later restitution hearing.
During the restitution hearing, the State of Washington requested an award of
$3,544.25. The State submitted the following receipts to support the restitution request: a
Les Schwab receipt for the purchase of one set of tires 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 of tires costing $1,000.00.
Nathan Eldred contested imposition of any restitution other than the value of the lawn
mower found in his possession. He argued against imposition of any other restitution on
the basis that his crimes did not cause Mike Abbott's loss of other property.
The trial court imposed $3,106.65 in restitution: $424.94 for one of the lawn
mowers, $1,681.71 for one set of tires and wheels, and $1,000.00 for the other set of tires
and wheels. The trial court worried that the lawnmower receipts 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 Defendant providing transportation and assistance after
the Burglary occurred and but for the Defendant's possession of stolen
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property, the victim would not have suffered damages. Therefore, the
imposition of restitution for all the items and damages requested by the
State is appropriate and supported by law.
CP at 55.
LAW AND ANALYSIS
Nathan Eldred appeals the order of restitution. 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 granting restitution because his
convictions for rendering criminal assistance in the second degree and possession of
stolen property in the second degree lack a causal connection with Mike Abbott's loss of
his personal property. According to Eldred, the trial court imposed restitution based on a
general scheme of criminal activity but that was not part of the crime. The State responds
that an adequate causal link exists between Eldred's crimes and Abbott's property loss.
We agree with the State.
The authority to impose restitution is not an inherent power of the 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 of statutes address
restitution under varying circumstances. The controlling statute here is RCW
9.94A.753(5). The statute reads, in relevant part:
(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 of
property or as provided in subsection (6) of this section unless
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State v. Eldred
extraordinary circumstances exist which make restitution inappropriate in
the court's judgment and the court sets forth such circumstances in the
record. In addition, restitution shall be ordered to pay for an injury, loss, or
damage 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.
RCW 9.94A.753.
One goal of restitution is to require the defendant to face the consequences of his
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 designed to
promote respect for the law by providing punishment that is just. 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 relevant to the determination of restitution, the State must prove the amount
by a preponderance of the evidence at an evidentiary hearing. State v. Dedonado, 99 Wn.
App. 251,256,991 P.2d 1216 (2000). A trial court's order of restitution is reviewed for
abuse of discretion. 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.
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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 of restitution must be based on a causal connection between 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 beyond the
scope of the crime charged is properly awardable only when the defendant enters into an
express agreement, as part of the plea bargain 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 in terms of the crime
charged, the cases limit restitution to damages resulting from the crime of conviction.
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.
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No. 33418-0-111
State v. Eldred
Kinneman, 155 Wn.2d at 286 (2005). Restitution may not be based on acts connected
with the crime charged, when those acts are not part of the charge. State v. Harrington,
56 Wn. App. at 179; State v. Hartwell, 38 Wn. App. 135, 141, 684 P.2d 778 (1984),
overruled on other grounds by State v. Krall, 125 Wn.2d 146, 881 P.2d 1040 (1994).
Going further, under one of our decisions, restitution can be based only on damage
caused during the dates for which the State charged the 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 constituting the crime cannot be causally connected. State v. Woods, 90
Wn. App. at 909. We also agree in theory with Eldred's contention that 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 of the charge. State v. Woods, 90 Wn. App.
at 907-08 ( 1998). We think those principles, however, inapt under the circumstances of
this appeal.
Pertinent to this appeal, Nathan Eldred pled guilty to two crimes. We need only
decide if one of the crimes resulted in Mike Abbott's loss. We conclude that at least one
ofEldred's crimes directly led to the removing of Mike Abbott's goods from Abbott's
land.
Nathan Eldred argues that his rendering of criminal assistance did not cause Mike
Abbott's losses and this crime does not qualify him for restitution. The criminal
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No. 33418-0-111
State v. Eldred
assistance statute reads:
A person is guilty of rendering criminal assistance in the second
degree if he or she renders criminal assistance to a person who has
committed or is being sought for a class B or class C felony or an
equivalent juvenile 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 of the 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 a judgment for restitution for loss resulting from
the original crime of others since we may rest our decision on other grounds.
Under the facts of this case, Nathan Eldred's unlawful possession of stolen
property was one cause of Mike Abbott's losses. The possession statute reads:
A person is guilty of possessing stolen property in the second degree if:
(a) He or she possesses stolen property, other than 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 Eldred that culpability for possession of stolen
property does not necessarily include culpability for the stealing of the property. The
actual thief is guilty of a different crime. State v. Griffith, 164 Wn.2d 960,967, 195 P.3d
506 (2008). Once again, however, we consider these rules relevant to the issue on
appeal.
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No. 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 of restitution against a defendant convicted of
possessing stolen jewelry. The trial court assessed restitution for the value of all jewelry
stolen from the victim. The Supreme Court reversed on the basis that the evidence did
not show that Joan Griffith possessed all of the jewelry taken from the victim. Perhaps
inconsistent with other decisions, the high court implied that restitution could be imposed
on the possessor of stolen property regardless of whether the possessor participated in the
theft.
More on point to this appeal is State v. Rogers, 30 Wn. App. 653, 638 P.2d 89
( 1981 ). The trial judge entered a finding that Richard Rogers disposed of parts of a
stolen truck and was to be paid a commission for doing so. The court held that, when the
defendant's proven possession is part of a scheme to dispose of property and thereby
leads to permanent deprivation of an owner's property, a defendant is chargeable with
such deprivation, and restitution for the value of the 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 not remove the purloined articles of property the day of
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No. 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 of his lawn
mowers, tires, weed eater, and tool box until Eldred participated in the crime and Eldred
removed the items in his pickup truck.
The trial court could accept the statement of Steven Murphy as to how the crime
occurred. Under Murphy's version of the story, Nathan Eldred was physically present 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 at the same time and placed in the pickup of
Nathan Eldred.
Nathan Eldred contends that he assisted the thieves only by helping them forgo
apprehension. Eldred also contends no evidence supports that he 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 against Nathan
Eldred.
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No. 33418-0-111
State v. Eldred
A majority of the 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:
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