                                                                                                                         FILED
                                                                                                             i,
                                                                                                              C          0
                                                                                                                  UIPJ
                                                                                                                             APPEALS
                                                                                                                   C,IVI "i 10sj Ii
                                                                                                                         S
                                                                                                        2013 DEC 10 AI g: 55




      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                      DIVISION II

STATE OF WASHINGTON,                                                                   No. 44307 -4 -II


                                        Respondent,


         V.



LARRY G. `BUDDY" KELLY,                                                        UNPUBLISHED OPINION




         HUNT, J —      Larry G-. "Buddy" Kelly appeals a restitution order entered after he pled guilty

to second degree theft and second degree possession of stolen property. He argues that sufficient

evidence does not support the ordered restitution amount. Agreeing, we remand for correction of

the amount of restitution.


                                                             FACTS


         In   his    plea     of   guilty,    Kelly      admitted    that   he " wrongfully        obtained         and      exerted


unauthorized        control    over [   the]      property   of     Greg    Dawson,      with     intent to        deprive"     and




 knowingly      possessed      property      of   Greg   Dawson."     Clerk'   s   Papers ( CP)   at   21.    As to restitution,


his   plea agreement stated, "       To: Victim Dawson —as             approved for loss from burglary, damage to

recovered     property."      CP at 12.


          At the restitution hearing, the State submitted the following list of Dawson' s claimed

expenses:
No. 44307- 4- 11



          Damaged locks and doors:                                                           200

          Destroyed utility trailer door:                                                    500

                                            1]
          Damaged CanAm ATV[                                                                no amount listed]
          Damaged Yamaha Boat motor 15 hp                                                   no amount listed]


          Not Recovered:
          1)           Honda 61/2 HP 2" water pump                                           850[ ]
          2)           Off Brand 6% HP 2" [ water pump]
                                   2                                                         400[ ]
          3)           Husky HD Generator                                                    850[ ]
          4)           Husquvarna Back -
                                       Pack Leaf Blower                                      750[ ]
          5)           Diamond Plate Truck Bed Tool Box -
                                                        HD                                   1, 200[ ]
          6)           Contents of Tool Box, estimated value                                 5, 000 to $ 7, 000
          7)           App[ roximately]. 200' ft of 2" flat lay hose [ and] fittings $200[ ]
          8)           3[   each] premium [ ] ATV      Helmets                               450[ ]
          9)           Large [ quantity]    of misc[ ellaneous]   tools,     est[   imate] $ 1, 500[ ]
          10)          Gas can [ and] pressure hose for Boat motor                           250[ ]

     2
          11)          HD Marine Battery                                                     120[ ]




Ex. 1.


          Dawson testified           on   direct   examination   that ( 1)    he " guesstimated about five hundred

            2
dollars ,       on   repairing the utility trailer door    and " guess[ ed]"           the cost of repairing the ATV at

 around $       1, 500"';    and ( 2) the values he listed for the items he did not recover were fair market


values.     On cross -examination, Dawson acknowledged that he had not obtained estimates for the


items he did          not recover.    He stated that his valuation of the tool box was his " best guess" and


that the $ 5,        000 to $ 7, 000 he listed for the     contents    of     the tool box       was also   a " guestimate."



Verbatim Report of Proceedings at 17, 18.




1 All terrain vehicle.

2 Verbatim Report of Proceedings ( VRP) at 7.

3VRPat8.

                                                             2
No. 44307- 4- 11




             The State        asked     the trial    court    to    set   the    restitution     amount      at $   14, 270, the total of


Dawson'        s    listed   amounts       on   Exhibit 1,    with $      5, 000 for the contents of the tool box, plus the

    1, 500 Dawson            estimated     to   repair   the ATV.         Kelly' s counsel objected to Dawson' s guesses as

to    valuations.        The trial         court   set   Kelly' s   restitution      amount      at $   14, 270.     Kelly appeals this
                               4
restitution amount.




                                                                 ANALYSIS


              Kelly argues that we should vacate the restitution order because the State did not present

substantial credible evidence of the amount of damage to the damaged items or the value of the


unrecovered           items.       See Br. of Appellant at 5 ( citing State v. Griffith, 164 Wn.2d 960, 965, 195

P. 3d 506 ( 2008)).                He   contends     that ( 1)      because Dawson gave only rough estimates of the

amounts of damage or loss, without corroboration, his testimony was insufficient evidence to
                                                                                                                           Kisors);

support        the   amount of       the   restitution order,       Br.   of    Appellant   at   7 ( citing State     v.              and ( 2)


Dawson             offered    only    guesses      about    the $ 500          for repairing the trailer door, the $ 1, 500 for


repairing the ATV, the $ 1, 200 for replacing the tool box,                                    and   the $   5, 000 for replacing the

contents of the tool box.


              The State responds that the property' s owner can testify to the value of that property,

State    v.    Hammond, 6 Wn.              App. 459,      461, 493 P. 2d 1249 ( 1972), and that we review a restitution


award for an abuse of discretion. Br. of Resp' t at 4 ( citing State v. Mark, 36 Wn. App. 428, 433,

675 P. 2d 1250 ( 1984)).                The State concedes, however, that ( 1) Dawson' s estimates for repairing



4 A commissioner of this court initially considered Kelly' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.

5
     State    v.        App. 610, 620, 844 P. 2d 1038 ( 1993) ( rough estimate of costs of training
                   Kisor, 68 Wn.

a new police dog insufficient to support amount of restitution ordered).

                                                                           3
No. 44307 -4 -II



the trailer door and the ATV were insufficient to support that portion of the restitution order; and

                                                                                      6
 2) therefore, these         amounts should not           have been included.


            We conclude that the trial court did not abuse its discretion in accepting Dawson' s testimony

about the values of his unrecovered property and the amount of damage to the garage locks and

doors. We accept the State' s concession that the evidence does not support the restitution award of


    500 for repairing the trailer door             or $   1, 500 for repairing the ATV.               We find no evidence in the


record before us that the trial court intended to order restitution in an amount above the amounts of


established damage and loss.7

            It also appears that the State and the trial court made a $ 500 scrivener' s error in totaling the

amounts        Dawson claimed in          restitution:      The    amounts     to   which      Dawson testified totaled $ 13, 770,

                                                                                          8
not    the $ 14, 270       stated   in the trial    court' s     restitution   order.         See Exhibit 1 (   itemizing victim' s

damages          and   losses, totaling $ 12, 770);       and VRP at 8 ( estimated cost of repairing damaged ATV,

    1, 500).     Accordingly, we remand to the trial court to correct the total amount of restitution that

Kelly            must       pay       Dawson,             namely $         11, 770,           which     represents     the    total




6
    The State       also notes      that RCW 9. 94A.753( 3)               allows the trial court to order restitution in an
amount up to double the amount of the victim' s established loss.

7 Thus, to the extent that the State implies that the restitution amounts are allowable so long as they
are less than the doubled amount RCW 9. 94A.753( 3) allows, we do not adopt this justification for
the unsupported damages.

8
    Kelly      asserts   that Dawson'     s   testimony     also added $       250 for repairing a boat that he recovered;
he    argues      that the   record contains " no          basis   whatsoever"        for this    claim.   Br. of Appellant at 8.
Kelly     misreads        the Dawson testified on direct about lost property ( a gas can and a
                                record:

pressure hose) that had been inside the boat, which property was listed on the State' s itemized
exhibit of Dawson' s losses at $ 250. Dawson did not testify about any repair cost related to the
boat itself;       nor    did he    seek restitution       for   such a claim.        See Exhibit 1 ( "     Yamaha Boat motor"
listed    as "   Damaged" but        no amount       listed). But see also VRP at 15 -16 ( Dawson acknowledged
on cross -examination that he did not have an estimate on the cost to repair the boat).
                                                                      4
No. 44307 -4 -II

                                I-




established values of the lost items and the damage to the garage locks and doors.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                      Hunt, J.
We concur:




                                                  5
