                                                                FILED
                                                            DECEMBER 14, 2017
                                                         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. 34624-2-111
                                             )
                      Respondent,            )
                                             )
      V.                                     )         UNPUBLISHED OPINION
                                             )
TERI LOUISE TROWER,                          )
                                             )
                      Appellant.             )

      PENNELL, J. -A jury convicted Teri Louise Trower of possessing a stolen motor

vehicle. At sentencing, Ms. Trower received a term of 12 months' incarceration, and was

assessed $2,500 in restitution and $1,250 in legal financial obligations (LFOs ). We

affirm Ms. Trower's conviction and restitution order, but we remand for resentencing so

that the court may reconsider Ms. Trower' s offender score and strike $500 in

discretionary LFOs.
No. 34624-2-111
State v. Trower


                                          FACTS

       The investigation of Ms. Trower's case began when law enforcement received a

report of a missing 1983 Toyota pickup. In addition to making a report to the police, the

victim posted information about his missing truck on Facebook.

       The victim's Facebook post generated a response from a witness who indicated he

had seen the Toyota in Chewelah, Washington the day after it was reported stolen. The

witness observed the Toyota on top of a flatbed trailer being towed by a Chevrolet pickup

truck. The witness noted the license plate of the Chevrolet, took a picture, and shared the

information with law enforcement.

       On the same day as the Facebook witness's report, a state trooper also observed the

suspect vehicles in Chewelah. Although the trooper was not aware of the stolen vehicle

report, he made contact with the Chevrolet at a gas station because he had learned from

dispatch that the registered owner of the trailer (Teri Trower) had a suspended license. 1

The trooper discovered the driver of the Chevrolet was an individual named Jack Essman.

Ms. Trower was with Mr. Essman as a passenger. Because Ms. Trower was not driving,

the trooper did not take any further action. Upon later learning the Chevrolet and trailer

were associated with a stolen vehicle, the trooper tried to regain contact. This effort was


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           The jury was not informed Ms. Trower had a suspended license.

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No. 34624-2-III
State v. Trower


unsuccessful, but the trooper was able to obtain surveillance video from the Chewelah gas

station that contained footage of Mr. Essman and Ms. Trower.

       In addition to the video gathered by the trooper in Chewelah, detectives collected

surveillance photos from other area gas stations. They were able to find photos depicting

the suspect Chevrolet and trailer, loaded with an older model Toyota. The victim

identified the Toyota depicted in the photos as the one taken from his residence.

       Less than a week after the initial stolen vehicle report, law enforcement

interviewed Ms. Trower. Ms. Trower admitted she and Mr. Essman had been towing a

Toyota truck with her trailer. However, she claimed it was her own 1992 Toyota truck,

not a stolen vehicle. Ms. Trower said Mr. Essman had come to her home in Elk,

Washington to help her load her Toyota onto the trailer. The pair then traveled to Stevens

County to a friend's home to get the Toyota fixed. When the friend was not available,

Ms. Trower and Mr. Essman returned home with the truck and placed it in her storage

shed. Ms. Trower stated that when she and Mr. Essman were heading back home they

stopped at a gas station in Loon Lake. During the interview, Ms. Trower gave the

detective a copy of a vehicle title to a 1992 Toyota pickup truck.

       After the interview, the detective went to the gas station at Loon Lake to obtain its

surveillance footage. The footage showed the trailer and the Chevrolet truck, but contrary



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No. 34624-2-111
State v. Trower


to Ms. Trower's statement, the trailer was empty.

       A week after the initial interview with Ms. Trower, law enforcement went to Ms.

Trower's home to look at the Toyota she claimed had been transported to and from

Stevens County. Ms. Trower showed the officers a Toyota in her storage shed. Law

enforcement noted the Toyota in the shed was not the same as the one depicted in the

surveillance photos. The Toyota located in the shed was a newer model than the stolen

vehicle and it had recently been painted the same color as the stolen Toyota.

       Ms. Trower was charged with one count of possessing a stolen motor vehicle. She

was found guilty after a jury trial. At sentencing, the State asserted Ms. Trower had three

prior felony convictions and intervening misdemeanors, but did not present evidence of

the prior convictions. Ms. Trower did not stipulate to the existence of these convictions.

The trial court sentenced Ms. Trower to twelve months' incarceration based on an

offender score of three. The trial court also imposed $1,250 in LFOs, including a

$500 discretionary defense attorney fee.

       After entering the judgment and sentence, the court held an evidentiary hearing

and imposed restitution in the amount of $5,000. The trial court found the value of the

stolen vehicle was $2,500 and doubled that amount in its discretion. Ms. Trower appeals.




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      No. 34624-2-III
      State v. Trower


                                               ANALYSIS

      Sufficiency of the evidence

             Evidence is sufficient to support a conviction if, viewed in the light most favorable

      to the State, it permits any rational trier of fact to find the essential elements of the crime

      beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010).


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      A claim of insufficiency admits the truth of the State's evidence and all reasonable

      inferences. Id. Circumstantial evidence and direct evidence are equally reliable. Id.

      We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,

      and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75,

      83 P.3d 970 (2004).

             This case involves constructive, rather than actual, possession of stolen property.

      "Constructive possession is established by examining the totality of the situation and

      determining ifthere is substantial evidence [tending to establish circumstances] from

      which a jury can reasonably infer the defendant had dominion and control over the item."

      State v. Jeffrey, 77 Wn. App. 222, 227, 889 P.2d 956 (1995). Dominion and control need

      not be exclusive to establish constructive possession, but close proximity alone is

      insufficient; other facts must enable the trier of fact to infer dominion and control.

      State v. George, 146 Wn. App. 906,920, 193 P.3d.693 (2008).


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No. 34624-2-111
State v. Trower


        The evidence at trial was readily sufficient to prove constructive possession. Ms.

Trower was not merely a passenger in a vehicle associated with stolen property. By her

own words, Ms. Trower was the person primarily responsible for the Toyota truck that

had been towed across Stevens County. Granted, Ms. Trower claimed the Toyota was her

truck, not the stolen one-a statement obviously rejected by the jury as false. But Ms.

Trower's words were still significant. They indicated guilty knowledge and placed Ms.

Trower squarely in control of the suspect vehicle. By admitting responsibility for the

towed vehicle and then attempting to disguise her Toyota to resemble the stolen one, Ms.

Trower made clear that she was no hapless bystander. The jury had ample evidence to

justify its verdict.

Restitution

        Related to her sufficiency argument, Ms. Trower contends the sentencing court

lacked authority to impose restitution for the value of the stolen Toyota. To the extent

Ms. Trower argues the evidence is insufficient to prove her involvement in the offense

conduct, we reject her claims, as noted above. But Ms. Trower also argues that because

she was only convicted of possessing the stolen truck, as opposed to theft, the trial court

was without authority to impose restitution for the value of the vehicle. As explained

below, we reject this argument as well.


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     No. 34624-2-111
     State v. Trower


            Restitution must be ordered for all losses "causually connected" to the defendant's

     crime of conviction. State v. Kinneman, 155 Wn.2d 272, 286, 119 P.3d 350 (2005).

     "Losses are causally connected if, but for the charged crime, the victim would not have

     incurred the loss." State v. Griffith, 164 Wn.2d 960, 966, 195 P.3d 506 (2008).

            Restitution losses attributable to a conviction for unlawfully possessing stolen

     property are not always the same as those that would be attributable to the underlying

     theft. For example, if a defendant is convicted of possessing only a portion of a victim's

     stolen property, then restitution must be limited to that portion. Id. at 967-68. Similarly,

     if the condition of the victim's property deteriorated after being stolen, restitution must be

1    limited to the value of the property at the time of the defendant's possession. State v.


j    Acevedo, 159 Wn. App. 221, 230-31, 248 P.3d 526 (2011).

j           The fact that a defendant is convicted of possession of stolen property instead of



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     theft does not automatically mean restitution must be less than a victim's full losses.

     Instead, the applicable amount of restitution must be determined by the sentencing judge

I    on a case-by-case basis, using a preponderance of the evidence standard. Griffith,


l    164 Wn.2d at 965-66.


II
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     No. 34624-2-111
     State v. Trower


            Under the facts here, Ms. Trower's conviction warranted restitution for the entire

     value of the stolen Toyota. The value set by the court was based on the truck's condition

     at the time of Ms. Trower's possession. 2 In addition, the facts of the case showed Ms.

     Trower committed the crime of unlawfully possessing the Toyota in a manner that

     facilitated the truck's permanent disappearance. In other words, but for Ms. Trower's

     crime of conviction, the victim would not have suffered the lost value of his truck. Full

     restitution was warranted.

     Offender score and discretionary LFOs

           The parties agree on two sentencing errors: (1) the State failed to adequately prove
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     Ms. Trower's criminal history, and (2) the court improperly imposed a $500 discretionary

     LFO without determining Ms. Trower's ability to pay. We accept the State's concessions
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J    and remand for resentencing. State v. Hunley, 175 Wn.2d 901, 915-16, 287 P.3d 584

1    (2012). We further accept the State's concession that, given Ms. Trower's limited
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     financial resources, discretionary LFOs should not be imposed.
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I          2 Although there was conflicting testimony over whether the Toyota was missing

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     some after-market improvements, such as a roll bar, this discrepancy did not impact the
     sentencing court's restitution calculation. The court calculated restitution based on the
     Kelly Blue Book value of a Toyota pickup truck similar to the one illegally possessed by
     Ms. Trower. The court declined the victim's request to add after-market improvements to
     the value of the vehicle.

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     No. 34624-2-III
     State v. Trower




l                                         CONCLUSION

            Ms. Trower's conviction and order of restitution are affirmed. This matter is

     remanded for resentencing to strike the $500 discretionary LFO and allow the State to

     present evidence substantiating Ms. Trower's offender score. Ms. Trower's request to

     deny appellate costs is granted.

            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.


                                               Pennell, J.
     WE CONCUR:




                                                      dZ~w.~,if-.
                                               Siddoway, J.

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