       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )      DIVISION ONE
              Respondent,                  )
                                           )      No. 68237-7-1
         v.                                )
                                           )
ALICEA DEEANN MARTINI,                     )      UNPUBLISHED OPINION
                                           )

_________________________ )
        Appellant.                         )      FILED: March 11, 2013


       DWYER, J. -Alicea Martini pleaded guilty to one count of organized retail

theft in the second degree stemming from an incident in which she shoplifted

property from two retail stores. She appeals from a subsequent order of

restitution, contending that the trial court erred by relying upon hearsay

statements in determining the amount of restitution owed. However, the rules of

evidence do not apply at a restitution hearing. Instead, where evidence is

comprised of hearsay statements, such evidence is admissible so long as it

provides a sufficient basis for rebuttal. Here, the State's evidence contained

sufficient details to elevate the proof beyond the realm of conjecture and

speculation and to provide the defense with a basis for rebuttal. The trial court

did not err by relying on this evidence in setting the restitution amount.

Accordingly, we affirm.
No. 68237-7-1/2




       On the evening of May 17, 2009, Macy's security personnel observed

Alicea Martini and a second woman concealing articles of clothing within a purse

at the rear of the store. The security personnel watched as the two women

walked to the front of the store, passing by the checkout registers and exiting

without paying for the merchandise. When a Macy's security officer identified

himself to the women outside the store, Martini and her companion dropped the

purse and attempted to flee. Both women, however, were quickly apprehended

and escorted back to the Macy's security office.

      Several stolen items were recovered from the purse. In addition to the

merchandise taken from Macy's, the purse also contained several articles of

clothing belonging to Hollister, a retailer located within the same complex. The

clothing from both stores was torn where the security tags had been forcibly

removed. The value of the items stolen from Hollister was $394.50 and the value

of the items stolen from Macy's was $251.99.

      Officers from the Lynnwood Police Department thereafter arrived at the

scene, and Martini and her accomplice were arrested and taken into custody.

During an inventory search, a broken syringe was discovered within the purse.

The tip of the broken needle could not be located.

      Martini was thereafter charged with one count of organized retail theft in

the second degree. She pleaded guilty to this charge on March 17, 2011. The

State agreed that it would not file additional charges based upon the incident.

However, as a condition of this agreement, Martini agreed to pay restitution to

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Macy's and to Hollister. 1 Martini further agreed that, in setting the amount of

restitution, the trial court could consider the facts set forth in the affidavit of

probable cause.

       A restitution hearing was held on December 20, 2011. At the hearing, the

State presented the affidavit of probable cause, which stated that the value of the

stolen merchandise was $646.49 and that the clothing taken by Martini from

Hollister had been damaged when the security tags had been removed. The

arresting officer's report was also presented by the State. This report indicated

that the clothing taken from Macy's had also been damaged during the theft.

       The State further presented the affidavit of Diana Kinnebrew, the legal

assistant responsible for obtaining restitution information for the Snohomish

County Prosecutor's Office. In her affidavit, Kinnebrew, who had spoken with a

security department manager at Hollister, described the policy of the stores

regarding disposition of merchandise recovered after a crime:

       The store contracts with a disposal company to dispose or recycle
       the products. The manufacturers require all stores to comply with
       these restrictions, so that inferior merchandise is not circulated to
       the public. Even store employees are restricted from buying or
       using any of the merchandise .... [A]ny merchandise, whether it is
       electronics, clothing, or even hardware, that has left the store or
       been compromised in any way cannot be sold by the store. The
       store must pay additional monies to ship the carton of merchandise
       to the contracted disposal company once a week. The store does
       not profit from recovered merchandise in any form.

        Based upon this evidence, the trial court determined the loss to Hollister


       1
           Martini was sentenced to 12 months plus one day of confinement pursuant to the drug
offender sentencing alternative to be served concurrent with another charge. She assigns no
error to this aspect of her judgment and sentence.

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was $394.50 and that the loss to Macy's was $251.99. In addition, the court

noted, Martini's guilty plea-stating that she had wrongfully obtained more than

$250 from Macy's-further supported the conclusion that the claimed loss of

$251.99 had been established.

       The trial court thereafter entered an order setting the total amount of

restitution at $646.49.

       Martini appeals.

                                           II

       Martini's sole challenge is to the trial court's order of restitution. Martini

contends that the affidavit of Kinnebrew, the restitution legal assistant, was not

sufficiently reliable to be admitted at the restitution hearing. In the absence of

this document, Martini asserts, the actual losses of Hollister and Macy's could not

be accurately ascertained and, accordingly, under her legal theory, the amount of

restitution was not properly proved. We disagree.

       "Restitution shall be ordered whenever the offender is convicted of an

offense which results in ... damage to or loss of property." RCW 9.94A.753(5).

Moreover, where the prosecution recommends it and the offender agrees, the

offender must also pay restitution to a victim of an offense that is not prosecuted

pursuant to a plea agreement. RCW 9.94A.753(5).

       The trial court has discretion to determine the amount of restitution. State

v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). Such a determination

will be overturned only for an abuse of discretion. Davison, 116 Wn.2d at 919.

The court abuses its discretion when the restitution decision is '"manifestly

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unreasonable, or exercised on untenable grounds, or for untenable reasons."'

State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999) (internal

quotation marks omitted) (quoting State v. Cunningham, 96 Wn.2d 31, 34, 633

P.2d 886 (1981)).

       "If a defendant disputes the restitution amount, the State must prove the

damages by a preponderance of the evidence." State v. Griffith, 164 Wn.2d 960,

965, 195 P.3d 506 (2008). The amount of restitution must be based on "easily

ascertainable" damages. RCW 9.94A.753(3). While certainty of damages need

not be proved with specific accuracy, the evidence must be sufficient to provide a

reasonable basis for estimating loss. State v. Pollard, 66 Wn. App. 779, 785, 834

P.2d 51 (1992). Evidence that subjects the trier of fact to speculation or

conjecture is insufficient. Pollard, 66 Wn. App. at 785.

      The rules of evidence do not apply at restitution hearings. State v. Kisor,

68 Wn. App. 610, 620, 844 P.2d 1038 (1993). Nevertheless, due process

requires that the defendant have an opportunity to refute the evidence presented

and that the evidence be reasonably reliable. Pollard, 66 Wn. App. at 785.

"When the evidence is comprised of hearsay statements, the degree of

corroboration required by due process is not proof of the truth of the hearsay

statements 'beyond a reasonable doubt,' but rather, proof which gives the

defendant a sufficient basis for rebuttal." Kisor, 68 Wn. App. at 620.

       Here, Martini contends that, because the items that she stole were

subsequently returned to Macy's and Hollister stores, it is possible that the stores



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No. 68237-7-1/6


sold the property and thus recovered their losses? This possibility, of course, is

foreclosed if it is true, as the State's evidence at the restitution hearing indicated,

that the manufactures of such merchandise require that all stores "dispose or

recycle [such] products ... so that inferior merchandise is not circulated to the

public" and that "[t]he store does not profit from recovered merchandise in any

form." Martini, however, asserts that this information, obtained by the restitution

legal assistant from a store security manager, was not sufficiently reliable to be

admitted at the restitution hearing.

        Martini is incorrect. As noted above, the rules of evidence do not apply

during a restitution hearing and, where evidence consists of hearsay statements,

it is properly admitted so long as it provides a sufficient basis for the offender to

refute it. Kisor, 68 Wn. App. at 620. In this case, the State's evidence set forth

specific facts and named the particular sources for those facts. The affidavit

provided sufficient details to elevate the proof beyond the realm of conjecture

and speculation and to provide the defense a basis for rebuttal. Martini had the

opportunity to challenge the veracity of the State's evidence by producing

evidence of a contrary store policy or by subpoenaing the store security manager

to testify. She did neither. Instead, she argued only that the trial court was not

entitled to rely upon such evidence at all. 3 However, because the State's


        2
           Martini concedes, as she must, that the retail value of the property taken from Hollister
and Macy's was $646.49. This fact was set forth in the affidavit of probable cause, a document
upon which, Martini agreed in her plea agreement, the trial court was entitled to rely in
determining the amount of restitution.
         3
           Martini relies on this court's 1992 decision in Pollard for the proposition that "double
hearsay" is never admissible in a restitution hearing. 66 Wn. App. at 786. Critical to our decision
in that case, however, was that the hearsay presented did not establish the amount of the victims'

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No. 68237-7-1/7


evidence provided a sufficient basis for rebuttal, the trial court did not err by

relying on this evidence in calculating the amount of restitution. 4

         Because the State presented sufficient evidence to support the restitution

order, the trial court did not abuse its discretion by determining the restitution

award.

         Affirmed.



                                                                              ...

We concur:




losses. Pollard, 66 Wn. App. at 786-87 ("T]he mere fact that [Pollard] withdrew funds from his
account does not in itself establish the loss on the part of the bank(s). The question is whether
the instruments were paid by the drawee(s) on presentment."). Martini does not contend, nor
could she, that the evidence presented in her case does not establish the losses of the Macy's
and Hollister stores.
          4
            Evidence that the stolen property was damaged during the theft provides an additional
basis for the trial court's conclusion that the theft resulted in a total loss to Macy's and Hollister.
Both the police report and the affidavit of probable cause indicated that the stolen clothing had
been torn when Martini removed the security tags. It would, of course, be entirely reasonable for
the trial court to infer that the damaged clothing could not thereafter be sold. Indeed, the
presence of a broken syringe within the same purse in which Martini had concealed the stolen
items further supports the trial court's conclusion that this merchandise was now without value to
the stores.



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