                                                                                  rLED
                                                                        COURT OF'APPEALS
                                                                         STATE OF        DIV I
                                                                                  WASHINGTON
                                                                        2017 NOV I 3 AN 10: 51




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                  )       No. 75609-5-1
                                          )
                     Respondent,          )
                                          )       DIVISION ONE
                     v.                   )
                                          )
RENO DUANE DOOLITTLE,                     )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: November 13, 2017
                                          )

       MANN, J. — Reno Doolittle appeals an award of restitution and argues that the

award was based on insufficient evidence to prove his victim's lost wages. We affirm.

                                           FACTS

       Doolittle pleaded guilty to fourth degree assault, a gross misdemeanor,1 for

attacking his girlfriend Elizabeth Clement by repeatedly punching her and breaking her

wrist and foot. The court imposed a suspended sentence and 12 months of probation.

As a condition of his probation, Doolittle was ordered to pay restitution in an amount to

be determined at a restitution hearing.

       At the first restitution hearing in July 2015, the State requested restitution totaling

$10,177.07. Of that amount, $97.39 was for the victim's out-of-pocket expenses, and


       1 RCW 9A.36.041(2).
No. 75609-5-1/2


$10,079.68 was to repay the state Crime Victim Compensation Program (CVCP)for

money it had paid to the victim for medical expenses and lost wages. The State

provided an "income-based claim" form in which they calculated the victim's average

monthly income, however the State did not provide any income records. The trial court

entered a restitution order for the full amount requested, including the $9,065.02 for lost

income. On appeal, this court reversed holding the lack of income records meant the

State had not provided sufficient reliable evidence to support the restitution amount.

       On remand, the State provided 33 checks from Windermere, the victim's real

estate agency, representing one year of commission from her real estate sales. The

State also presented a declaration from a CVCP claims manager explaining that she

calculated the victim's monthly loss by adding up the checks to get the annual income of

$154,378.78, then dividing that by 12, to get an average monthly wage of $12,864.90.

However, because the crime victims' compensation act, chapter 7.68 RCW,limits the

amount that can be paid in reimbursement for lost wages, the final amount was reduced

to $9,065.02.

       Doolittle again objected, arguing that the documents did not necessarily

demonstrate what actual wages were earned and lost. The court overruled the

objection and set restitution at $10,177.07 to repay the CVCP for money it paid to the

victim. This included the $9,065.02 in income loss due to the victim's injuries. Doolittle

appeals.

                                        ANALYSIS

       The sole issue in this case is whether the State's documentation was sufficient to

support the restitution order. We review restitution orders, when authorized by statute,

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for an abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828(1999).

"An abuse of discretion occurs when a decision is manifestly unreasonable or based on

untenable grounds or untenable reasons." In re Marriage of Katare, 175 Wn.2d 23, 35,

283 P.3d 546 (2012). A court's authority to impose restitution is wholly statutory. State

v. Deskins, 180 Wn.2d 68, 81, 322 P.3d 780(2014). For misdemeanors, a court may

order a defendant "to make restitution to any person or persons who may have suffered

loss or damage by reason of the commission of the crime in question" as a condition of

either a suspended sentence or probation. RCW 9.92.060(2); RCW 9.95.210(2)(b).2

Since Doolittle was given a suspended sentence and probation, RCW9.92.060(2) and

RCW 9.95.210(2) apply.3

        When disputed, the facts supporting a restitution award must be proved by a

preponderance of the evidence. Deskins, 180 Wn.2d at 82.

        While the claimed loss need not be established with specific accuracy, it
        must be supported by substantial credible evidence. Evidence supporting
        restitution is sufficient if it affords a reasonable basis for estimating loss
        and does not subject the trier of fact to mere speculation or conjecture.

Deskins, 180 Wn.2d at 82-83 (internal citations omitted). If the amount of damages is

established by "substantial credible evidence" at the restitution hearing, no abuse of

discretion will be found. State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51 (1992).




         2 The State mistakenly relies on the Sentencing Reform Act, RCW 9.94A.753, which states
"Mestitution shall be ordered whenever the offender is convicted of an offense which results in injury to
any person. . . unless extraordinary circumstances exist." RCW 9.94A.753(5). However, the Sentencing
Reform Act, RCW 9.94A, only applies to felonies. State v. Marks, 95 Wn. App. 537, 538, 977 P.2d 606
(1999). Doolittle was convicted of assault in the fourth degree, a gross misdemeanor.
         3 Although the trial court did not specify under which statute it was imposing restitution, we may
affirm the trial court on any basis supported by the record. Marks, 95 Wn. App. at 540.

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No. 75609-5-1/4


        In this case, the State sought restitution to recover expenses already paid to the

victim by the CVCP in accordance with RCW 9.95.210.4 RCW 9.95.210(3) provides,

"[t]he superior court shall order restitution in all cases where the victim is entitled to

benefits under the crime victims' compensation act, chapter 7.68 RCW." Under RCW

7.68.070(5), a victim that is found to have a temporary total disability that results in a

loss of wages is eligible for compensation for those losses. RCW 7.68.070(5). The

statute provides the victim's monthly wage,"shall be based upon employer wage

statements, employment security records, or documents reported to and certified by the

internal revenue service. Monthly wages must be determined using the actual

documented monthly wage or averaging the total wages earned for up to twelve

successive calendar months preceding the injury." RCW 7.68.070(5)(emphasis

added).

        Doolittle maintains that the checks in this case were insufficient to prove the

victim's wages because the commission checks were not a set wage and thus

subjected "the trier of fact to mere speculation or conjecture." Doolittle analogizes this

case to State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038(1993). In Kisor, the court

found there was insufficient evidence to support the order of restitution because it was

based solely on an affidavit that was "nothing more than a rough estimate of the costs

associated with purchasing a new animal and training it. . .[with] no indication of where

[the declarant] obtained the figures as to the cost of purchasing the animal and training




        4 The CVCP had already determined Clement was a victim under RCW 7.68. RCW 7.68.020
defines "victim" as "a person who suffers bodily injury or death as a proximate result of a criminal act of
another person."
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No. 75609-5-1/5


it and the dog's handler." Kisor, 68 Wn. App. at 620. We do not have such limited

evidence here.

       Consistent with RCW 7.68.070(5), the State provided 33 checks from the victim's

employer representing one year of commission from her real-estate sales. Along with

the checks, the State presented a declaration from a CVCP claims manager explaining

how she calculated the victim's monthly loss by adding up the checks then averaging

the sum of those checks to determine her monthly wage. Because RCW 7.68.070(5)

allows the victim's wage to be determined by "averaging the total wages earned for up

to twelve successive calendar months preceding the injury," the court may also rely on

such a calculation. Doolittle's argument that only regular hourly wages can be proven

under the statute would, in effect, prohibit lost wages for any victim with a nontraditional

pay schedule, such as on commission or contingency. Such an interpretation would be

contrary to the intent of the statute.

       To implement legislative intent, we must interpret the restitutions statutes broadly

to allow restitution. State v. Thomas, 138 Wn. App. 78, 82, 155 P.3d 998(2007).

Although the victim did not have a set hourly or monthly wage,"we will not give the

statutes an overly technical construction which would permit the defendant to escape

from just punishment." State v. Davison, 116 Wn.2d 917, 922, 809 P.2d 1374 (1991).

The victim's commission checks from the previous calendar year provided the trial court

with a reasonable basis for determining the victim's average monthly wage and

provided sufficient evidence to support the award of restitution. The trial court did not

abuse its discretion.



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No. 75609-5-1/6


      We affirm.




WE CONCUR:




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