                                                                                                         CIRRI.    F APPEALS

                                                                                                    2014 al 1 OE APB 8: 40
      IN THE COURT OF APPEALS OF THE STATE OF WASHIi                                                                r   i 1    ON
                                                                                                                              yO




                                                    DIVISION II

STATE OF WASHINGTON,                                                                  No. 43578 -1 - II


                                Respondent,                                       Consolidated with:


         v.                                                                           No. 44148 -9 -II

SCOTT ROSS NEWCOMB,                                                          UNPUBLISHED OPINION


                                Appellant.




         LEE, J. —    Scott Ross Newcomb appeals his conviction of first degree malicious mischief

and   the   related restitution        award.    Newcomb argues that the trial court violated his right to


confrontation by admitting photographs taken by a non -
                                                      testifying officer during his trial and by

considering estimates prepared by non -
                                      testifying contractors during his restitution hearing.

Newcomb also argues that the trial court erred in calculating the amount of restitution imposed.

Because__
        neither_the photographs_nor_the estimates triggered_Newcomb' s_ confrontation_rights,_


and because the trial court did not abuse its discretion by imposing restitution of almost double

the amount of the victim' s loss, we affirm.


                                                              FACTS


         In 2005,    Timothy        Kredlo bought property in Pacific            County. To access his property,

Kredlo      needed   to    use    an   easement    that   crossed     Newcomb'    s   adjoining property.         Kredlo' s


predecessors in interest sued Newcomb and his mother to ensure that they did not interfere with

the   easement, and       the   superior court   issued   a   decree to   prevent such   interference.
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           As a condition of Kredlo' s purchase, Daniel Bayne agreed to improve the existing road

on   the   easement.      Bayne built a gravel road on the easement in July 2006, and charged Kredlo

    12, 000 for the work.         After the road' s completion, Kredlo encountered Newcomb, who told


Kredlo that he had bought a " sour lemon" because there was no vehicular access to his property.

Report     of   Proceedings ( RP)     at   200; Clerk'   s   Papers ( CP)   at   24. When Kredlo pointed out that he


had a recorded easement, Newcomb disputed its legality as well as the validity of the court order

barring    his interference       with   the   easement.     He told Kredlo that he wanted to abandon the road


and return the easement to its natural condition.


           On October 13, 2006, Kredlo returned to the property and saw Newcomb on a payloader

scraping     gravel   from the     road.    Kredlo observed that most of the gravel had been scraped away

from the     road.    He called the sheriff' s office, and Deputy Ryan Pearson came out to observe the
                                                                                                     Souvenierl

damage that        day.    Pearson did      not   have   a camera and asked         Deputy   Robin                to take



photographs of the easement road on his way to work the following day.

           On October 16, Kredlo returned to the property and found that the remaining gravel on

the easement road had been dug down and churned to a depth of two to three feet, and that three

large   stumps     had been      placed where      the   road   had been.    Kredlo also saw tire tracks leaving the

road and        leading   to   a gravel pile on    Newcomb'       s   property.   The easement road was impassable


for vehicular traffic.




1
    Deputy Souvenier' s name is spelled two different ways in the record, Souvenier and Souvenir.
For purposes of this opinion we use the Souvenier spelling.



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          The     State      charged     Newcomb            with    first . degree   malicious    mischief.    Newcomb


successfully moved to dismiss the resulting charge of first degree malicious mischief on the

ground    that   a person cannot        maliciously damage his           own    property. The State appealed, and this


court reversed and remanded               for trial.        State v. Newcomb, 160 Wn. App. 184, 193, 246 P. 3d

1286, review denied, 172 Wn.2d 1005 ( 2011).


          On     remand,       Newcomb      agreed     to    a   bench trial.   The State introduced the photographs


through    the     testimony       of   Deputy     Pearson, who testified that the photographs accurately


represented      the   easement when        he   saw   it   on   October 13, 2006. Kredlo testified to the facts cited


above and        Bayne testified that he         gave       Kredlo    an estimate    of about $   7000 to repair the road


shortly   after   it   was     damaged.    The trial court admitted his 2006 estimate, which set the repair


cost at $ 7263. 56.


          The trial court found Newcomb guilty as charged and imposed a 45 -day sentence.

During the restitution hearing, the State submitted four additional repair estimates that ranged

from $9,378. 60        to $ 21, 484. 54.     Kredlo also requested reimbursement for a travel trailer on his


property that he        had    purchased    for $ 3500.          The trailer was destroyed by mold because the road

damage prevented Kredlo from getting power to it.

          The trial    court ordered      Newcomb to pay $ 13, 000 based on this explanation:


          I' m    imposing $      13, 000. 00.       I' m approaching it from the, I' m going to say
           7, 500. 00 figure to         repair and    then I' m not quite doubling that. I' m going to go

          up to $13, 000. 00 total so either way you cut it, it covers the expenses, but I' m not
          making a finding on the trailer specifically. There' s too much grey area there.
          But I am imposing a doubling up to $ 13, 000. 00 dollars which in effect awards the
          same amount of money as if I did consider the trailer.

RP ( Oct. 5, 2012)        at   16; Suppl. CP at 1.
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              Newcomb appeals his conviction and the restitution award.

                                                              ANALYSIS


A.             RIGHT TO CONFRONTATION


              Newcomb argues that the trial court erred in admitting evidence that violated his

confrontation rights during both his trial and his restitution hearing. Newcomb did not challenge

the photographs or the estimates on this basis below, but we may address this issue for the first

time on appeal if it constitutes a manifest error affecting a constitutional right under RAP

2. 5(   a)(   3).    State       v.   Kronich, 160 Wn.2d 893, 899 -01, 161 P. 3d 982 ( 2007),    overruled on other




grounds;            State   v.   Jasper, 174 Wn.2d 96, 116, 271 P. 3d 876 ( 2012). To satisfy RAP 2. 5(     a)(   3),   an




appellant first must identify a constitutional error and then show how the alleged error affected

his rights at trial. State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009).

               1.    Photographs


               Newcomb argues initially that the photographs of the road damage were testimonial

statements made by a non-testifying witness that were admitted in violation of his Sixth

Amendment right to confrontation. We disagree.

               The Sixth Amendment' s confrontation clause gives an accused the right to confront the


witnesses against                 him. State     v.   Jasper, 174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012).   The central


function of this right is to protect individuals from the use of ex parte statements as evidence

against         them in      criminal       trials.   Crawford v. Washington, 541 U.S. 36, 50 -51, 124 S. Ct. 1354,


 158 L. Ed. 2d 177 ( 2004).                     The confrontation clause bars the admission of testimonial hearsay




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statements of a witness who does not appear at trial, unless the witness is unavailable and the

defendant had a prior opportunity for cross -examination. Crawford, 541 U.S. at 53 -54, 68.

         Newcomb does not cite, nor could we find, any authority that directly supports his

argument       that   photographs       are   testimonial        statements.      Instead, courts regard photographs as


demonstrative         evidence,      depicting      what   the   camera sees.      People v. Cooper, 148 Cal. App. 4th

731, 746, 56 Cal. Rptr. 3d 6 ( 2007),                 abrogated on other grounds by People v. Archuleta, 225

Cal.   App.    4th 527, 170 Cal. Rptr. 3d 361,               review     filed (May 19, 2014); State v. Newman, 4 Wn.


App.    588, 593, 484 P. 2d 473,            review    denied, 79 Wn.2d 1004 ( 1971).                 They are not statements,

and    they   are not   hearsay. Cooper, 148 Cal. App. 4th at 746; State v. Iverson, 126 Wn. App. 329,

340, 108 P. 3d 799 ( 2005).              Consequently, their admission in the absence of the photographer

does    not    trigger    confrontation: clause             concerns.       See   Cooper,      148    Cal.   App.   4th at 746


 confrontation clause did not preclude admission of part of videotape depicting condition of

victim' s     residence);      see   also   Sevin     v.   Jefferson, 621 F.        Supp. 2d       372, 383 ( E.D. La. 2009)


 photograph of vehicle taken by traffic camera was not testimonial statement that implicated

confrontation clause);          United States        v.    Beach, 196 F.       App' x.   205, 209 ( 4th Cir.) ( admission    of




photographs of        missing     evidence     did   not violate confrontation clause),             cert. denied, 549 U. S. 983


 2006); Herrera          v.   State, 367 S. W.3d 762, 773 ( Tex.                App.     2012) (   autopsy photograph is not

testimonial       statement);        People    v.    Myers, 87 A.D. 3d 826, 829, 928 N.Y.S. 2d 407 ( 2011)


 photographs depicting victim' s injuries are demonstrative rather than testimonial evidence);

State   v.    Tillman, 289 S. W. 3d 282,. 294 -95 ( Mo.                 App.   2009) (   photographs of victim' s body are

not testimonial).




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           Here, the photographs themselves did not constitute testimonial statements; therefore,

their   admission      in the    absence of      the   photographer was not error.          The proper foundation for


photographs requires only that some witness, not necessarily the photographer, be able to give

some indication as to when, where, and under what circumstances the photograph was taken, and


that the   photograph      accurately       portrays   the   subject    illustrated. Newman, 4 Wn.     App.   at   593.   We


reject this claim of constitutional error.


           2.    Repair Estimates


           Newcomb argues next that the trial court violated his due process right to confront


adverse witnesses under the Fourteenth Amendment by considering unsworn and unsigned

estimates prepared by non -
                          testifying contractors during the restitution hearing. We disagree.

           In making this argument, Newcomb tacitly concedes that his Sixth Amendment right to

confrontation       does   not extend       to   restitution   hearings.     See State v. Abd-Rahmaan, 154 Wn.2d

280, 288, 111 P. 3d 1157 ( 2005) ( confrontation clause of Sixth Amendment .applies to criminal


prosecutions        and not     to   postconviction proceedings);          see also United States v. Loreng, 956 F.

Supp. 2d        213, 222 n. 4 ( D. C. Dist. 2013) ( confrontation clause protections do not extend to


restitution proceedings);            United States v. Faxon, 689 F. Supp. 2d 1344, 1356 ( S. D. Fla. 2010)

 confrontation clause           does   not prohibit offer of         hearsay   at restitution   hearing). As the Loreng

court explained, when the guilt of the accused has been properly established, the sentencing

judge is not restricted to evidence admitted during trial in determining the punishment to impose,

but     may       consider "`    responsible       unsworn       or `    out -
                                                                             of court'
                                                                                -        information    relative     to   the


circumstances        of   the   crime. "'
                                             956 F. Supp. 2d at 222 n.4 ( quoting Williams v. Oklahoma, 358




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U. S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 ( 1959)).                   Nothing in Crawford alters the pre-

Crawford law that the admission of hearsay testimony at sentencing does not violate

confrontation rights.     Loreng, 956 F. Supp.2d at 222 n.4 ( citing United States v. Bras, 483 F.3d

103, 109 ( D. C. Cir. 2007)).

         Newcomb argues nonetheless that defendants have a due process right to confront


adverse witnesses during a restitution hearing unless the court finds good cause not to allow the

confrontation.       As support, he cites the Abd-Rahmaan decision, which explained that this due

process right applies to parole revocation hearings because parole revocation involves the

potential   deprivation   of a conditional      liberty.   154 Wn.2d at 288 -89.


         However,       restitution     involves    no     potential    loss    of   liberty, and due process is

 substantially    relaxed"   at a restitution     hearing. State v. Fambrough, 66 Wn. App. 223, 226 -27,

831 P. 2d 789 ( 1992).         To satisfy due process during a restitution hearing, the defendant must

have an opportunity to refute the evidence presented, and the evidence must be reliable. State v.

Pollard, 66 Wn. App. 779, 784- 85, 834P. 2d 51,                        review   denied, 120 Wn.2d 1015 ( 1992).


Although the rules of evidence do not apply at restitution hearings, the evidence presented must

be   sufficient   to support   a    finding   of restitution   in the   amount ordered.    State v. Kisor, 68 Wn.


App. 610,     620, 844 P. 2d 1038,      review    denied, 121 Wn. 2d 1023 ( 1993);        Pollard, 66 Wn. App. at

784.


         Newcomb had ample opportunity to refute the written estimates submitted, all of which

were   from   companies      that   repair roads.    Furthermore, the trial court based its restitution award


on the 2006 estimate provided by Daniel Bayne, who testified and was cross -examined during




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trial.   We reject Newcomb' s claim of constitutional error based on either due process or

confrontation grounds.



B. RESTITUTION AWARD


         Newcomb raises two additional challenges to the restitution award. He first contends that


the trial court exceeded its statutory authority by awarding Kredlo an amount of restitution that

was almost      double the    amount established at     the   restitution   hearing.   He then contends that the


trial court     abused   its discretion   by   ordering $   13, 000 in restitution after Kredlo suffered only

 7, 500 in damages.


          Newcomb argues that his first claim must be reviewed de novo because it involves a


question of statutory interpretation. Sound Infiniti, Inc. v. Snyder, 169 Wn.2d 199, 206, 237 P. 3d

241 ( 2010). The statute at issue is RCW 9. 94A.753, which provides in pertinent part as follows:


           R] estitution ordered by a court pursuant to a criminal conviction shall be based
          on easily ascertainable damages for injury to or loss of property, actual expenses
          incurred for treatment for injury to persons, and lost wages resulting from injury. .
               The amount of restitution shall not exceed double the amount of the offender' s
          gain or the victim' s loss from the commission of the crime.


RCW 9. 94A.753( 3).

          Newcomb argues that the plain language of this provision prohibits a court from simply

doubling the restitution amount and, thereby, granting the victim a windfall. See Seashore Villa

Ass 'n   v.   Huggland   Family   Ltd. P' ship, 163 Wn.       App.   531, 538 -39, 260 P. 3d 906 ( 2011) (   statute




must be construed according to its plain language if that language is subject to only one

interpretation),     review   denied, 173 Wn.2d 1036 ( 2012).               Newcomb argues that the doubling

language in RCW 9. 94A. 753( 3)            applies   only     when    the   court   compensates   third   parties   in
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addition      to the   victim, so    long   as   the total   award     does   not exceed   double the   victim' s   loss. See


State   v.    Davison, 116 Wn.2d 917, 921 -22, 809 P. 2d 1374 ( 1991) (                     interpreting " victim" within

meaning of restitution statute to include city that paid wages to assault victim while he could not

work).



             The   plain   language    of   RCW 9. 94A. 753( 3)          does not support Newcomb' s interpretation


because it         makes     no   reference   to third -
                                                       party recovery.            Moreover, the Washington Supreme


Court has interpreted the language of RCW 9. 94A.753( 3) without the restriction that Newcomb

asserts:



             The plain language of the restitution statute allows the trial judge to order
             restitution ranging from zero in extraordinary circumstances, up to double the
             offender' s gain or      the   victim' s   loss....       We do not engage in overly technical
             construction that would permit the defendant to escape from just punishment.
             The legislature intended " to grant broad powers of restitution" to the trial court.


State   v.   Tobin, 161 Wn.2d 517, 524, 166 P. 3d 1167 ( 2007) (                   quoting Davison, 116 Wn.2d at 920,

922).


             As the Supreme Court has further explained, restitution is allowed only for losses that are

causally connected to the crimes charged, and a causal connection exists if, but for the charged

crime,       the   victim would not     have incurred the loss.               State v. Griffith, 164 Wn.2d 960, 965 -66,


195 P. 3d 506 ( 2008).               Once the amount of the victim' s loss is established, the court has


discretion to        order   restitution up      to double that    amount.       Griffith, 164 Wn. 2d   at   966.   We reject


Newcomb' s argument that the trial court exceeded its statutory authority by awarding almost

double the amount of Kredlo' s loss.




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         Moreover,     we see no abuse of           discretion in the trial     court' s   decision to   order $   13, 000 in


restitution.   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.         Griffith,


164 Wn.2d at 965.


         The evidence submitted at Newcomb' s restitution hearing provided a reasonable basis for

estimating Kredlo'     s   loss.    The trial court' s resulting order was based not on speculation but on

five repair estimates, the lowest of which was from a contractor who testified at Newcomb' s trial

and   the highest    of which      far   exceeded   the   amount of restitution ordered.         The trial court did not

abuse its discretion by ordering Newcomb to pay restitution of almost double the amount of the

lowest repair estimate.


         Affirmed.


         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.




We concur:




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