State Of Washington, Respondent V. Brian Adrian Sawyer, Appellant

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COURTCr Aiv'cALS 01'/
31ATE CF AA':H!:;G1C1
20I«i MAR 10 	AH 9-56
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BRIAN ADRIAN SAWYER,
Appellant.
No. 69454-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 10, 2014
Leach, C.J. 	— Brian 	Sawyer appeals the trial court's restitution order
entered 	following 	his 	conviction 	for trafficking 	in stolen 	property 	in the first
degree. 	He claims that the amount imposed exceeds the loss the State proved
to 	be causally connected to 	his offense. 	Because the State established the
ordered restitution amount by a preponderance of the evidence, we affirm.
Background
Commercial Metal Recycling Inc. operates a public metal recycling center
in Pacific, Washington. 	Brenna Otto worked as a bookkeeper and a manager at
Commercial Metal. 	Michael Holman was a scale operator at Commercial Metal.
Sawyer sold scrap metal to Commercial Metal often. 	Otto and Holman
became suspicious of Sawyer because he frequently sold to Commercial Metal
about two to four hundred pounds of high-grade copper at one time. 	Sawyer

No. 69454-5-1 / 2
delivered this copper in the form of large, heavy ingots contained in gray five-
gallon buckets.
In 	June 	2011, 	Otto 	created 	an 	electronic 	spreadsheet 	documenting
Sawyer's copper sales to Commercial Metal between March 4, 2010, and May
17, 2011. 	During this time, Sawyer sold a total of 7,395 pounds of "copper: #1"
to Commercial Metal in 36 separate transactions, for which Commercial Metal
paid him a total of $25,677.95.
In 	May 	2011, 	Pacific 	Police 	Department 	Detective 	David 	Newton
conducted a routine business check at Commercial Metal.1 	During this check,
Otto shared with Newton her suspicions about Sawyer.
On 	May 	17, 	2011, 	Newton 	spoke with 	Sawyer at Commercial 	Metal.
Sawyer told 	Newton that he obtained the copper from a man in West Seattle
whose name and phone number he did not know. 	In June 2011, Sawyer told his
neighbor that he was scrapping copper he obtained from Rainier Ballistics, a
company that produces bullets.
Newton contacted Rainier Ballistics' production manager, John O'Connell.
He confirmed that the ingots Sawyer brought to Commercial Metal for recycling
were identical to the type that Rainier Ballistics used. 	O'Connell knew of no other
manufacturer 	in Washington 	who 	used 	copper 	in this 	ingot form. 	Rainier
1 Newton conducted business checks "[a]bout once every week or two
weeks" "to make sure that everything is okay with the property, they haven't had
any 	thefts, 	no vandalism, 	are 	there 	suspicious 	people 	coming 	in, 	recycling
suspicious materials."

No. 69454-5-1 / 3
Ballistics stored the copper in gray five-gallon buckets, with 220 pounds in each
bucket. 	O'Connell was 	not familiar with 	Sawyer or with 	Commercial 	Metal.
Newton suggested to O'Connell that Rainier Ballistics take an accurate physical
inventory of its copper. 	Plating manager Rick Lengston conducted this inventory
on 	July 6, 	2011, 	which 	showed 	approximately 1,800 pounds of oxygen-free
copper missing and approximately 5,780 pounds of regular copper missing since
the previous inventory on June 1 2 The amount of copper missing was more than
the company would normally use during this period of time.
David Gordon worked the overnight shift on the plating line at Rainier
Ballistics. 	He generally worked in the facility alone or with one other employee.
Rainier Ballistics stored the copper close to the plating line. 	Before Rainier
Ballistics 	conducted 	the 	physical 	inventory, 	Lengston 	noticed 	that 	Gordon's
usage logs showed him using about one to two hundred pounds more copper
than the production process could accommodate, despite no evidence of copper
waste or scraps. 	Shortly after Rainier Ballistics conducted the physical inventory,
Gordon called in sick and never returned to work.
On July 13, 2011, O'Connell called the police to report the copper theft
from Rainier Ballistics. 	O'Connell told police that Gordon would arrive at Rainier
Ballistics the following day to pick up his paycheck. 	On July 14, police officers
2 Lengston 	indicated 	that he 	noticed 	approximately eight buckets of
oxygen-free 	copper 	missing. 	The 	prior plating 	manager did 	not 	previously
conduct a correct inventory.

No. 69454-5-1 / 4
arrested Gordon near Rainier Ballistics. 	Afterward, Rainier Ballistics' copper loss
rates decreased.
After reviewing Otto's spreadsheet of the copper that Commercial Metal
purchased 	from 	Sawyer, 	O'Connell 	determined 	that 	in 	nearly 	all 	instances,
Gordon worked the night shift at Rainier Ballistics the day before Sawyer brought
copper to Commercial Metal. 	Sawyer brought no copper to Commercial Metal
the days after Gordon worked the day shift.
The State charged Sawyer with trafficking in stolen property in the first
degree for selling copper between March 1, 2010, and May 31, 2011, taken from
Rainier Ballistics. 	A jury convicted Sawyer as charged and returned a special
verdict that the crime was a major economic offense or series of offenses. 	The
court imposed a standard range sentence.
Following a hearing, the trial court ordered Sawyer to pay $31,872.45 in
restitution.3 	The court based this amount upon the 7,395 pounds of copper that
Sawyer sold to Commercial Metal and the average price per pound— $4.31—
that Rainier Ballistics paid for copper during the relevant period.
Sawyer appeals.
Analysis
Sawyer asks us to vacate the trial court's restitution order, claiming, "Not
only did the State fail to establish the amount of copper missing from 	Rainier
3 The court determined that Rainier Ballistics was entitled to $1,872.45 in
restitution 	and 	Western 	National 	Insurance, 	Rainier 	Ballistics' 	insurer, 	was
entitled to $30,000.00 in restitution.

No. 69454-5-1 / 5
Ballistics, it also failed 	to establish 	how much of the copper Sawyer sold 	to
Commercial 	Metals [sic] 	came 	from 	Rainier 	Ballistics." 	We 	review a 	trial
court's restitution order for abuse of discretion.4 	A court abuses its discretion
if its decision is based on untenable grounds or reasons or is contrary to law.5
RCW 9.94A.753(5) requires the court to order restitution "whenever the
offender is convicted of an offense which 	results in injury to any person or
damage to or loss of property." 	RCW 9.94A.753(3) provides that restitution "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." 	It also states, "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."6 	The legislature intended to grant the trial 	court "'broad 	powers of
restitution.'"7
In Washington, "[rjestitution is at least as punitive as compensatory."8 	In
State v. 	Kinneman,9 our Supreme Court declared that the restitution statute
"does 	not 	say that the 	restitution 	ordered 	must 	be equivalent to 	the 	injury,
damage or loss, either as a minimum or a maximum, nor does it contain a set
4 State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
5 State v. Sanchez. 171 Wn. App. 518, 546, 288 P.3d 351 (2012) (citing
State v. Schmitt. 124 Wn. App. 662, 666, 102 P.3d 856 (2004); Tobin, 161 Wn.2d
at 523), review denied, No. 88603-2 (Wash. Aug. 5, 2013).
6 RCW 9.94A.753(3).
7 Tobin, 161 Wn.2d at 524 (quoting State v. Davison, 116 Wn.2d 917, 920,
809P.2d 1374(1991)).
8 State v. Kinneman, 155 Wn.2d 272, 281, 119 P.3d 350 (2005).
9 155 Wn.2d 272, 282, 119 P.3d 350 (2005).

No. 69454-5-1 / 6
maximum that applies to restitution. 	Instead, RCW 9.94A.753 allows the judge
considerable discretion in determining restitution."
If the defendant disputes the appropriate amount of restitution, the State
must prove the amount by a preponderance of the evidence.10 	A court may not
impose restitution for speculative or intangible losses.11 	While a court must base
restitution on easily ascertainable damages, "'the amount of harm or loss need
not be established with specific accuracy.'"12 	"Evidence is sufficient to support a
restitution order if it affords a reasonable basis for estimating loss and does not
subject the trier of fact to mere speculation or conjecture."13 A court may impose
restitution only for losses "that are 'causally connected' to the crimes charged."14
A victim's damages need not be foreseeable.15
At the restitution hearing, Sawyer claimed that the appropriate amount of
restitution 	was 	$7,585.60. 	He based 	this calculation 	upon 	eight 	220-pound
buckets of oxygen-free copper at a price of $4.31 per pound. 	Sawyer argued,
"There was a nine-bucket pallet when they went to actually do inventory, which it
10 Tobin. 161 Wn.2d at 524 (citing State v. Hughes. 154 Wn.2d 118, 154,
110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco,
548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)).
11 	State v. 	Lohr, 	130 Wn. App. 904, 	910, 125 P.3d 977 (2005) (citing
^Lohr, 130 Wn. App. at 910 (internal quotation marks omitted) (quoting
^Lohr, 130 Wn. App. at 910 (citing Kinneman, 155 Wn.2d at 285).
15 Tobin. 161 Wn.2d at 524 (citing State v. Enstone. 137 Wn.2d 675, 682-
Kinneman, 155 Wn.2d at 285).
^Tojir, 130 Wn. App.
Kinneman, 155 Wn.2d at 285).
irLohr, 130 Wn. App. a
14 Tobin. 161 Wn.2d at 524 (quoting Kinneman, 155 Wn.2d at 286)
15 Tobin. 161 Wn.2
83, 974 P.2d 828 (1999)).

No. 69454-5-1 / 7
doesn't sound like they did a very good job of leading up to this, it was the eight
buckets that they found missing."16
The State proved by a preponderance of the evidence that 7,395 pounds
was a reasonable estimate of the amount of copper Sawyer stole from Rainier
Ballistics and sold to Commercial Metal. 	At the 	restitution hearing, 	the State
presented 	a 	victim 	impact 	statement from 	McConnell 	noting, 	"Although the
attached 'Purchases by Vendor Deta[i]l' List only shows 7,395 LBS of copper
was taken, there is still approximately 2,700 more Lbs that came up missing and
had to have been cashed in at another location, during the 1 1/2 years that this
had 	been going 	on." 	Rainier Ballistics received 	$30,000 from 	its 	insurance
company for the missing copper, the maximum available under its policy.
At trial, the State presented a spreadsheet indicating that Sawyer sold
7,395 pounds of copper to Commercial Metal over the course of 36 separate
transactions 	during 	the 	relevant time 	period. 	Of 	these 	36 	sales, 	19 	were
approximately 200 or 400 pounds, reflecting a sale of one or two of the 220-
pound 	buckets of copper that Rainier Ballistics stored. 	Sawyer brought the
copper to Commercial Metal in gray five-gallon 	buckets similar to those that
Rainier 	Ballistics 	used 	to 	store 	its 	copper. 	These 	buckets 	contained 	the
distinctive copper ingots that Rainier Ballistics sold. 	Sawyer sold 7,022 pounds
16 Sawyer's calculation does not include the regular copper missing from
Rainier Ballistics. 	Lengston testified at trial that the amount of this type of copper
he found during the inventory "would match fairly consistently" with normal usage
logs, but that "[ijt's more than could have been used."

No. 69454-5-1 / 8
of copper during these 19 transactions alone. 	Although the record does not
indicate if the smaller quantities that Sawyer sold in the other 17 transactions
contained 	the 	distinctive 	ingots 	from 	Rainier 	Ballistics, 	the 	trial 	court 	could
reasonably conclude that copper came from Rainier Ballistics as well, because
the physical inventory and 	usage logs suggested that during the relevant time
period, the company used more copper than it generally used during production.
The State 	need 	not establish with specific accuracy the amount that
Rainier Ballistics lost as a result of Sawyer's offense. 	The trial court did not
abuse its discretion when it required Sawyer to pay $31,872.45 in restitution.
Conclusion
The 	State 	presented 	evidence 	that 	provided 	the 	trial 	court 	with 	a
reasonable basis for calculating Rainier Ballistics' loss at $31,872.45, without
engaging in speculation or conjecture. 	Therefore, we affirm the restitution order
in this amount.
WE CONCUR:
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