State of Washington v. Scott A. Charles

COURT OF APPEALS, DIVISION III, STATE OF
WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SCOTT A. CHARLES,
Appellant.
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No. 40514-1-III
ORDER GRANTING
MOTION FOR
RECONSIDERATION
AND AMENDING
OPINION
The court has considered the State’s motion for reconsideration of this court’s
opinion dated August 6, 2026, and is of the opinion the motion should be granted.
THEREFORE, IT IS ORDERED that the motion for reconsideration is hereby
granted, and the opinion will be modified as follows:
The first full paragraph on page 7 shall be amended to remove the citation to
State v. Morley, 119 Wn. App. 939, 944, 83 P.3d 1023 (2004), and the parenthetical that
follows it, and shall read as follows:
In fact, the State presented no evidence whatsoever of the
hospital’s loss. It had the burden of proof, yet failed in this burden. In its
motion for restitution, the State argued to the trial court:
IT IS FURTHER ORDERED that the last sentence on page 8 shall be amended
to read:
With such information, the court can calculate a pro rata useful life value
of the device and award as restitution no more than twice that amount.
PANEL: Judges Lawrence-Berrey, Murphy, and Hill
FOR THE COURT:
________________________________
TRACY STAAB
CHIEF JUDGE
FILED
SEPTEMBER 10, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

COURT OF APPEALS, DIVISION III, STATE OF
WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SCOTT A. CHARLES,
Appellant.
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No. 40514-1-III
ORDER CLARIFYING
COURT’S OPINION
The court has considered the State’s motion to clarify the unpublished portion of
the opinion dated August 6, 2026.
To the extent the unpublished portion of the opinion implies that only felonies
prevent criminal history from washing out, this implication is incorrect. The relevant
statute states that “any crime that subsequently results in a conviction” may prevent a
washout. RCW 9.94A.525(2)(b), (c) (emphasis added).
PANEL: Judges Lawrence-Berrey, Murphy, and Hill
FOR THE COURT:
________________________________
TRACY STAAB
CHIEF JUDGE
FILED
AUGUST 18, 2026
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,
Respondent,
v.
SCOTT A. CHARLES,
Appellant.
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No. 40514-1-III
OPINION PUBLISHED
IN PART
LAWRENCE-BERREY, J. — Scott Charles pleaded guilty to first degree malicious
mischief after he broke a hospital’s medical device, a slit lamp. The device was at the
end of its useful life. On appeal, Charles challenges his offender score and the restitution
order that he pay the hospital $14,563.49 for a new slit lamp.
In the unpublished portion of this opinion, we conclude that Charles waived his
right to contest his offender score. In the published portion of this opinion, we emphasize
that trial courts are precluded by statute from awarding more than twice the amount of the
victim’s loss, and here the State failed to prove the hospital’s loss. We remand for an
evidentiary hearing to ensure that the ordered restitution is no more than twice the
hospital’s true loss.
FILED
AUGUST 6, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

No. 40514-1-III
State v. Charles
2
FACTS
In August 2023, Scott Charles stopped as he was being escorted down a hallway at
Providence Holy Family Hospital, turned toward a medical device, and broke it by
throwing it on the floor. The device was a Marco 5 Ultra Slit Lamp, and the hospital
used it for eye exams. Charles explained to the investigating officer that he threw the
device on the floor because he believed it was a ghost.
The State charged Charles with malicious mischief in the first degree. Charles
pleaded guilty, and the court later entered a drug offender sentencing alternative (DOSA).
The sentence indicated that Charles’ plea was an Alford1plea.2
Later, the State requested the entry of a restitution order in the amount of
$14,563.49, the price the hospital would pay for a comparable but new slit lamp. In
response, Charles provided a declaration that the device’s manufacturer believed the slit
lamp could be repaired for $330.90, and he also included several work orders from the
hospital’s technician as far back as December 2019. Although the work orders did not
say how old the slit lamp was, the technician’s July 2022 work order described the device
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2 We provide more details about the plea in the unpublished portion of this
opinion.

No. 40514-1-III
State v. Charles
3
as an “ol[d] horse [that] needs to be put out to pasture,” and recommended the hospital
“get a newer model.” Clerk’s Papers (CP) at 250.
At the hearing, Charles noted there was a question of fact about the proper
restitution amount and requested an evidentiary hearing. The trial court continued the
hearing to give the State the opportunity to obtain a declaration to support its argument
that the damaged device was not repairable and what the hospital paid for a new device.
At the continued hearing, the State presented a declaration from the hospital’s
technician who inspected the device soon after Charles broke it. The declaration stated
that the device could not be repaired.3 The State also presented a receipt from the
hospital showing it paid $14,563.49 for a new slit lamp. Charles renewed his request for
an evidentiary hearing, asking for the opportunity to have an appraiser testify about the
value of the used device. The trial court denied the request and entered a restitution order
in favor of the hospital for $14,563.49. In denying the request, the court explained that
the continued hearing had a limited purpose—for the State to obtain sufficient
documentary evidence—and that Charles had not earlier requested additional discovery.
Charles appeals to this court.
3 We note that this opinion was included in the August 2023 work order provided
by Charles to the trial court.

No. 40514-1-III
State v. Charles
4
ANALYSIS
THE RESTITUTION ORDER
Charles raises two arguments for reversing the trial court’s restitution order.
Before addressing each argument, we set forth the general standards of our review.
General standards for reviewing restitution orders
Appellate courts will not disturb a trial court’s restitution order absent an abuse of
discretion. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). A trial court
abuses its discretion when it “(1) adopts a view that no reasonable person would take and
is thus ‘manifestly unreasonable,’ (2) rests on facts unsupported in the record and is thus
based on ‘untenable grounds,’ or (3) was reached by applying the wrong legal standard
and is thus made ‘for untenable reasons.’” State v. Sisouvanh, 175 Wn.2d 607, 623, 290
P.3d 942 (2012) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
A sentencing court’s authority to order restitution is purely statutory, and
restitution is required “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(5).
In general, “restitution ordered by a court . . . 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. . . . [B]ut [r]estitution shall not

No. 40514-1-III
State v. Charles
5
include . . . intangible losses [other than] counseling reasonably related to the offense.”
RCW 9.94A.753(3)(a). “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.” Id.
“If the defendant disputes facts relevant to determining restitution, the State must
prove the damages at an evidentiary hearing by a preponderance of the evidence.” State
v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005).
The evidentiary hearing requirement
Charles’ first of two arguments is that the trial court erred in denying him an
evidentiary hearing. The State responds that Charles received one. We agree with the
State.
In State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), the court
recognized that case had not yet defined “evidentiary hearing” in the restitution context.
The court seemingly approved Black’s Law Dictionary’s definition of the term “as ‘[a]
hearing at which evidence is presented, as opposed to a hearing at which only legal
argument is presented.’” Id. (quoting BLACK’S LAW DICTIONARY 738 (8th ed. 2004)).
In the first hearing, the trial court considered evidence presented by both the State
and by Charles; in the second hearing, the trial court considered only evidence presented
by the State. Charles was given the opportunity to refute the State’s evidence, and, as we

No. 40514-1-III
State v. Charles
6
explain later, he refuted it successfully. We conclude that Charles received an
evidentiary hearing.
Discretion abused by awarding more restitution than permitted by statute
Charles’s second argument is that the trial court abused its discretion by awarding
the cost of a new slit lamp when, one year before he broke it, the hospital’s technician
compared the old device to a horse that needed to be put out to pasture. We agree.
As noted previously, the restitution statute limits the amount of restitution a trial
court can order. In the context here, the limitation is “double the amount of . . . the
victim’s loss from the commission of the crime.” RCW 9.94A.753(3)(a). One year
before Charles broke the device, the hospital’s technician had recommended that the
hospital put the old device “out to pasture” and “get a newer model.” CP at 250. The
State failed to submit any evidence to contradict the notion that the slit lamp was at the
end of its useful life. To the extent $14,563.90 is more than double the hospital’s loss,
the trial court abused its discretion by awarding more than permitted under the restitution

No. 40514-1-III
State v. Charles
7
statute.4
In fact, the State presented no evidence whatsoever of the hospital’s loss. See
State v. Morley, 119 Wn. App. 939, 944, 83 P.3d 1023 (2004) (market value of new
generator is not the appropriate value of a stolen used generator). It had the burden of
proof, yet failed in this burden. In its motion for restitution, the State argued to the trial
court:
Unlike for instance a used vehicle, determining the monetary value of pre-
owned medical equipment is not widely available. At this time, the State
has not found a readily accessible means of ascertaining the value of the
specific model of the slit lamp in question. Given that there are no other
alternatives, . . . the State requests that the court grant the requested
restitution amount of $14,563.49 [for a new slit lamp].
4 In State v. Smith, 42 Wn. App. 399, 711 P.2d 372 (1985), we upheld a trial
court’s award of the actual amounts insurers paid to the victims of a burglary. Under the
insurance contracts, the insurers were obligated to pay replacement costs to the burgled
victims to replace the items stolen with new items. Id. at 400. There, the insurers were
the victims, and the ordered restitution was their actual loss. Id. at 402. A restitution
award for a victim’s actual loss is consistent with our analysis here.
In State v. Waters, No. 69932-6-I (Wash. Ct. App. Apr. 28, 2014) (unpublished),
https://www.courts.wa.gov/opinions/pdf/699326.pdf, Division One of this court cited
Smith for the proposition that “[i]t is not an abuse of discretion to utilize replacement
value instead of fair market value.” Waters, slip op. at 7. We disagree that Smith stands
for this broad proposition. Regardless, Division One upheld a restitution order for $35
for each of the 50 cattle guards Waters stole. Id. at 8. The evidence was that the original
cattle guard prices ranged from $30 to $42. Id. In Waters, there was no evidence that the
cattle guards (commonly made from high strength structural steel) had a limited useful
life. On this basis, the result we reach here is consistent with Waters.

No. 40514-1-III
State v. Charles
8
CP at 190. We disagree with this argument. Even if a victim’s loss is not provable, the
trial court is limited by statute to awarding no more than double the victim’s loss. But as
explained below, the State may be able to sufficiently prove the hospital’s loss.
“While the claimed loss ‘need not be established with specific accuracy,’ it must
be supported by ‘substantial evidence.’” Griffth, 164 Wn.2d at 965 (quoting State v.
Fleming, 75 Wn. App. 270, 274-75, 877 P.2d 243 (1994)). “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.’” Hughes, 154 Wn.2d at 154
(internal quotation marks omitted) (quoting Fleming, 75 Wn. App. at 274-75).
Here, the State has options other than locating a market for used medical
equipment to establish the value of the hospital’s old slit lamp. The hospital can provide
the State with the year it purchased the slit lamp, the approximate purchase price, and its
technician can estimate the remaining useful life of the old device before Charles broke
it. With such information the court could can calculate a pro rata useful life value of the
device and award as restitution no more than twice that amount.

No. 40514-1-III
State v. Charles
9
We reverse the trial court’s restitution order and remand for a new evidentiary
hearing.5
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
ADDITIONAL FACTS
Before pleading guilty, Charles signed a document entitled “Understanding of
Defendant’s Criminal History.” Clerk’s Papers (CP) at 47-48 (some capitalization
omitted). The first page of the two-page document set forth Charles’ criminal history,
which included five prior felonies. A noticeable gap existed between the time of two
prior felonies: on December 3, 2007, an Idaho court sentenced Charles for a felony
conviction of injury to jail property, and, on October 25, 2018, Charles committed his
next felony, another injury to jail property. This gap suggests that the 2007 felony (along
with two earlier felonies) would have washed out from Charles’ offender score unless it
5 In his briefing, Charles focused on the trial court’s failure to give him the
additional hearing he requested. We thus limit his relief to an additional hearing.

No. 40514-1-III
State v. Charles
10
was comparable to a Washington class B felony, such as malicious mischief in the first
degree. RCW 9A.48.070(2).
The second page of the two-page document contains a paragraph that states:
Defendant’s understanding and agreement that his/her criminal conviction
history is set forth above in this document. Defendant affirmatively agrees
that the State has proven, by a preponderance of the evidence, defendant’s
prior convictions and stipulates, without objection, by his/her signature
below, unless a specific objection is otherwise stated in writing within this
document—UNDERSTANDING OF DEFENDANT’S CRIMINAL
HISTORY, each of the listed criminal convictions contained within this
document count in the computation of the offender score and
sentencing range and that any out-of-state or foreign conviction(s) is the
equivalent of a Washington State criminal felony offense and conviction for
the purposes of computation of the resultant offender score and sentencing
range. The defendant further stipulates and agrees he/she has read or has
had the contents of the document read to him/her and he/she understands
and agrees with the entirety of the contents of this document.
CP at 48 (emphasis added). Charles initialed next to this paragraph and signed at the
bottom of the page.
The trial court sentenced Charles according to the agreed on criminal history with
an offender score of 5. The standard range for the conviction was 14 to 18 months. In
lieu of confinement, he received a DOSA, which ordered 24 months of community
custody as part of a residential substance use disorder treatment-based alternative.

No. 40514-1-III
State v. Charles
11
ANALYSIS
CHARLES’ OFFENDER SCORE
Charles argues the trial court erred in calculating his offender score as a 5 because
the State failed to prove that score by a preponderance of the evidence. We conclude that
Charles waived this challenge.
A trial court may only impose a sentence within its statutory authority. In re Pers.
Restraint of Goodwin, 146 Wn.2d 861, 867-68, 50 P.3d 618 (2002). It must determine
the sentence by first calculating the defendant’s offender score in accordance with their
criminal history. RCW 9.94A.525, .530(1).
The State must prove a defendant’s prior convictions by a preponderance of the
evidence. State v. Hunley, 175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). This burden is
met if the defendant affirmatively acknowledges their criminal history on the record. Id.
at 912.
When a statutorily dictated, crime-free period has elapsed, a defendant’s prior
offense is said to have “washed out” and may not be included in their offender score.
State v. Schwartz, 194 Wn.2d 432, 439, 450 P.3d 141 (2019). A defendant’s prior class B
felony conviction washes out after 10 consecutive crime-free years in the community.
RCW 9.94A.525(2)(b).

No. 40514-1-III
State v. Charles
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Criminal defendants may challenge the trial court’s legal determination of their
offender score for the first time on appeal. Goodwin, 146 Wn.2d at 874. However, the
factual basis for a sentence may be waived by a stipulation. Id.
Charles argues that the stipulation, quoted above, failed to include his agreement
that the 2007 Idaho felony did not wash out. We disagree.
The plain intent of the paragraph was to relieve the State of its burden to prove
Charles’ offender score, including the factual or legal comparability of Charles’ Idaho
convictions. This agreement may well have been in exchange for the State’s agreement
to recommend a residential DOSA. Regardless, Charles agreed that each of his five
felony convictions “count[ed] in the computation of [his] offender score and sentencing
range.” CP at 48. We conclude that Charles waived the right to challenge the factual
basis of his plea, including whether the 2007 Idaho felony conviction (and two later
convictions) washed out.6
6 In an additional statement of authorities (ASOA), Charles asserts he is
challenging his Alford plea to malicious mischief in the first degree, “since the item
damaged was used and the State failed to produce any evidence of its market value as a
used, piece of equipment.” ASOA, filed May 23, 2025, at 1. First, Charles did not
challenge his Alford plea in his opening brief. Second, we do not consider issues raised
for the first time in a reply, In re Marriage of Bernard, 165 Wn.2d 895, 908, 204 P.3d
907 (2009), much less in a later-filed ASOA.

No. 40514-1-III
State v. Charles
13
Sentence affirmed, restitution order reversed and remanded.
_________________________________
Lawrence-Berrey, J.
WE CONCUR:
___________________________________
Murphy, J.
____________________________________
Hill, J.