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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, Respondent, v. CHRISTOPHER RUSSELL GREENE, aka ELIJA GREENE, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 62403-2-I

UNPUBLISHED OPINION

FILED: December 21, 2009

Ellington, J. -- Elija Greene stole money from his employer and was convicted of several counts of first degree theft. He appeals the resulting order of restitution, contending the evidence is insufficient to support it and that the court should have reduced his obligation because the victim took a tax deduction for the year in which the embezzlement was discovered. We disagree with the latter argument and find the evidence sufficient to support the restitution order except for two items. We remand for adjustment of the order and otherwise affirm. BACKGROUND In October 2001, David Huchthausen hired Elija Greene as a part-time bookkeeper. Greene handled accounts receivable and payable for Huchthausen's three business entities: Somerset Properties, Inc., Weiss-Huchthausen Properties, and

No. 62403-2-I/2 Huchthausen's personal business ventures involving sculpture, antiques, and real estate. Each entity had its own bank account. Greene's job included keeping ledgers for each account and for each property. Huchthausen traveled frequently, and left Greene with signed blank checks to pay the business expenses. In October 2003, Huchthausen became dissatisfied with Greene's work and told him he would no longer be needed. Greene continued to work until a replacement was found in December. Huchthausen and the new bookkeeper soon discovered numerous inconsistencies in the books. An internal audit revealed that several thousand dollars was missing from the three accounts. Huchthausen eventually reported the suspected thefts to police,1 and Greene was charged with seven counts of first degree theft. The State alleged he stole over $70,000 between April 2002 and January 2004. Eventually Greene pleaded guilty to four counts of first degree theft and one count of theft in the third degree, and agreed to pay restitution on "all charged and uncharged counts relating to information contained within the discovery."2 Greene contested the State's calculation of restitution. The court held a two day restitution hearing involving extensive testimony and several detailed exhibits. The State showed that many of the blank checks signed by Huchthausen were made payable by Greene either to himself or to "cash" and then deposited into Greene's personal bank account. Others were made payable to Greene's personal creditors or It appears that Huchthausen did not contact the police until after Greene made an unsatisfactory offer to repay part of the stolen money. See Clerk's Papers (CP) at 21.
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CP at 30, 54.

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No. 62403-2-I/3 to his friends. Greene also wrote unauthorized checks to Bank of America or "cash" and

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No. 62403-2-I/4 used them to purchase money orders payable to himself or his friends. His entries in the account check registers often listed incorrect payees or listed checks as "void." Some checks were never listed at all. Huchthausen testified the checks in question were not authorized and the amounts Greene paid himself exceeded his salary. Huchthausen took personal and corporate tax deductions for embezzlement losses in 2003. There was no evidence indicating the amount of the resulting reduction in tax liability. Huchthausen testified that any amount recovered in restitution would be taxable as regular income. Greene admitted "overbilling" Huchthausen for about $14,500. He testified he sometimes recorded checks incorrectly but denied purposefully entering incorrect information. Greene's counsel argued the State failed to prove that all of the dozens of unauthorized checks and money orders were losses resulting from Greene's crimes. Greene posited that other people could have accessed the signed blank checks or tampered with the unsecured computer bookkeeping files, and that Huchthausen was absent and could not know how many hours Greene actually worked. Greene also pointed out that the loss claimed by Huchthausen for tax purposes was far less than the $73,000 the State sought in restitution.3 The court found the preponderance of the evidence established losses of $16,633 from Huchthausen's personal bank account and $53,127.44 from the Somerset Properties bank account. The court found insufficient evidence of losses from the

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The discrepancy is unexplained.

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No. 62403-2-I/5 Weiss-Huchthausen account (amounting to $1,520) or of alleged payroll overbilling (amounting to $2,025), and denied restitution for those amounts. The court refused to offset the restitution award by the amount of Huchthausen's tax deductions. Ultimately the court entered a restitution order in the amount of $69,761.36. DISCUSSION We review a court's award of restitution for abuse of discretion.4 A court abuses its discretion when its decision rests on an untenable basis.5 Factual findings in support of a restitution order are reviewed for substantial evidence.6 The court's authority to impose restitution as part of a criminal sentence is purely statutory.7 Under RCW 9.94A.753(3): [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. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. 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.[8] "`Easily ascertainable' damages are tangible damages supported by sufficient evidence.9 "The `easily ascertainable' standard does not mean that restitution can be awarded only under simple calculations."10

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State v. Israel, 113 Wn. App. 243, 299, 54 P.3d 1218 (2002). Id. State v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082 (1992). RCW 9.94A.753(3).

State v. Tobin, 132 Wn. App. 161, 173, 130 P.3d 426 (2006), aff'd, 161 Wn.2d 517, 166 P.3d 1167 (2007).

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No. 62403-2-I/6 When the defendant contests the amount of loss, the State must prove the damages by a preponderance of the evidence.11 The statute precludes restitution for speculative and intangible losses, but the amount of loss need not be established with specific accuracy.12 "`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.'"13 Tax Deduction Greene contends the court erred by failing to take into account that Huchthausen was "already compensated by a large tax deduction,"14 which he contends mitigated the loss. Because the amount of that benefit was not established at trial, he argues the amount of restitution was impermissibly speculative. Greene's argument is based on the faulty premise that a tax deduction constitutes "compensation." A tax deduction merely reduces the gross income on which taxes are paid; unlike a tax credit, it does not directly reduce the amount of taxes owed. Further, Huchthausen will owe income tax on any restitution he receives.15 Thus, as the State pointed out at oral argument, the deduction is essentially a deferment of the tax obligation; it is not compensation.

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State v. Kinneman, 155 Wn.2d 272, 285, 119 P.3d 350 (2005). Id. Id. Id. (quoting State v. Fleming, 75 Wn. App. 270, 274, 877 P.2d 243 (1994)). Appellant's Brief at 9.

See Internal Revenue Code

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