Appropriateness of Restitution

Washington Court of Appeal Division One held when an offender is convicted of a crime that results in injury to a victim, the court shall order restitution for reasonably ascertainable medical expenses and lost wages.

On December 4, 2014, Matthew Travis Gonce was at University of Washington (UW) Medical Center with Anna Whittington, who was admitted for pregnancy complications. Rebekah Strong, a Registered Nurse, noticed Gonce exit a patient room “mumbling obscenities under his breath.”

Gonce looked at Strong and directed obscenity towards her. Strong told Gonce not to use that language towards her and as Strong walked past Gonce, he smacked her “butt extremely hard with his open hand.” Strong said the sound was “very loud” and she saw other people look to see what happened. Strong stated “it was upsetting; it was painful; it was embarrassing. It was pretty shocking, and it was very disruptive.” Gonce started “ripping everything off the walls” in the hallways and throwing equipment to the ground.

Gonce approached the front desk area yelling obscenities. When he saw another UW Medical Center employee, Carol Harris (an African American), he began yelling racial epithets at her. “With his hand in the shape of a gun, he threatened to kill Harris because she was” African American. Gonce than ran towards the front desk and lunged at Harris.  A co-worker intervened and pushed Gonce away. As Harris ran out of the area, she slammed her shoulder on the doorjamb.  Gonce than grabbed the computer monitor Harris was “using, ripped it off the front desk, and threw it on the ground with the wires…hanging out.”

Gonce then attacked Whittington when she instructed him to stop. Gonce was finally restrained until the police arrived.  While the officer held Gonce down, he tried to get away and continued to yell obscenities.

Harris returned to work on December 6th. Gonce also showed up to visit Whittington. The staff sent Harris home. Harris treated the shoulder injury and she sought counseling three times a week for a year for post-traumatic stress disorder. She did not work from December 6, 2014 until January 26, 2015 when she was released by her doctor.  To avoid contact with Gonce because Whittington was still a patient at the Medical Center, Harris was transferred to the Bellevue clinic where she worked a reduced schedule from January 26, 2015 until March 22, 2015.

Strong saw her primary care doctor for anxiety caused by the attack.  She had difficulty sleeping and was “jumpy at work.”  Per her doctor’s orders, she did not work from December 18, 2014 until December 28, 2014.

Harris and Strong filed claims with the Washington State Department of Labor and Industries (L&I). L&I paid Strong $1,731.78 ($240.18 for medical treatment and counseling and $1,491.60 for wage loss). L&I paid Harris $8,566.05 ($3,450.36 for medical treatment and counseling and $5,115.69 for wage loss).

The State charged Gonce with malicious and intentional felony harassment of Harris, international assault in the fourth degree of Strong and domestic violence intentional assault in the fourth degree of Whittington.  He plead guilty and agreed to pay restitution “in full to Harris and Strong for all losses.” L&I requested restitution payments in the amount of $1,731.78 on behalf of Strong and $8,566.05 on behalf of Harris.

Over Gonce’s objection, the court ordered restitution of $1,731.78 on behalf of Strong and $7,654.99 on behalf of Harris.  The court did not order Gonce to pay restitution for Harris’ lost wages in March since Whittington was no longer a patient at the Medical Center and Harris was able to return to her job in March. Gonce appealed arguing that the court did not have statutory authority to order restitution to L&I for lost wages paid to Strong and Harris as a result of emotions distress caused by the crimes.

The Court of Appeals held the restitution statute RCW 9.94A.753(3) authorizes the court to order restitution for reasonable ascertainable lost wages resulting from emotional distress injury caused by a crime. “The authority to impose restitution is entirely statutory.” The Sentencing Reform Act of 1981, gives the court the statutory authority to order restitution.  “In State v. Davison, 116 Wn.2d 917, 920, 809 P.2d 1374 (1991), the Washington Supreme Court held the “language of the restitution statute [ ] indicates legislative intent to grant broad powers of restitution. In State v. Hiett, 154 Wn.2d 560, 564, 115 P.3d 274 (2005), the court held the legislature intended to make restitution widely available to the victims of crimes.”

Prior to ordering restitution, the court is required find a causal connection between defendant’s crime and the injury. There is causal connection if “but for the crime, the victim would not have insured the loss.”

The Court began the analysis by looking at the plain language of the restitution statue, RCW 9.94A.759(3), which states:

[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 Court stated Gonce’s argument that the statute authorizes the court to order restitution for wage loss resulting only from physical injury is not supported by neither the legislative history nor the plain language of the statute. The Court pointed out when the restitution statute was first enacted in 1981, it was limited to “lost wages resulting from physical injury.” The statute was amended to delete the word “physical”. The court reasoned the plain and unambiguous language that permits the court to order restitution for reasonable ascertainable “lost wages resulting from injury” has not changed in 35 years. Also, by deleting the word “physical,’ the legislature uses the broader term “injury.” The court turned to the dictionary to define the term “injury,” because it was not defined by legislature. “Injury” is defined as “an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm.”

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