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Washington v. Kisor

filed: May 31, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
T. R. KISOR, APPELLANT.



Superior Court of Clark County. Superior Court Docket No. 90-1-00423-6. Date Filed In Superior Court: June 23, 1994. Superior Court Judge Signing: Barbara Johnson.

Written By: Seinfeld, CJ, Concurred In By: Bridgewater, J, Morgan, J

Author: Seinfeld

SEINFELD, C.J. -- T. R. Kisor was convicted of killing Lucky, a trained police dog.*fn1 Lucky was the property of the Clark County Sheriff's department; Officer Thomas

Mitchum was Lucky's "dog handler."*fn2 Following a restitution hearing, the trial court ordered Kisor to pay $14,419.29 to Clark County and $5,092.50 to Officer Mitchum. Kisor appeals the restitution order, contending that RCW 9.94A.142, the restitution statute, does not authorize the award. He also seeks a $15,000 offset for the private donations Clark County received to replace Lucky.

We conclude that the award to Clark County properly represents the cost to replace a fully trained police dog and, thus, is authorized by statute. The loss to Officer Mitchum of his personal time involved in training a replacement dog, however, is not compensable under the statute. We also conclude that Kisor is not entitled to benefit from the private donations to Clark County. Thus, we affirm in part and reverse in part.

FACTS

In May 1990, Kisor shot and killed Lucky.*fn3 As part of his responsibilities, Officer Mitchum had provided 24-hour care and housing for Lucky. The day after Lucky died, Officer Mitchum began the search for another dog with "qualities that would make him available as a beginning prospect to become a police service dog." Eventually, he located Lazer, a two-year-old German Shepherd. Lazer's owners donated Lazer to Clark County in June, 1990.

Although Lazer had the basic qualities required for police work, he was a "green dog," meaning that he had not been trained with a handler. Thus, Officer Mitchum needed to train Lazer before he would be an effective replacement for Lucky. From June through September 1990, Officer Mitchum worked with Lazer, teaching him "obedience, bite work, socialization, obstacle courses"

and other basic matters. Officer Mitchum testified that he was involved with this initial training "24 hours a day" or 2,352 hours over 98 days. Clark County did not compensate Officer Mitchum for his off-duty time.

Lazer then entered the next phase of his training -- attendance with Officer Mitchum at police dog training school in Tacoma. The course ran for 14 weeks in the fall of 1990 and involved 560 hours of training. Officer Mitchum's lodging and meal costs were $2,866.89. The County also paid Officer Mitchum his hourly wage of $16.97 per hour, 40 hours per week, for a total of $9,516.

Officer Mitchum used his police vehicle while searching for a replacement dog and during the training course in Tacoma. Clark County calculated the vehicle costs at $2,036.40, 15 percent of Officer Mitchum's total 1990 vehicle expenses. Officer Mitchum testified that his actual mileage during the 14-week course was 7,884 miles. In 1990, the County rented Officer Mitchum's vehicle for $0.31 per mile, or $2,444 for the 14-week period.

As a result of news about Lucky's death, Clark County received approximately $15,000 in private donations to the Sheriff's Dog Fund. The contributions were "intended to replace Deputy K9 'LUCKY.'"

Following a restitution hearing, the trial court awarded Clark County $9,516.00 for Officer Mitchum's salary, $2,866.89 for Officer Mitchum's room and board in Tacoma, and $2,036.40 for transportation costs, for a total of $14,419.29. It also awarded Officer Mitchum $5,092.50 for his off-duty work with Lazer, calculated by multiplying his $16.97 hourly pay rate times 300 hours.

On appeal, Kisor argues that RCW 9.94A.142 does not authorize any of the items included in the award other than Officer Mitchum's room and board in Tacoma. Kisor also seeks to set-off the ...


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