State v. Andrews

• Citation: 456 P.3d 261,366 Or. 65
• Decision Date: 16 January 2020
• Docket Number: CC 15CR1533 (SC S066479)
• Parties: STATE of Oregon, Respondent on Review, v. Joshua Brandon ANDREWS, Petitioner on Review.
• Court: Supreme Court of Oregon

366 Or. 65

456 P.3d 261

STATE of Oregon, Respondent on Review,

v.Joshua Brandon ANDREWS, Petitioner on Review.

CC 15CR1533 (SC S066479)

Supreme Court of Oregon.

Argued and submitted September 17, 2019.

January 16, 2020

Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

E. Nani Apo, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Landau, Senior Justice pro tempore.^**

WALTERS, C. J.

In this criminal case, defendant was convicted of one count of harassment, and, during sentencing, the trial court awarded restitution under ORS 137.106. The question we address is whether the trial court had statutory authority to do so.¹

The relevant facts are uncontested. The state charged defendant with two crimes—one count of fourth-degree assault, and one count of harassment. To prove assault, the state was required to prove that defendant caused the victim "physical injury." ORS 163.160(1)(a). To prove harassment, the state was required to prove that defendant subjected the victim to "offensive physical contact." ORS 166.065(1)(a)(A). At trial, the state presented evidence that defendant drove to the victim’s place of work, began yelling at him, spat on him, and punched him in the face, knocking out his tooth bridge. The jury acquitted defendant on the assault charge but convicted him of harassment. Post-trial, the state asked the court to impose restitution for the cost of replacing the victim’s tooth bridge. Defendant objected, arguing that the trial court did not have statutory authority to do so. Defendant contended that restitution is permitted only when a trial court can conclude, from the defendant’s conviction, that the defendant engaged in the criminal act that forms the basis for the award of restitution, and that, in this case, the trial court could not reach that conclusion: The act that formed the basis for the victim’s damages was the punch, and the jury could have convicted defendant of harassment without finding that defendant had punched the victim. To support his argument, defendant noted that the jury had acquitted defendant of assault, which could indicate that the jury did not believe that defendant had punched the victim and had reached its verdict based on the spitting evidence alone. The trial court reasoned differently and noted that, in acquitting defendant on the assault charge, the jury had not necessarily found that defendant had not punched the victim; the jury could have determined that the victim had not suffered "physical injury," as required by ORS 163.160(1)(a). The trial court observed that the evidence that defendant had punched the victim was strong and that, while urging the jury to find defendant guilty of harassment, the state had argued that both the punch and the spitting could support a guilty verdict. The trial court awarded the requested restitution.

Defendant appealed, and the Court of Appeals affirmed. State v. Andrews , 295 Or. App. 194, 433 P.3d 757 (2018). The Court of Appeals noted that, in imposing restitution, a trial court "may not engage in fact-finding that enlarges the scope of a defendant’s criminal activities beyond what the defendant was convicted of or admitted to," and cited State v. Dorsey , 259 Or. App. 441, 442, 314 P.3d 331 (2013), as an example of that limitation. Andrews , 295 Or. App. at 198, 433 P.3d 757. In Dorsey , the Court of Appeals held that a defendant who had pleaded guilty to stealing money over the course of approximately two weeks could not be required to pay restitution for money that was reported missing over 85 days. 259 Or. App. at 442, 314 P.3d 331. In Andrews , however, the Court of Appeals concluded that the restitution award did not depend on criminal activities that fell outside the scope of the crime for which defendant had been convicted. Id. at 198, 433 P.3d 757. The court explained that the "scope of defendant’s criminal activity * * * was determined when the jury convicted him of engaging in ‘offensive physical contact,’ based on evidence that included his spitting at and punching the victim" and reasoned that "[t]he trial court did not expand on that scope in imposing restitution." Id. Rather, the trial court had considered evidence that it normally could consider at a sentencing hearing and "made findings regarding the victim’s damages and their causal relationship to the evidence of defendant’s conduct that was in the record."²

Id. at 197-98, 433 P.3d 757. We allowed defendant’s petition for review,³ and, because we conclude that the trial court could not award restitution under ORS 137.106, we reverse.

ORS 137.106 requires an award of restitution when three prerequisites are met: (1) criminal activities;⁴ (2) economic damages; and (3) a causal relationship between the two. State v. Dillon , 292 Or. 172, 181, 637 P.2d 602 (1981) ; see also State v. Ramos , 358 Or. 581, 588, 368 P.3d 446 (2016) ("The statute requires *** that the damages be ‘objectively verifiable monetary losses’ that ‘result from’ a defendant’s criminal activity."). In this case, the parties’ dispute focuses on the first of those prerequisites—the defendant’s criminal activities. Specifically, the parties disagree about how a trial court is to determine, from a defendant’s conviction, whether the defendant committed the criminal act on which the state relies for an award of restitution. Defendant argues that, to find that a defendant committed a criminal act, a trial court must be able to conclude that the jury necessarily found that the defendant committed that act. The state argues that the trial court is permitted to conclude that a defendant committed a criminal act when there is evidence of that act in the record and that evidence is sufficient to support the jury’s guilty verdict; in other words, a defendant’s conviction determines the "scope" of a defendant’s criminal activity, and the trial court is permitted to find that the defendant committed any act within that scope.

Before we address that narrow dispute, we think it helpful to set out the role that the trial court plays in determining whether the other two prerequisites to restitution, which are not at issue in this case, are met. Those two prerequisites are a victim’s economic damages and the causal link between those damages and the criminal act that the defendant committed. As relevant here, the restitution statute provides:

"When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court *** evidence of the nature and amount of the damages. *** If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall *** [require] the defendant [to] pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court."

ORS 137.106(1)(a).

By its terms, the restitution statute grants trial courts authority to make its own, independent, factual findings as to a victim’s economic damages. When a person is convicted of a crime that has resulted in economic damages, ORS 137.106(1)(a) requires the district attorney to investigate and present to the court evidence of "the nature and amount of the damages." ORS 137.106(5) provides for a hearing if the defendant requests one, and ORS 137.106(1) sets forth the procedure for those hearings. See also State v. Hart , 299 Or. 128, 130, 699 P.2d 1113 (1985) ( ORS 137.106 "sets forth the procedure for [restitution] hearings"). If the trial court "finds" from the evidence of the nature and amount of the damages that the "victim suffered economic damages," then the trial court must order the defendant to pay restitution in the full amount of the victim’s damages. ORS 137.106(1).

The restitution statute also grants trial courts authority to engage in independent fact-finding to determine the cause of the victim’s economic damages; that is, the causal relationship between a defendant’s criminal activities and the economic damages suffered by the victim. As we noted in Ramos , " ORS 137.106 requires that economic damages ‘result from’ a defendant’s crime." 358 Or. at 593, 368 P.3d 446 (quoting the restitution statute). When determining causation, a trial court must determine whether there is a "but-for" connection between the victim’s damages and the crime and whether the victim’s economic damages were a reasonably foreseeable result of the defendant’s crime. Id. at 596, 368 P.3d 446. Those questions, like the question of the amount of economic damages, pose "a factual question for the court." Id. at 597, 368 P.3d 446.⁵

But, as the parties recognize, the restitution statute does not grant trial courts similar authority to make its own independent factual findings about the first prerequisite to an award of restitution—the criminal act that the defendant committed. ORS 137.106(1)(a) permits an award of restitution when a defendant is "convicted of a crime" that permits an award of restitution. In State v. Lefthandbull , 306 Or. 330, 332-33, 758 P.2d 343 (1988), this court concluded that more than a bald conviction is necessary to meet that statutory requirement. In Lefthandbull , the defendant had pleaded guilty to an attempt to manufacture a controlled substance but had not admitted committing any specific acts. Id. at 332, 758 P.2d 343. This court held that the defendant could not be ordered to pay restitution for damages caused by the manufacturing process because the state had not "proved" that the...