State v. Eastman, 10-79-08891

• Decision Date: 09 June 1981
• Docket Number: No. 10-79-08891,10-79-08891
• Parties: STATE of Oregon, Respondent, v. Earl Glenn EASTMAN, Appellant. ; CA 18018. . *
• Court: Oregon Court of Appeals

Page 956

626 P.2d 956

51 Or.App. 723

STATE of Oregon, Respondent, v. Earl Glenn EASTMAN, Appellant.

No. 10-79-08891; CA 18018.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Nov. 10, 1980.

Resubmitted In Banc April 9, 1981.

Decided April 13, 1981.

Reconsideration Denied June 9, 1981.

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem.

CAMPBELL, Judge.

This prosecution arose out of the accidental collision between defendant's car and a motorcycle. Two persons riding the motorcycle were severely injured. Defendant left the scene of the accident without first giving his name, address and motor vehicle registration number and without rendering reasonable assistance to the injured persons, as required by statute. He was convicted of felony hit and run. ORS 483.602. ¹ The court sentenced defendant to pay restitution to the injured motorcyclists in the amount of $25,180.74. Defendant appeals from the order of restitution.

The court's authority to order restitution as part of a sentence is provided by statute. The court may order restitution to be made only to a victim of defendant's criminal activities. ORS 137.106(1). Victim is defined in ORS 137.103(4) as any person who "has suffered pecuniary damages as a result of defendant's criminal activities." (Emphasis supplied.) Pecuniary damages means all special damages "which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities." ORS 137.103(2). Criminal activities are any offense for which defendant is convicted or any other criminal conduct which he admits. ORS 137.103(1).

We interpret these statutes as requiring a causal relationship between the conduct for which the defendant is convicted and the damages which the victim suffers. We find no such relationship in this case. Defendant's criminal offense was leaving the scene of an accident in which he was involved without supplying statutorily required information and rendering reasonable assistance to injured persons. This conduct did not produce any injuries. The record contains no evidence that the victims' injuries were aggravated by defendant's failure to render immediate assistance. As far as we can tell, the injuries were the result of the accident which preceded defendant's crime and are not subject to an order of restitution. Defendant's conviction in no way establishes his liability for the damages suffered by the "victim." Fault is not an element of the crime. The sentence of restitution was, therefore, unauthorized. State v. Dillon, --- Or.App. ---, 626 P.2d 959 (decided this date).

The dissent in this case is answered in State v. Dillon, --- Or.App. ---, 626 P.2d 959 (decided this date).

The order of restitution is vacated.

Reversed and remanded for resentencing.

JOSEPH, C. J., filed a dissenting opinion, joined by THORNTON and WARREN, JJ.

JOSEPH, Chief Judge, dissenting.

I dissent, because the majority misreads and misapplies the restitution statute, particularly ORS 137.103(2). That section has the function of defining (and confining) the term "pecuniary damages" in ORS 137.103(4) to mean those sorts of damages that "a person" (NOTE: not "the victim" or "the person injured") could recover in an appropriate civil case. The trial judge here determined from the presentence report that the accident out of which the damages arose was the defendant's fault. The majority quotes but does not deal with the language in ORS 137.103(2) about "the facts or events constituting the defendant's criminal activities." (Emphasis supplied.)

The indictment by which the defendant was charged said he "did operate a motor vehicle * * * in such a manner that it was involved in an accident which resulted in an injury to * * *, and thereafter did unlawfully and with criminal negligence leave the scene of the accident without first giving his name, address and his motor vehicle's registration number * * *, or render reasonable assistance to the person injured * * *." Under ORS 483.602(1) ¹ the allegations quoted are parts of the offense to be charged and proved. The defendant had to have been driving a vehicle that was involved in an accident. It should go without saying that the imposition of restitution is part of the sanctions that may be imposed upon a person convicted of a crime, not a civil judgment. The trial judge's determination that the accident was defendant's fault was not only permissible, it was necessary in order to "characterize the defendant" for the purpose of determining the appropriate sanctions. See State v. Quinn, 290 Or. 383, 405, 623 P.2d 630 (1981).

The majority has misled itself into analyzing the statute as if it is dealing with issues of civil liability which, of course, it is not doing, or should not be doing. It ignores the legislature's clear recognition that civil liability is entirely another matter. ORS 137.109(2) says:

"(2) If conviction in a criminal trial necessarily decides the issue of a defendant's liability for pecuniary damages of a victim, that issue is conclusively determined as to the defendant if it is involved in a subsequent civil action."

I would hold that...