State v. Gerhardt

ARMSTRONG, J. Defendant appeals an amended judgment of conviction for strangulation, ORS 163.187, challenging the trial court’s order that he pay restitution for attorney fees that the court found that the victim had incurred as a result of the strangulation. Defendant contends that the trial court erred in awarding restitution because the attorney fees were not incurred as a result of the strangulation but, rather, as a result of defendant’s persistent violation of a no-contact order that a court had entered after defendant’s arrest. We agree with defendant and reverse the restitution award. The facts are undisputed. Defendant was arrested for strangling the victim — his wife — and was jailed as a result. While in jail, defendant was subject to a court order that barred him from contacting the victim. Defendant repeatedly violated that order, which eventually prompted the victim to hire an attorney to seek enforcement of the no-contact order and to obtain a restraining order under the Family Abuse Prevention Act (FAPA). Defendant ultimately pleaded guilty to the strangulation charge, and the victim requested a restitution award under ORS 137.106(l)(a) for, among other things, $1,880 in attorney fees that she had paid her attorney for services related to the no-contact and FAPA orders. The trial court awarded the requested attorney fees, and defendant appealed. ORS 137.106(l)(a) is the source of a court’s authority to award restitution. It provides, as relevant: “When a person is convicted of a crime *** that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, 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 enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court.” For purposes of that statute, “economic damages” is defined by ORS 31.710(2)(a): — 594 — “‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past * * * impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”1 Under those provisions, economic damages that can be awarded as restitution include reasonable expenses necessarily incurred by a victim to redress the harm caused to the victim by a defendant’s criminal conduct. Here, the district attorney submitted to the court a written restitution request from the victim that identified a number of expenses for which she sought restitution. In it, the victim succinctly described the basis for her request to receive restitution for the attorney fees that she had incurred: “Attorney Fees: $1,880.00 “Hired after [defendant’s] repeated violations of the no contact order while in jail[.] “Attorney assisted in contacting the jail to get a copy of the no contact order and release provisions, to contact the district attorney and Victim’s Assistance on the plea offer, restitution and no contact provisions, obtaining a FAPA restraining order after [defendant’s] previous violations of no contact order with no repercussions, gathering evidence of violation of no contact provisions].]” The request was accompanied by a bill from the attorney that described the work that she had done and the time that she devoted to most of the tasks. Neither the victim nor her attorney testified at the restitution hearing. — 595 — As noted, the trial court found that defendant’s strangulation of the victim had caused her to incur $1,880 in attorney fees. However, as the restitution request establishes, it was defendant’s repeated violation of the no-contact order that caused the victim to hire an attorney to address the violations, that is, to address defendant’s post-arrest conduct. Defendant’s commission of the crime of strangulation was a necessary predicate for all of that, but it was not sufficient to cause the victim to incur the attorney fees. In other words, it was defendant’s conduct after he committed the crime that led the victim to conclude that she needed to hire an attorney to address that conduct and, hence, caused her to incur the attorney fees. The circumstances of this case are readily distinguishable from cases in which we have upheld restitution awards for expenses that victims have incurred to redress the harm caused to them by a defendant’s criminal conduct. For example, in State v. Pumphrey, 266 Or App 729, 338 P3d 819 (2014), rev den, 357 Or 112 (2015), we upheld an award for various expenses that the victim had incurred to address the harm caused to her by the defendant’s violations of a stalking protective order (SPO), which were the crimes for which the defendant was convicted. The defendant’s criminal conduct, viz., his violations of the SPO, caused the victim to suffer severe panic attacks, which, in turn, caused her to incur various expenses for which the trial court awarded restitution, including the cost to change the locks at the victim’s home and her phone number, the cost of a temporary residence, and lost wages for the workday that the victim devoted to getting the locks changed. The defendant challenged the trial court’s award of those expenses on the ground that they represented expenses incurred to protect against future criminal conduct by the defendant and not to redress harm that the victim had suffered as a result of his violations of the SPO. We rejected the challenge, explaining that it was “undisputed that defendant’s violations of the SPO caused the victim to suffer severe panic attacks and fear of defendant, and the victim testified that she changed her locks because defendant had learned her home address. Moreover, — 596 — the record also supports an inference that the safety measures the victim took helped her manage the psychological trauma caused by defendant’s crimes.” Id. at 735-36 (emphasis omitted). In other words, the record supported a finding that the victim’s expenses were necessarily incurred to redress the harm that she had suffered as a result of the defendant’s criminal conduct. They were not expenses that the victim had incurred to address conduct by the defendant other than his criminal conduct. Similarly, in State v. Doty, 60 Or App 297, 653 P2d 276 (1982), we upheld a restitution award of $2,000 for property stolen from the victim’s home in a burglary. The defendant had pleaded guilty to the theft of items from the victim’s home valued at less than $200 and had admitted to kicking in the door to steal the items. He claimed, however, that someone else must have taken the rest of the victim’s property and, as a consequence, that he could be liable only for the $200 in property that he had stolen. Under the applicable law, a person can be liable in restitution for crimes for which the person is convicted as well as for criminal conduct that the person admits to having committed, see ORS 137.103(1), making the defendant liable for both the theft and any losses caused by the burglary. We concluded that the entire loss resulted from the defendant’s criminal activities: “Defendant does not seriously dispute the loss of the missing items but denies having taken the jewelry himself. However, regardless of whether defendant actually stole the jewelry, the entire loss ‘resulted’ from his ‘criminal activities,’ including the admitted kicking in of the victim’s door, because it at least created free access to the home for the hypothetical subsequent theft.” Doty, 60 Or App at 300. In other words, the defendant’s criminal activities caused the victim to suffer the harm for which she received restitution, viz., the loss of $2,000 in personal property. See also State v. Stephens, 183 Or App 392, 394-97, 52 P3d 1086 (2002) (convictions for unauthorized use of vehicle and possession of stolen vehicle supported award of restitution for loss of wheels and tires from stolen vehicle because loss resulted from defendant’s criminal — 597 — conduct notwithstanding that defendant had not been convicted of nor admitted taking wheels and tires); State v. Bullock, 135 Or App 303, 307, 899 P2d 709 (1995) (contested expenses were the result of defendant’s criminal conduct— sexual offenses committed against defendant’s 9-year-old daughter — because “emotional and psychological problems that required the victim’s removal from the home were a natural consequence of defendant’s criminal activities”). Here, the attorney fees that the court awarded as restitution do not represent an expense that the victim necessarily incurred to redress harm that she suffered as a result of defendant’s strangulation of her. Rather, they represent an expense that the victim concluded that she needed to incur as a result of conduct in which defendant had engaged after he had committed the crime for which he was convicted. Hence, the attorney fees do not represent economic damages that the victim suffered as a result of defendant’s criminal conduct. The dissents disagree. Judge Egan contends that our decision conflicts with State v. Ramos, 267 Or App 164, 340 P3d 703 (2014), rev allowed, 357 Or 143 (2015). It does not. In Ramos, an insurance company hired various professionals to investigate an arson fire and fraudulent insurance claim by the defendant. The defendant was convicted of arson and attempted aggravated theft, the latter of which was based on the fraudulent insurance claim. We upheld a restitution award for the professional expenses that the insurance company had incurred. One portion of those expenses related to the investigation of and response to the fraudulent insurance claim, that is, for the expenses incurred to respond to the attempted aggravated theft. The other portion resulted from services provided in conjunction with the state’s investigation and prosecution of the defendant’s crimes. Under Oregon law, the insurance company was required to cooperate with the state investigation and to provide the state with any nonprivileged information that it had. ORS 731.592(1). The company had to fulfill those obligations in order to be eligible to receive restitution for the economic damages that it had incurred as a result of the — 598 — defendant’s criminal conduct. ORS 731.592(5). Hence, all of the expenses were expenses that the insurance company necessarily incurred as a result of the defendant’s criminal conduct. In contrast, the expenses at issue in this case were incurred by the victim as a result of conduct by defendant that occurred after the criminal conduct for which he was convicted. They are not comparable to the expenses for which the insurance company received restitution in Ramos. Judge Flynn, in turn, contends that our decision conflicts with cases such as Pumphrey and Doty in which we have upheld awards for damages incurred as a result of conduct or events that occurred after the criminal conduct for which the defendants were responsible. Those cases reflect a principle that restitution ■ can be awarded for damages that are a foreseeable consequence of a defendant’s criminal conduct. However, we do not believe that that principle extends to allow an award of restitution for expenses incurred by a victim as a result of unlawful acts committed by a defendant after the criminal acts on which the award is based. It is certainly foreseeable that a person who commits an act of domestic violence may commit subsequent acts of domestic violence against the same victim. Nonetheless, a restitution award for a conviction for an initial act of domestic violence could not permissibly include damages for injuries sustained as a result of subsequent violent acts by the defendant. That is analogous to the circumstance presented by this case, in which the victim incurred the expenses that she did because of defendant’s repeated violation of the no-contact order, that is, in response to unlawful conduct in which defendant engaged after the criminal conduct for which he was convicted. Award of restitution reversed; otherwise affirmed. Footnotes [1] The definition of “economic damages” in ORS 31.710(2)(a) includes “future impairment of earning capacity,” but that aspect of the definition is inapplicable to restitution awarded under ORS 137.106(1). ORS 137.103(2)(a).