State v. Page

544 P.3d 421

330 Or.App. 672

STATE of Oregon, Plaintiff-Despondent,

v.Kenneth Raymond PAGE, Defendant-Appellant.

A178281

Court of Appeals of Oregon.

Submitted October 3, 2023.

February 14, 2024

Douglas County Circuit Court, 20CR42167; William A. Marshall, Judge. (Supplemental Judgment entered March 29, 2022) Ann Marie Simmons, Judge. (Judgment entered February 22, 2022)

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.

MOONEY, J.

₆₇₄Defendant ignited a firework mortar that misfired, scattered brick shrapnel, and caused damage to the victim’s, M’s, house and property. After defendant pleaded no contest to one count of second-degree criminal mischief, ORS 164.354,¹ the trial court entered a judgment of conviction. A restitution hearing was conducted after which the court imposed restitution of approximately $7,600, including the cost of painting the exterior of M’s house. Defendant appeals from the resulting supplemental judgment and money award, assigning error to that portion of the restitution award attributable to the expense incurred by M to paint the two sides of his house that were hot directly damaged by the explosion. We conclude that the trial court did not err. We affirm.

[1, 2] We review the trial court’s imposition of restitution for legal error, remaining mindful that we are bound by the trial court’s findings if they are supported by any evidence in the record. State v. Lobue, 304 Or App 13, 16, 466 P.3d 83, rev. den., 367 Or. 257, 475 P.3d 882 (2020). In the absence of "express findings on a disputed fact, we assume that the court implicitly found the facts consistent with the judgment entered," id., and we review the evidence in the light most favorable to the state, State v. Smith, 291 Or App 785, 788, 420 P.3d 644 (2018). We state the pertinent facts accordingly.

M sought coverage from his homeowner’s insurance company, Mutual of Enumclaw (Enumclaw), for the property damage that was caused by the explosion and flying shrapnel set into motion by defendant when he ignited the firework mortar. A claims adjuster from Enumclaw testified that after inspecting and documenting the damage, they developed a cost estimate of the anticipated remedial work using a software program, standard within the insurance ₆₇₅industry, called "Exact Analysis." The line item for painting included only those exterior walls "that had sustained damage." Contractors were retained to repair the damage, and Pierce Restoration (Pierce) was selected to serve as the painting contractor. The adjuster testified that the work done, including the painting, was necessary and reasonable and that the amounts paid for that work were also reasonable.

M testified that he personally paid Pierce to paint the undamaged sides of his house because the new paint on the sides that had been damaged and repaired did not match the older, faded paint on the remaining sides. M testified that the color of the fresh paint was close, but clearly darker, than the existing paint. He testified further that he liked to keep his "place looking pretty nice," and that the partially painted house looked as though it was not "ke[pt] up." He paid Pierce the amount it charged him because it is a "reputable company" and because it charged him the same amount that it charged Enumclaw for painting the first two walls. The sentencing court included the painting cost that M incurred in the restitution award, with this explanation:

"[M] described this as reasonable and necessary to match up the paint so, that it was similar quality and, and color to what was on half of the house that the Defendant had damaged.

"And that it was reasonable and necessary. There was no testimony to the contrary from anyone else and no cross-examination about whether it was reasonable and necessary. And, and so I’m going to allow that. And that amount, as I understand it, is $3,693.30. And so that will be the order of the Court. Thank you."

The propriety of including that cost in the restitution award is the sole issue before us now.

[3] ORS 137.106 (2021)² requires a trial court to order restitution "[w]hen a person is convicted of a crime * * * that has resulted in economic damages." ORS 137.103(2) defines "economic damages" by incorporating most of the definition given, to that term by ORS 31.705(2)(a) for civil matters. As explained in State v. Herfurth, 283 Or App 149, 153-54, 388 ₆₇₆P.3d 1104 (2016), rev. den., 361 Or. 350, 393 P.3d 1176 (2017), economic damages are the "objectively verifiable monetary losses" that would be recoverable "against the defendant in a civil action arising out of the defendant’s criminal activities." (Internal quotation marks and footnote omitted.) When restitution is imposed as a sanction in a criminal sentence, it is "informed by principles enunciated in civil cases concerning recoverable economic damages." State Islam, 359 Or. 796, 800, 377 P.3d 533 (2016). There are three prerequisites for the imposition of restitution as part of a defendant’s criminal sentence: (1) criminal activities, (2) economic damages, and (3) a causal relationship between the criminal activity and the economic damages. State v. Kirkland, 268 Or App 420, 424, 342 P.3d 163 (2015). The state bears the burden of proving the factual prerequisites necessary to support an award of restitution and that the award is reasonable. ORS 137.106(1)(a); State v. Aguirre-Rodriguez, 367 Or. 614, 620, 482 P.3d 62 (2021).

[4] Defendant argues first that the state did not meet its burden to establish that the cost of painting the undamaged sides of M’s house could "be attributed to his criminal activities." He emphasizes that his "criminal activities were not a ‘but for’ cause of M’s additional painting cost loss," and he points instead to Pierce, claiming that M’s loss was caused by Pierce’s "negligence in failing to match the paint color." But defendant’s view of the necessary causal link is too narrow.

[5] The "but for" test is often used in civil cases to determine "whether a defendant’s negligence is one of many potential causes of a plaintiff’s harm." Haas v. Estate of Mark Steven Carter, 370 Or. 742, 749, 525 P.3d 451 (2023) (emphasis in original). The test does not, however, reduce causation to a single cause. It asks whether the harm would have occurred "but for"—or, in the absence of—"the defendant’s negligence." Id. Moreover, the "but for" test is not the only test used to measure factual causation in civil cases. See, e.g., Lasley v. Combined Transport, Inc., 351 Or. 1, 7-8, 261 P.3d 1215 (2011) (discussing cause in fact and the "substantial factor" test). The Supreme Court has not expressed an opinion on the question of "whether the factual causation ₆₇₇required by ORS 137.106 is limited to ‘but-for’ causation." State v. Ramos, 358 Or. 581, 586 n 3, 368 P.3d 446 (2016).

The evidence here, when viewed in the light most favorable to the state, is that defendant set off a large firework mortar that misfired, scattered brick shrapnel, and damaged M’s nearby house. The damage and associated repairs were sufficiently extensive to necessitate repainting the damaged exterior walls entirely. Not surprisingly, the fresh paint on the repaired walls did not match the existing paint on the undamaged walls, and the difference was noticeable. The required causal link between defendant’s criminal conduct and M’s expense in painting the undamaged walls is inferable from the sentencing court’s finding that M painted those walls "to match up the paint so that it was similar [in] quality and * * * color to what was on" the damaged and repainted walls. In other words, the court found that M would not have incurred the expense of painting those two walls in the absence of defendant’s criminal conduct. The record supports that finding.

[6] Defendant next argues that even if the state established the necessary causal link, "it was not reasonably foreseeable that defendant’s firework mishap would cause the painting company to fail to match paint colors, thus resulting in M’s wish to have the undamaged sides of his house repainted." That argument goes to whether the cost of painting the undamaged walls is "the kind[ ] of harm for which a defendant may be held liable." Ramos, 358 Or. at 595, 368 P.3d 446. We answer that question by applying "reasonable foreseeability" as a "limiting concept" under ORS 137.106. Ramos, 358 Or. at 596, 368 P.3d 446.

The question is ...