State v. Storm

318 Or.App. 809

509 P.3d 132

STATE of Oregon, Plaintiff-Respondent,

v.Matthew Blake STORM, aka Matthew Storm, Defendant-Appellant.

A170211

Court of Appeals of Oregon.

Argued and submitted September 29, 2020.

April 6, 2022

Francis C. Gieringer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna Hershey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Pagán, Judge, and DeHoog, Judge pro tempore.^*

DeHOOG, J. pro tempore In this criminal case, defendant appeals a supplemental judgment awarding restitution, entered after he admitted that he had damaged property of the victim. Defendant contends that the court erred in ordering restitution for damages from criminal activities of which defendant was not convicted and to which he did not admit, as required by ORS 137.106(1)(a) (2021).¹ As explained below, in light of the Supreme Court's decision in State v. Andrews , 366 Or. 65, 69, 456 P.3d 261 (2020), we agree and, accordingly, reverse the supplemental judgment and remand for resentencing.

Defendant was charged with fourth-degree assault, ORS 163.160, harassment, ORS 166.065, and second-degree criminal mischief, ORS 164.354, committed "on or about May 31, 2018." Pursuant to a plea agreement, defendant pleaded guilty to fourth-degree assault and agreed to pay "reasonable restitution" for the charge of second-degree criminal mischief, although that charge, along with the harassment charge, was dismissed. Defendant admitted that he "unlawfully and intentionally damaged property belonging to [the victim]" without any reasonable ground or right to do so.

At the plea hearing, the prosecutor recited the factual basis for the plea. As relevant to the issue on appeal, she stated only that, when a police officer arrived at the victim's home, the victim "pointed out damage to the sheetrock at the residence from the Defendant punching a wall with his fist." Later in the hearing, the court asked, "And is the restitution for the sheetrock?" The prosecutor responded, "Yes, your honor." The police report described damage to a wall near the front door as well as above a doorway in a hallway, and photographs taken by the police officer showed the same damage. The photographs showed that the damage above the doorway in the hallway was to the door frame.

Defendant received the police report and photographs as discovery, and both were later entered into evidence at the restitution hearing.

At the restitution hearing, the victim testified about damage that defendant had caused around May 31. She provided an estimate from a contractor to repair damage to several parts of the house, including areas other than the front door area and the hallway door frame. She explained that defendant had damaged the hallway door frame by throwing a vacuum cleaner at it, destroying the vacuum cleaner and resulting in additional damage to walls and an interior door that the vacuum cleaner bounced into. She also described damage to her car windshield, her iPhone, a statue, a fountain, and planter pots that she made to sell as art. She testified that defendant caused all of that damage, which took place over the course of 24 hours on or about May 31, 2018.

Defendant conceded that the trial court should impose restitution for the damage noted in the police report and photographs that he had received as discovery, which was the damage to the sheetrock and the hallway door frame. However, he argued that the court could not impose restitution for the "other items which [the victim] says [defendant] broke at some point but weren't part of this investigation," because "we don't believe [defendant has] been charged with those." The state responded that, even though the state had not originally identified all of the damage caused by defendant's criminal mischief, that information would have been presented if the case had gone to trial and, accordingly, defendant should be required to pay restitution for all of the damage.

The trial court noted that the criminal-mischief charge "alleges that on or about May 31, 2018, the Defendant intentionally damaged property belonging to [the victim]. And on or about could well be inclusive of things that happened the day before or the night before." The court ordered restitution for each of the items described by the victim above, noting that those damages "are the damages that relate to that particular criminal episode."

Defendant appeals, contending that the trial court erred in imposing restitution for damage other than the damage to the sheetrock and the hallway door frame. He contends that he admitted only the acts that caused the damage identified in the discovery he received and that the prosecutor described at the plea hearing. He argues that the trial court erred in awarding restitution for the other damage, because he was not charged with, and did not admit, acts that caused the other damage. The state responds that all of the damage for which the trial court ordered restitution is within the scope of defendant's admission that he intentionally damaged the victim's property on or about May 31, 2018. Relying on our case law, the state asserts that the burden was on defendant to limit his admission in some way if he did not intend to admit to all conduct that could fall within the scope of the admission: "[W]here, as here, the defendant does not expressly limit his guilty plea, the portion of the information to which he pleads guilty controls the scope of criminal activities of which he is convicted." (Citing State v. Kirkland , 268 Or. App. 420, 421-22, 427, 342 P.3d 163 (2015).)²

ORS 137.106 requires an award of restitution when three prerequisites are met: (1) criminal activities; (2) economic damages; and (3) a causal relationship between the two. Andrews , 366 Or. at 69, 456 P.3d 261. "Criminal activities" are defined as "any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant." ORS 137.103(1). As the Supreme Court recently explained, "The restitution statute grants a court the authority to make its own, independent, factual findings as to the second and third prerequisites, but it does not recognize a similar authority to determine the first prerequisite—the criminal act that the defendant committed."

State v. Lile , 315 Or. App. 714, 717, 501 P.3d 1079 (2021), rev. den. , 369 Or. 211, 503 P.3d 451 (2022) (citing Andrews , 366 Or. at 70-71, 456 P.3d 261 )).

Although Andrews involved a jury trial rather than an admission or a guilty plea, the court's holding in that case affects both contexts. In Andrews , the defendant was charged with fourth-degree assault and harassment. At trial, the state presented evidence that the defendant had both punched and spit on the victim, with the punch causing damage to the victim's dental bridge. As to the harassment charge, the state argued in closing that the jury could base its verdict on the defendant having spit on the victim, having punched him, or both. The jury convicted the defendant of harassment but acquitted him of fourth-degree assault. State v. Andrews , 295 Or. App. 194, 195, 433 P.3d 757 (2018), rev'd in part , 366 Or. 65, 456 P.3d 261 (2020).

At the restitution hearing, the state sought restitution for the damage to the dental bridge. It presented the victim's testimony that the defendant had punched him in the face. The trial court reasoned that the jury could have found that the defendant had punched the victim and thereby caused the damage to the dental bridge. Id . at 196, 433 P.3d 757. Thus, over the defendant's objection, it ordered restitution. Id.

The defendant appealed, arguing that "the causal nexus [between the defendant's act of punching the victim and the damage to the dental bridge] is defeated because it cannot be ascertained from the jury's verdict that the jury necessarily believed that defendant hit the victim, as opposed to merely spitting on him." Id. at 197, 433 P.3d 757. We rejected that argument and, ultimately, affirmed.

First, we explained:

"Although a trial court cannot impose restitution for damages arising out of criminal activity for which a defendant was not convicted or which a defendant did not admit having committed, the court, in determining whether a defendant has engaged in criminal activity that resulted in a victim's economic damage, may consider any evidence that it ordinarily would at a sentencing hearing."

Id. (internal citation, quotation marks, brackets, and ellipses omitted). We recognized that "a trial court, in imposing restitution, 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." Id. at 198, 433 P.3d 757. However, we reasoned that, because the jury's verdict was not inconsistent with a determination that the defendant had punched the victim—that is, either the spitting or the punch, both of which were in evidence, could have satisfied the offensive-physical-contact element of harassment—the trial court had not found facts that enlarged the scope of the defendant's criminal activities. Id.

The Supreme Court disagreed. The issue as framed by the court was "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." Andrews , 366 Or. at 69, 456 P.3d 261. The court explained that, in the state's view, a "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." Id. That is, echoing our holding in the case, the state argued that "a defendant's...