State v. Venable

316 Or.App. 235

502 P.3d 250

STATE of Oregon, Plaintiff-Respondent,

v.Ryan Charles VENABLE, aka Ryan Venable, Defendant-Appellant.

A172781

Court of Appeals of Oregon.

Submitted September 2, 2021.

December 8, 2021

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

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

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

JAMES, J.

Defendant pleaded guilty to third-degree theft, ORS 164.043. He appeals a supplemental judgment ordering him to pay $381.66 in restitution to the victim, B. Defendant argues that the trial court erred when it concluded that certain "Lyft fees" were a reasonably foreseeable consequence of the criminal conduct, that the fees were necessarily incurred by B, and that the damages were reasonable. We conclude that evidence in the record supports the imposition of restitution and accordingly affirm.

"We review whether a trial court complied with the requirements for imposing restitution for errors of law." State v. Buswell , 308 Or. App. 389, 390, 479 P.3d 341 (2021).

Although the question of whether the prerequisites for imposing restitution have been met is a question of law, an award of restitution is supported by, and dependent upon, the trial court's findings of fact. Id. "We will uphold the trial court's findings of fact so long as there is any evidence in the record to support them" and we view the evidence supporting the restitution order in the light most favorable to the state. Id. If the trial court did not make an express finding on a disputed fact, we assume that the court decided those facts consistent with the judgment imposing restitution. State v. Lobue , 304 Or. App. 13, 16, 466 P.3d 83, rev. den. , 367 Or. 257, 475 P.3d 882 (2020). We state the facts accordingly.

On November 6, 2017, defendant stole B's cellphone. The phone was returned to B sometime on November 7 or 8. Although B worked as a security officer, he also drove for Lyft. At the time, B's arrangement with Lyft provided him a rental car, which, if he met a weekly quota for rides, was provided "for free." Additionally, there were certain fees, payable to Lyft, that "kick[ ] in * * * during that week [if] you don't do enough rides." B said that he could only access his Lyft driver account through his cellphone, and so for the two days (November 6 and 7) his phone was missing, he could not drive for Lyft. B claimed that, as a result of the two days of missed rides, Lyft charged him $208.99 for the rental car, as well as fees of $172.67. B also testified that if he had completed more rides during the week, Lyft would not have assessed the fees or car rental charge.

Imposition of restitution in criminal cases arises under statute. ORS 137.106. A trial court is required by that statute to "award restitution when a person is convicted of a crime that the court finds resulted in economic damages to the victim." Lobue , 304 Or. App. at 14, 466 P.3d 83. Under ORS 137.106, a trial court awards restitution "when three prerequisites are met: (1) criminal activities; (2) economic damages; and (3) a causal relationship between the two." State v. Andrews , 366 Or. 65, 69, 456 P.3d 261 (2020) (footnote omitted). Defendant's assignment of error challenges the economic damages and causation requirements.

As to economic damages, defendant argues that B did not "necessarily incur" the Lyft fees and car rental costs as a result of defendant's criminal conduct, relying upon State v. Steckler , 236 Or. App. 524, 237 P.3d 882 (2010), where we determined that there was insufficient evidence in the record to support imposition of restitution because the state failed to prove that the victim was required to take any particular security measure as a result of defendant's robbery of a pharmacy. Id. at 528-29, 237 P.3d 882. In that case, it was the victim's choice, not a requirement, to install security cameras; thus, while the victim had incurred costs, those costs were not necessarily incurred. Id. at 529, 237 P.3d 882.

Here, B's inability to drive for Lyft is more akin to lost work, than a choice to install a security system. While gig economy workers may, arguably, be afforded flexibility in deciding whether or not to perform tasks on a particular day, those are not chosen leisure activities, they are work. Few among us can choose not to work. B testified that the two days he missed driving for the week made him subject to both the Lyft fees and the rental car cost. As such, there was evidence in the record to demonstrate that, due to defendant's criminal conduct, B was unable to discharge the terms of the Lyft agreement, thus making him "liable or subject to" that expense.¹ See id. at 528, 237 P.3d 882.

Turning to the causal relationship, as the Oregon Supreme Court explained, "[w]hen 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." Andrews , 366 Or. at 70-71, 456 P.3d 261. "When a statute does not impose criminal responsibility for the type of harm that occurred, ‘reasonable foreseeability is a limiting concept that a court must consider in deciding whether to award the particular damages sought.’ " State v. Alonso , 284 Or. App. 512, 519, 393 P.3d 256 (2017) (quoting State v. Ramos , 358 Or. 581, 596, 368 P.3d 446 (2016) ). As framed by the parties, the harm in this case is not the kind of harm that is prohibited by the third-degree theft statute,² therefore, we must determine whether the "traditional civil law concept of reasonable foreseeability" would make the relationship between the criminal conduct and the economic damages "too attenuated to be recoverable." Ramos , 358 Or. at 596-97, 368 P.3d 446.

The longstanding test to determine whether that relationship is too attenuated to support recovery of damages is "whether a reasonable person in the defendant's position would have foreseen that someone in the victim's position could reasonably incur damages of the same general kind that the victim incurred." Id. at 597, 368 P.3d 446.

Defendant argues that "[a] reasonable person in defendant's position could not have expected that stealing the phone [from] a security worker at an office building would lead to liability for the weekly fee for a Lyft rental car and the weekly fee for a Lyft driver." The problem with defendant's conception of foreseeability is that it frames foreseeability in terms of the predictability of the sequence of events, which is not the proper test. "In the civil law, the test that a court uses to determine whether damages are too attenuated to be recoverable is whether a reasonable person in the defendant's position would have foreseen that someone in the victim's position could reasonably incur damages of the same general kind that the victim incurred. * * * That is the test that we conclude the legislature intended to impose for use in restitution proceedings." Ramos , 358 Or. at 597, 368 P.3d 446 (emphasis added).

We accepted as reasonably foreseeable the relationship between a bank robbery and the victim's use of sick time immediately following the robbery to recover from the trauma. Buswell , 308 Or. App. at 394, 479 P.3d 341. The facts in Buswell trace a foreseeable causal chain between the criminal conduct (robbing a bank and pointing a gun at the victim), the intermediate harm (victim testified she had anxiety and needed to take time off of work to deal with trauma), and the economic loss (use of sick days for robbery trauma required victim to use other leave to care for sick child). Id. at 390, 479 P.3d 341.

Similarly, we concluded that lost wages incurred by family members to...