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State v. Riekens

Court of Appeals of Oregon

December 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
RONALD ROY RIEKENS, aka Ronald Roy Reikens, Defendant-Appellant. 301 Or.App. 447

          Argued and submitted August 23, 2019

          Multnomah County Circuit Court 17CR64424; David F. Rees, Judge.

          Mark Kimbrell, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Philip Michael Thoennes, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

         Case Summary: Defendant challenges an order requiring him to pay restitution and a compensatory fine in connection with a conviction for second-degree theft. Someone other than defendant stole the victim's bicycle from a garage, damaged it, and left it leaning against some shrubs. Defendant found the bicycle and took it. Three days later, police recovered the bicycle from defendant. Defendant was convicted of second-degree theft, and the court held a restitution hearing. Ultimately, the court found that the bicycle had lost $1, 700 in value between the time that it was taken from the garage and the time that police recovered it and, because the record did not establish the bicycle's value at the time that defendant took it, divided that amount equally between defendant and the original thief as "rough justice." On that basis, the court ordered defendant [301 Or.App. 448] to pay $350 in restitution and a $500 compensatory fine (a total of $850, which is half of $1, 700). On appeal, defendant argues that the state failed to prove that he caused any economic damages while he possessed the bicycle. The state argues that there is circumstantial evidence to support at least the compensatory fine. Held: The trial court erred as to both restitution and the compensatory fine, because the record does not support a nonspeculative inference that there was a causal relationship between defendant's criminal activities and the victim's economic damages.

          [301 Or.App. 449] AOYAGI, J.

         A jury convicted defendant of second-degree theft, ORS 164.045, for unlawfully taking a bicycle that another person had stolen from the victim several days earlier, damaged, and left leaning against some shrubs. At sentencing, the trial court ordered defendant to pay $350 in restitution and a $500 compensatory fine. On appeal of the resulting supplemental judgment, defendant challenges that ruling, arguing that the state failed to prove that he caused any economic damages. The state responds that, although it is undisputed that the original thief damaged the bicycle, there was circumstantial evidence that defendant caused additional damage to the bicycle while it was in his possession and that such evidence was sufficient to support the order. We agree with defendant and, accordingly, reverse.[1]

         We review a restitution order for legal error and are bound by the trial court's factual findings if they are supported by "any evidence in the record." State v. McClelland, 278 Or.App. 138, 141, 372 P.3d 614, rev den, 360 Or. 423 (2016). In determining the sufficiency of the evidence to support a restitution order, we view the evidence in the light most favorable to the state. State v. Kirkland, 268 Or.App. 420, 421, 342 P.3d 163 (2015). As for compensatory fines, "[w]hether a trial court erred in imposing a compensatory fine is a question of law," and "the dispositive question is whether the record *** demonstrates that the trial court imposed a compensatory fine in the absence of supporting evidence." State v. Neese, 229 Or.App. 182, 184-85, 210 P.3d 933 (2009), rev den, 347 Or. 718 (2010). We state the facts in accordance with the standard of review, also noting evidence relevant to the parties' respective trial theories where it is significant to our discussion.

         In fall 2017, someone stole the victim's cyclocross bicycle (a 2014 Focus Mares AX 2.0) from a garage where she stored it. It is undisputed that the person who initially [301 Or.App. 450] stole the bicycle was not defendant. Three days after the initial theft, defendant saw the bicycle leaning against some shrubs in someone's yard. The bicycle looked expensive, so defendant figured it was stolen, and according to his trial testimony, defendant thought that it might belong to a friend of his who had had a similar-looking bicycle stolen a few days earlier. Defendant decided to take the bicycle and, after a brief conversation with the homeowner, did so.

         Defendant had the bicycle in his possession for three days. Defendant testified that, during that time, he was waiting to hear back from his friend and "was trying to work on fixing [the bicycle] up and trying to clean it up." Defendant explained that the bicycle was "fairly tore up" when he found it. Asked, "how so?" defendant responded, "There was paint splattered all over it. It was missing one cable. Both tires were fiat. One of the shift levers was-the mount was busted loose near the handlebars." Asked what the purpose of trying to fix the bicycle was, defendant said, "I figured that if it was my friend's or if it was bad, I'd try to make it [a] little bit nicer than it was, try to fix it up a little bit so it'd be rideable again."

         On the third day that the bicycle was in defendant's possession, someone spotted it chained to defendant's trailer (along with another bicycle) and told the victim, who called police, who recovered it from defendant. The police officer who recovered the bicycle testified at trial that, when he recovered it, the bicycle was in "reasonably decent condition" and that he did not believe that it was "beat up, dented, destroyed," although he added the caveat that he was "not a bike guy."

         Defendant was charged with one count of first-degree theft, ORS 164.055(1), based on his having "unlawfully and knowingly commit[ted] theft of personal property, of the value of $1, 000 of more." At trial, the state put on evidence that defendant had stolen the bicycle from the yard where he found it and that it was worth over $1, 000. The state's evidence on the latter point included the victim's testimony that she had paid about $1, 800 three years earlier to buy the bicycle new (approximately $1, 600 for the bicycle itself and $200 for the saddle and pedals) and that, at the [301 Or.App. 451] time of trial, a slightly older bicycle of the same model would cost over $1, 000 to purchase as a floor model. In response, defendant argued primarily that he did not intend to steal the bicycle-he claimed that he had taken it with the intention to return it to its rightful owner, who he thought might be his friend. Defendant argued secondarily that, in any event, the state had failed to establish that the bicycle was worth more than $1, 000. On the latter point, defendant offered evidence that it would cost $364 to $599 to buy the same model (and same year) of bicycle used, depending on condition ("fair" to "excellent").

         The trial court instructed the jury on both the charged crime of first-degree theft (a felony) and the lesser-included offense of second-degree theft (a misdemeanor). First-degree theft involves stolen property with a value of $1, 000 or more, while second-degree theft involves stolen property with a value of less than $1, 000 but at least $100. ORS 164.055; ORS 164.045. The jury found defendant guilty of second-degree theft.

         The court proceeded to sentencing. When the state asked that defendant be ordered to pay restitution and a compensatory fine, defendant requested a restitution hearing, which was later held. At the hearing, the state relied in part on the trial evidence to meet its burden of proof. See State v. Ixcolin-Otzoy, 288 Or.App. 103, 104, 406 P.3d 100 (2017), rev den, 362 Or. 699 (2018) (the state bears the burden to prove the prerequisites for restitution and the nature and amount of economic damages); State v. Alonso, 284 Or.App. 512, 516, 393 P.3d 256 (2017) (the state bears the burden to prove the prerequisites for a compensatory fine). However, it also produced a new witness: Sabatino, the victim's insurance claim representative. Sabatino testified, among other things, that, although he had not seen the bicycle himself, the victim had taken it to a professional bicycle shop and been told (as she reported back to him) that "there was no way to repair the bicycle" because it was "in such disarray, both from damage and the handlebars, the frame, and the mechanics of it being bent." On that basis, the insurer deemed the bicycle to have "no salvage value" and paid the victim $1, 216.45, i.e., the bicycle's replacement [301 Or.App. 452] cost ($2, 094.55), less depreciation ($378.50), less the victim's deductible ($500.00).

         At the conclusion of the restitution hearing, the court found that the victim's bicycle had been worth "approximately $1, 700" at the time of the initial theft and that it was worth "zero" when recovered by police. As for the bicycle's value when defendant took it, the court said that that was a "struggle," because it "[didn't] know exactly how the record establishes what the value of the bike was at that moment in time." Ultimately, the trial court agreed with the state's "suggested compromise *** to basically split the difference" between the original thief and defendant, with each being responsible for $850 damage, calling the result "rough justice." The court ordered defendant to pay $350 in restitution to the victim's insurer and a $500 compensatory fine to the victim.

         On appeal, defendant challenges the restitution order and the imposition of the compensatory fine. To support a restitution order, the state must prove criminal activities, economic damages, and a causal relationship between the two. State v. Akerman, 278 Or.App. 486, 489-90, 380 P.3d 309 (2016). "Those same prerequisites apply when imposing a compensatory fine under ORS 137.101." State v. Donahue, 165 Or.App. 143, 146, 995 P.2d 1202 (2000). However, unlike restitution, the amount of a compensatory fine does not have to tie to the amount of damages-if a victim incurred any economic damages, the court may order a portion of a fine imposed as a penalty to be shared with the victim. State v. Grismore, 283 Or.App. 71, 76, 388 P.3d 1144 (2016).

         Defendant argues that there is no evidence that he caused any economic damages and that, consequently, the court erred in ordering restitution and in imposing a compensatory fine. In response, the state primarily contrasts (1) defendant's testimony at trial that, when he took the bicycle, he intended to "try to make it [a] little bit nicer than it was, try to fix it up a little bit so it'd be rideable again," and (2) the insurance claim representative's testimony at the restitution hearing that, after the police recovered the bicycle, a professional bicycle shop told the victim that "there was no way to repair the bicycle" because it was "in such [301 Or.App. 453] disarray, both from damage and the handlebars, the frame, and the mechanics of it being bent." The state argues that, because defendant viewed the bicycle as repairable, it must have been less damaged when he took it than it was when the bicycle shop assessed it. In the state's words, "the evidence was sufficient to establish ...

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