and submitted August 23, 2019
Multnomah County Circuit Court 17CR64424; David F. Rees,
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
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.
Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi,
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.
Or.App. 449] AOYAGI, J.
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.
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
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.
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."
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."
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").
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
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
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.
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).
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 ...