State v. Whiteside , 303 Or. App. 427 ( 2020 )

427
178 v. Whiteside
State 303 8,
April Or2020
App
Argued and submitted April 30, 2018, affirmed April 8, petition for review
denied August 27, 2020 (366 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
STACY SUMMER WHITESIDE,
Defendant-Appellant.
Yamhill County Circuit Court
14CR18786; A162934
464 P3d 452
Defendant appeals from a judgment of conviction for failure to perform the
duties of a driver when property is damaged, ORS 811.700 (2013). Defendant first
argues that the trial court erred by refusing to give her requested special jury
instruction, which would have allowed the jury to excuse defendant’s actions if it
found that she reasonably and honestly believed that it was impossible to act in
accordance with ORS 811.700. Defendant also argues that the court incorrectly
imposed restitution because she was entitled to the civil law defense of compara-
tive fault. Held: The trial court did not err in rejecting the requested special jury
instruction because there was no evidence to support that it was impossible for
defendant to comply with her obligations under ORS 811.700. Further, the trial
court did not err in declining to award restitution according to an apportioned
percentage of fault because ORS 811.706, the restitution statute that applies to
ORS 811.700, does not incorporate civil-liability concepts.
Affirmed.
Ronald W. Stone, Judge.
Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
POWERS, J.
Affirmed.
______________
* Egan, C. J., vice Garrett, J. pro tempore.
428 State v. Whiteside
POWERS, J.
Defendant appeals from a judgment of conviction
for failure to perform the duties of a driver when property
is damaged, ORS 811.700 (2013)—commonly referred to as
a “hit and run”—after crashing into the victim, who was
riding her bike to school.1 On appeal, defendant argues that
the trial court erred by refusing to give her requested spe-
cial jury instruction, which would have allowed the jury to
excuse defendant’s actions if it found that she reasonably
and honestly believed that it was impossible to act in accor-
dance with ORS 811.700. Defendant also challenges the
court’s restitution order by arguing that she was entitled
to the civil law defense of comparative fault and, therefore,
should be required to pay only 51 percent of the restitution
order, which would align with the trial court’s finding that
she was 51 percent responsible for causing the accident. We
reject defendant’s arguments and, accordingly, affirm the
trial court’s judgment.2
We review the refusal to give a jury instruction for
legal error and view the evidence in the light most favorable
to the party that requested the instruction. State v. Strye,
273 Or App 365, 368, 356 P3d 1165 (2015). We review res-
titution orders for legal error. State v. McClelland, 278 Or
App 138, 141, 372 P3d 614, rev den, 360 Or 423 (2016). We
recount the facts consistent with those standards.
BACKGROUND
In May 2014, the victim, a student at McMinnville
High School, was riding her bike to school. As she approached
the school, she saw a van parked by the curb in the school
parking lot. The victim attempted to pass the van from
behind and enter the sidewalk in front of the van. At that
1
ORS 811.700 (2013) is the version that was in effect at the time of the crime
in this case. That statute has since been amended several times, most recently by
Oregon Laws 2018, chapter 22, section 1. All references in this opinion are to the
2013 version.
2
Defendant also raises an unpreserved challenge to the imposition of resti-
tution. She argues that there was no evidence that the victim’s medical expenses
were reasonably and necessarily incurred. We reject that argument without
discussion.
Cite as 303 Or App 427 (2020) 429
moment, defendant, who had just dropped off her daughter
at school, pulled out and hit the victim. Defendant testified:
“I looked around and put my arm out because my signal
wasn’t working, and I looked around and made sure that
there was nobody coming in all the directions, and I didn’t
see anybody. I looked at my daughter again to make sure
she was standing over there out of the way and then I looked
again and then I started to pull out to go around and I
probably went about a foot, foot and a half and then a car
or a bike came flying beside me and hit the front bumper
side of my car.”
Seeing the victim and her damaged bike on the ground,
defendant asked the victim if she was okay. The victim said
that she was fine. The bike was visibly damaged; the bike’s
metal basket was “completely folded over” and the “front tire
was bent in.” Defendant then got out of her van and twice
asked the victim if she was okay; both times, the victim said
that she was fine. Defendant explained:
“She said she was fine, but I got out of my car to check again
and I went up to her and asked her if she was okay and she
said yes, I’m fine, and she stood up and dusted herself off
and picked up her bike and started to leave. And I said hey,
excuse me, are you sure you’re okay and she said I’m fine.
And kept walking towards the school. She kind of went like
that and kind of glanced at me a little bit, but kept going
forward. And I watched her walk to the bike rack.”
Defendant then looked around to find a place to
park, and, in that time, the victim was lost in a crowd of
other students entering the school. At no point during her
exchange with the victim did defendant offer or provide any
of the necessary information required by ORS 811.700(1)(a).3
3
ORS 811.700(1)(a) provided, in part:
“If the person is the driver of any vehicle involved in an accident that
results only in damage to a vehicle that is driven or attended by any other
person the person must perform all of the following duties:
“(A) Immediately stop the vehicle at the scene of the accident or as close
thereto as possible. * * *
“(B) Remain at the scene of the accident until the driver has fulfilled all
of the requirements under this paragraph.
“(C) Give to the other driver or passenger the name and address of the
driver and the registration number of the vehicle that the driver is driving
and the name and address of any other occupants of the vehicle.”
430 State v. Whiteside
Defendant was charged for “unlawfully and know-
ingly” violating ORS 811.700. At trial, defendant asked the
trial court to give a special jury instruction providing that,
if defendant honestly and reasonably believed that it was
impossible under the circumstances to provide the informa-
tion required by ORS 811.700(1)(a)(C), she did not have the
requisite mental state to be convicted of a hit and run. The
trial court refused to give the special instruction, and the
jury convicted defendant.
At sentencing, defendant argued that, with respect
to restitution for the victim’s damages, defendant should
have to pay the amount of damages that are commensu-
rate with her apportioned amount of fault found by the trial
court, which the court found to be 51 percent. The trial court
rejected that argument and required defendant to pay 100
percent of the victim’s damages to her bike and attendant
medical expenses resulting from the crash.4 Defendant then
initiated this appeal.
CHALLENGE TO THE REFUSAL TO GIVE
THE SPECIAL JURY INSTRUCTION
It is well established that a party “is entitled to have
the jury instruction on the law which supports his [or her]
theory of the case where there is evidence to support that
theory and the party submits an instruction that correctly
states the law.” State v. Loew, 130 Or App 370, 373, 881 P2d
837 (1994) (citation omitted); see also State v. Beck, 269 Or
App 304, 309, 344 P3d 140, rev den, 357 Or 164 (2015) (“A
jury instruction is supported by the evidence if there was
any competent evidence to support it.” (Internal quotation
marks and citation omitted.)).
At trial, defendant requested, based on State v.
Monroe, 101 Or App 379, 790 P2d 1188 (1990), the following
special jury instruction:
4
In imposing the entire amount of damages claimed on behalf of the victim,
the trial court imposed both a compensatory fine and a restitution award to an
insurance company. Defense counsel suggested that arrangement to ensure that
the victim’s family received her out-of-pocket expenses prior to the insurance
company. Defendant does not assign error to the court’s imposition of a compen-
satory fine, and we do not express an opinion on it. Notwithstanding the dis-
tinction between a compensatory fine and restitution award, we refer to those
financial obligations as restitution throughout the opinion for simplicity.
Cite as 303 Or App 427 (2020) 431
“Although the law requires that the driver of a vehicle
involved in an accident that results in damage to a vehicle
must provide to the other party the driver’s name, address,
and the registration number of their vehicle, that act cannot
be performed if it is rendered impossible because the other
vehicle did not stop and remain at the scene. Therefore, if
the defendant honestly and reasonably believed that the
other party had not stopped and remained at the scene and
that it was impossible to provide her name and address to
the other party, she would be lawfully excused from per-
forming such duty and could lawfully leave the scene.
“Thus, a defendant who honestly and reasonably believes
that it is impossible, under all the circumstances as they
exist, to perform a duty that the law requires, even if they
are mistaken in their belief, does not have the culpable
mental state necessary to make them guilty.”
The trial court denied defendant’s request because it did
not “see any evidence * * * of impossibility.” We agree. As
explained below, assuming without deciding that the
instruction was a correct statement of the law, defendant
was not entitled to the requested instruction because there
was no evidence to support it.
Defendant argues that, based on her trial testi-
mony, the jury could have found that she “honestly and rea-
sonably believed that it would be impossible to comply with
the duties required of her as the other party left the scene[.]”
That argument, however, runs contrary to defendant’s tes-
timony and the circumstances surrounding the accident.
First, defendant testified that she talked with the victim
three separate times before she watched the victim walk off
with her damaged bike and go into the school. Defendant
first asked if the victim was okay immediately after crash-
ing into her and while defendant was still in her van. The
victim said that she was okay, and defendant, according to
her own testimony, got out of her van and interacted with
the victim two more times to see if she was okay. Those facts
do not present a situation where defendant tried to convey
the required information but was prevented from doing so.
Second, the circumstances surrounding the acci-
dent did not make it impossible to convey the required infor-
mation. To be sure, defendant’s three interactions with the
432 State v. Whiteside
victim were brief. The victim and defendant’s daughter both
testified that it was approximately a minute or two before
the victim left. At no point during that time, however, did
defendant provide her name, address, or any of the other
required information before or after checking to see if the
victim was okay. Moreover, defendant did not make any
effort to comply with the statute by entering the school to
report the accident or attempt to leave the required informa-
tion on the damaged bike.
This case does not present a situation where, for
example, the victim was unconscious as a result of an acci-
dent, thereby creating a circumstance where it might have
been impossible to convey the required information.5 Nor
does this case present a scenario where the victim imme-
diately left the scene without interacting with defendant
at all. Rather, as discussed, defendant had three separate
opportunities to convey the required information before the
victim entered the school. And once the victim entered the
school, it may have been more difficult to comply with the
statute, but a higher degree of difficulty is not synonymous
with impossibility.
Accordingly, because there is no evidence to support
that it was impossible for defendant to comply with her obli-
gations under ORS 811.700, the trial court did not err in
denying her requested special jury instruction.
CHALLENGE TO RESTITUTION
To put defendant’s restitution challenge in per-
spective, we begin with a brief discussion of restitution
generally and then turn to restitution in the hit-and-run
context. Oregon has more than one restitution statute. The
legislature has enacted ORS 137.106, which is known as
the general criminal restitution statute. Under that stat-
ute, the restitution inquiry focuses on whether a crime has
5
Unlike ORS 811.705(1)(f), which involves the duties of a driver involved in
an accident resulting in an injury and that outlines what a driver should do if
the victim is unconscious or otherwise incapable of receiving the driver’s infor-
mation, ORS 811.700(1)(a) does not explicitly address what a driver must do if
the victim is unconscious or otherwise incapable of receiving information. In this
case, however, there is no evidence that the victim was incapable of receiving
information from defendant had she attempted to fulfill her statutory duties.
Cite as 303 Or App 427 (2020) 433
“resulted in” economic damages, which “is a function of two
considerations, namely, causation and foreseeability.” State
v. Gerhardt, 360 Or 629, 635, 385 P3d 1049 (2016); see also
id. at 636 (explaining that State v. Ramos, 358 Or 581, 368
P3d 446 (2016), holds that restitution may be awarded under
ORS 137.106 if the defendant’s crime “was a factual cause of
the victim’s economic damages and those damages were the
reasonably foreseeable consequence of the crime”).
The legislature has also enacted ORS 811.706,
which is a restitution statute that applies to ORS 811.700
and ORS 811.705, the “hit and run” statutes. See State v.
Hval, 174 Or App 164, 173-76, 25 P3d 958, rev den, 332 Or
559 (2001) (describing the history of ORS 811.706). ORS
811.706 provides:
“When a person is convicted of violating ORS 811.700 or
811.705, the court, in addition to any other sentence it may
impose, may order the person to pay an amount of money
equal to the amount of any damages caused by the person
as a result of the incident that created the duties in ORS
811.700 or 811.705.”
At this juncture, it is important to draw a distinc-
tion between the criminal conduct and noncriminal conduct
present in ORS 811.700. Under ORS 811.700, the criminal
conduct is not the accident itself; rather, the criminal con-
duct is the failure to provide the necessary information to
the victim of the accident. Notably, ORS 811.706 provides
restitution for the damage resulting from the accident, not
the failure to provide information. See State v. Webster, 220
Or App 531, 535, 188 P3d 329, rev den, 345 Or 318 (2008)
(explaining that the trial court’s determination to impose
accident-related restitution under ORS 811.706 “is not about
the damage caused by the defendant in committing the
crime of conviction—it is about the damage caused by the
defendant in the incident that gave rise to the defendant’s
duties under ORS 811.700”); see also Hval, 174 Or App at 178
n 4 (noting testimony from Representative Prozanski that
the purpose of ORS 811.706 “was to permit a person who
has had their car sideswiped or their fence knocked down
to recoup their restitution or their damages” (internal quo-
tation marks omitted)). Thus, one of the primary differences
between ORS 811.706 and ORS 137.106 is that the “hit and
434 State v. Whiteside
run” restitution statute provides for restitution for conduct
that is not criminalized under that statute, i.e., the accident;
whereas the general restitution statute provides for restitu-
tion for damages directly arising from the criminal conduct.
It is against that statutory backdrop that defendant
argues that she was entitled to the statutory defense of com-
parative fault. She asserts that “the legislature intended for
traditional concepts of civil liability, including comparative
fault, to apply to restitution awards under [ORS 811.706].”6
Defendant also argues that, after State v. Gutierrez-Medina,
365 Or 79, 442 P3d 183 (2019), we “must consider whether
* * * defendant would be able to assert comparative fault in
a hypothetical civil action in the same circumstances.” In
response, the state asserts that ORS 811.706 does not incor-
porate concepts of civil law and that Gutierrez-Medina does
not compel a contrary conclusion.
Defendant’s argument requires us to construe the
text, context, and any pertinent legislative history of ORS
811.706. See State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009) (outlining the familiar statutory-interpretation
framework). In prior decisions interpreting the statute, we
have explained that, “[b]y its express terms, ORS 811.706
allows a court to order payment of an amount of money
equal to ‘any damages caused by the person as a result of
the incident that created the duties’ enumerated in ORS
811.700 and ORS 811.705.” Hval, 174 Or App at 177. We have
also explained that ORS 811.706 limits the reach of any
restitution award in two important respects: “Recoverable
damages must not only have been ‘caused by’ the defendant,
but must also have been ‘as a result of the incident’ that
gave rise to obligations prescribed in ORS 811.700 or ORS
811.705.” State v. Bassett, 243 Or App 289, 294, 259 P3d 953
(2011).
6
ORS 31.600, which describes the statutory defense of comparative fault,
provides, in part:
“(1) Contributory negligence shall not bar recovery in an action by any
person * * * to recover damages for death or injury to person or property if the
fault attributable to the claimant was not greater than the combined fault
of all of the persons specified in subsection (2) of this subsection, but any
damages allowed shall be diminished in the proportion to the percentage
attributable to the claimant.”
Cite as 303 Or App 427 (2020) 435
Importantly, an award of damages under ORS
811.706 is “much narrower than the scope of the general
restitution provisions in ORS 137.106.” Hval, 174 Or App at
178; see also State v. Anderson, 280 Or App 572, 577, 380
P3d 1201 (2016) (explaining that “our conclusion in Hval—
that the remedy provided by ORS 811.706 was not a civil
remedy—did not hinge on the fact that those damages could
only be recovered by specific persons, i.e., property owners;
instead, we reached that conclusion because the statute
narrowly circumscribed what damages a trial court could
order” (citation omitted)). Damages awarded under ORS
811.706 are “liquidated and easily measurable,” and not
“speculative, uncertain, and open-ended.” Hval, 174 Or App
at 178. Finally, “ORS 811.706 does not condition the type of
restitution available under that statute on whether a defen-
dant was convicted under ORS 811.700, as opposed to ORS
811.705, so long as the defendant is convicted under either of
those statutes.” Bassett, 243 Or App at 297.
Because the parties’ arguments involve the
Supreme Court’s recent decision in Gutierrez-Medina, which
was decided during the pendency of this appeal, we turn to
that decision. The defendant in that case was ordered to pay
restitution under ORS 137.106(1), the general restitution
statute, and argued that the legislature intended to incor-
porate the civil concept of comparative fault into that statu-
tory scheme. Gutierrez-Medina, 365 Or at 82-83. The court
agreed, albeit in part, concluding that,
“the statutory defense of civil comparative fault is available
only to defendants who act with a degree of culpability for
which the common law defense of contributory negligence
would have been available. The common law defense based
on a plaintiff’s contributory negligence was not available
to a defendant who acted with a culpability greater than
what the common law considered to be ‘gross negligence’—
conduct that was either ‘wanton’ or intentional.”
Id. at 83-84. The court noted that, “[t]o reach defendant’s
desired conclusion, his argument requires us to accept his
minor premise that, in a hypothetical civil action against him
for causing the same injury, the defense of comparative fault
would be available to reduce his liability. The premise is not
sound.” Id. at 83. Before the trial court, the defendant had
436 State v. Whiteside
pleaded guilty to third-degree assault. Id. at 81. Therefore,
according to the court, “even if we assume that the legislature
intended to incorporate the civil law defense of comparative
fault into the calculation of criminal restitution under ORS
137.106, the defense would be unavailable to a defendant
who commits third-degree assault [with the mental state of
recklessness].” Id. at 84. Because the defendant admitted as
part of his plea that he “recklessly” caused serious physical
injury to the victim, his conviction “establishe[d] a degree of
culpability that, if compared to common law civil concepts
of fault, would fall within the range of culpability that rep-
resents ‘wanton’ conduct, and thus a degree of culpability for
which the victim’s negligence affords no defense.” Id. at 92.
In this case, defendant relies on Gutierrez-Medina
and urges us to utilize the same approach, “which is to con-
sider whether the defendant would be able to assert compar-
ative fault in a hypothetical civil action in the same circum-
stances.” Given the fundamental differences between ORS
811.706 and ORS 137.106, we conclude that the legislature
did not signal an intent to incorporate concepts of civil lia-
bility into ORS 811.706. Therefore, we need not consider
whether a defendant in a hypothetical civil action would be
able to assert a comparative fault defense.
The distinctions between the two restitution stat-
utes are important to consider when comparing ORS 811.706
and ORS 137.106. The Supreme Court has noted that, when
considering the interplay between the concepts of civil lia-
bility and criminal restitution, “the legislature’s cross-
reference to the definition of ‘economic damages’ applicable
in civil actions, and the legislature’s purpose in creating the
restitution procedure as a substitute for a civil proceeding,
make civil law concepts relevant to our interpretation of
ORS 137.106.” Ramos, 358 Or at 594.
As noted earlier, ORS 811.706 is different. Unlike
ORS 137.106, there is no cross-reference to a civil law defi-
nition of damages in the text or context of ORS 811.706.
Certainly, ORS 811.706 makes a reference to payment for
“any damages,” which, “as a legal term of art, evolved as a
term associated with a plaintiff’s recovery against a defen-
dant in a civil case” and “has a civil law connotation.” Ramos,
Cite as 303 Or App 427 (2020) 437
358 Or at 592-93 (citation omitted). Defendant argues, there-
fore, that because the legislature used the term “damages”
in ORS 811.706, “civil law concepts and statutes [should] pro-
vide context” to our analysis. But mere use of the term “dam-
ages” is not indicative of a broader legislative determination
to incorporate comparative fault liability into ORS 811.706.
More fundamentally, we previously have rejected
an argument that an award under ORS 811.706 is “civil in
nature” because it “has all the earmarks of a penal sanction
and all of the characteristics of a conventional award of crim-
inal restitution,” thus cutting against the notion that ORS
811.706 was intended to incorporate civil liability defenses.
Hval, 174 Or App at 180-81; see also Anderson, 280 Or App
at 577 (recognizing the conclusion in Hval that the remedy
provided by ORS 811.706 was not a civil remedy). Therefore,
without any textual indication that the legislature intended
to incorporate civil liability concepts into the hit-and-run
restitution statutory framework, we hold that defendant
cannot avail herself of the comparative fault defense found
in ORS 31.600.7 Thus, by the explicit terms of ORS 811.706,
the trial court may award restitution for “any damages
caused by the person as a result of the incident that created
the duties in ORS 811.700 or 811.705.”8 Accordingly, the trial
court did not err in declining to award restitution according
to an apportioned percentage of fault.
Affirmed.
7
The parties have not pointed us to any pertinent legislative history that
bears on the analysis. Indeed, defendant observes that “the legislative history [of
ORS 811.706] is silent on the precise issue of comparative negligence,” which is
consistent with our observation that the legislative history is sparse. See Bassett,
243 Or App at 295 & n 6.
8
To the extent that defendant argues that this construction of the statute
could result in a “windfall” to the victim, it is certainly within the legislature’s
authority, of course, to amend ORS 811.706 to explicitly cross reference the appli-
cability of ORS 31.600 or otherwise import comparative negligence concepts into
the hit-and-run restitution framework to avoid potentially incongruous results
(e.g., where one victim has damages that are subject to comparative negligence
concepts because that victim maintained a civil action against the driver and
a similarly situated victim recovers damages under ORS 811.706). That policy
choice, however, is not evident in the text and context of ORS 811.706, and it is
not for us to insert that policy choice where the legislature has not signaled its
intent to do so. See ORS 174.010 (“[T]he office of the judge is simply to ascertain
and declare what is, in terms or in substance, contained [in the construction of a
statute], not to insert what has been omitted[.]”).