State v. Venable ( 2021 )

235
Submitted September 2, affirmed December 8, 2021, petition for review denied
February 24, 2022 (369 Or 338)
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN CHARLES VENABLE,
aka Ryan Venable,
Defendant-Appellant.
Multnomah County Circuit Court
18CR03774; A172781
502 P3d 250
In this criminal appeal, defendant contests the trial court’s imposition of
restitution for certain ride-sharing app driver fees assessed to the victim fol-
lowing defendant’s theft of the victim’s cellphone. On appeal, defendant argues
that those ride-sharing app driver fees were not a reasonably foreseeable conse-
quence of stealing a cellphone and that the fees were not necessarily incurred by
the victim. Held: The Oregon restitution statute allows a trial court to impose
restitution in cases where there was criminal activity, economic damage, and a
causal relationship between the two. In this case, there was sufficient evidence
in the record for the trial court to conclude that the victim necessarily incurred
the driver fees due to the theft of his cellphone. The pervasive nature of modern
cellphones, coupled with the breadth and depth of access to a person’s life avail-
able through such phone, means that a broad range of harms are reasonably fore-
seeable consequences of criminal activity involving another’s cellphone. In this
case, the driver fees were of the same general kind of harm that is a reasonably
foreseeable consequence of depriving a person of their cellphone. Therefore, the
trial court did not err by imposing restitution.
Affirmed.
Leslie M. Roberts, Judge.
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.
Affirmed.
236 State v. Venable
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 cer-
tain “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 P3d 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 support-
ing 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 P3d 83, rev den, 367
Or 257 (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.
Cite as 316 Or App 235 (2021) 237
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. 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 P3d 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 P3d 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 par-
ticular security measure as a result of defendant’s robbery
of a pharmacy. Id. at 528-29. 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.
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 sub-
ject 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.
Turning to the causal relationship, as the Oregon
Supreme Court explained, “[w]hen determining causation, a
1
Although the trial court did not make an explicit finding as to whether B’s
expenses were necessarily incurred, we assume that the court resolved that issue
consistent with the imposition of restitution. Lobue, 304 Or App at 16.
238 State v. Venable
trial court must determine whether there is a ‘but-for’ con-
nection 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. “When a statute does not impose criminal
responsibility for the type of harm that occurred, ‘reason-
able foreseeability is a limiting concept that a court must
consider in deciding whether to award the particular dam-
ages sought.’ ” State v. Alonso, 284 Or App 512, 519, 393 P3d
256 (2017) (quoting State v. Ramos, 358 Or 581, 596, 368
P3d 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 foreseeabil-
ity” would make the relationship between the criminal con-
duct and the economic damages “too attenuated to be recov-
erable.” Ramos, 358 Or at 596-97.
The longstanding test to determine whether that
relationship is too attenuated to support recovery of dam-
ages is “whether a reasonable person in the defendant’s posi-
tion would have foreseen that someone in the victim’s posi-
tion could reasonably incur damages of the same general
kind that the victim incurred.” Id. at 597.
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
2
Third-degree theft requires an act that deprives another of property. See
ORS 164.015 (defining theft); ORS 164.043(1)(b) (limiting third-degree theft to
property value of less than $100). “Property” as defined for purposes of third-
degree theft “means any article, substance or thing of value, including, but not
limited to, money, tangible and intangible personal property, real property,
choses-in-action, evidence of debt or of contract.” ORS 164.005(5). Neither side
argued that the Lyft and car rental fees were “property” within the meaning of
that provision.
Cite as 316 Or App 235 (2021) 239
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(emphasis added).
We accepted as reasonably foreseeable the relation-
ship 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. The facts in Buswell
trace a foreseeable causal chain between the criminal con-
duct (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.
Similarly, we concluded that lost wages incurred by
family members to give victim impact statements at a sen-
tencing hearing were reasonably foreseeable consequences
of the defendant’s first-degree manslaughter criminal con-
duct. State v. Skeen, 309 Or App 288, 293-94, 481 P3d 402
(2021). Even though the sentencing hearing occurred more
than four years after the killing, those lost wages were
not, as a matter of law, unforeseeable. Id. Although Skeen
demonstrated a far longer time between the criminal con-
duct and the economic damages than Buswell, there was
sufficient directness in the logical relationship between the
two to support imposition of restitution.
Mobile phones, particularly the smart phones required
to drive for Lyft, are “a pervasive and insistent part of daily
life.” Riley v. California, 573 US 373, 385, 134 S Ct 2473,
189 L Ed 2d 430 (2014); see State v. Mansor, 363 Or 185,
201-02, 421 P3d 323 (2018) (discussing Riley in context of
Oregon law). Our phones present an unparalleled access to
our lives and to our livelihoods. Beyond the personal infor-
mation stored on the device, they can provide maps to a per-
son’s home, access their bank accounts, health records, and
other sensitive personal information. Riley, 573 US at 395-
96. And beyond the data stored or accessible through the
device, the device itself serves as a primary communication
device for many people or access to the tools of their trade.
240 State v. Venable
The breadth and depth of access to a person’s life that a
mobile phone represents, coupled with the pervasive nature
of the devices, means that the theft of a cellphone calls to
mind a wide array of potential damage. Accordingly, it is not
per se unreasonable for a factfinder to conclude that depriv-
ing another of that device could entail the “general kind” of
damages—particularly in a time period following the theft
when replacement of the device might not reasonably be
expected—such as an inability to access one’s work informa-
tion or credentials that could be stored on the phone. Thus,
while a trial court, acting as factfinder in assessing restitu-
tion, is not obligated to find causation in such instances, we
cannot say, as a matter of law, that the specific harms of Lyft
and rental car fees incurred as a result of stealing a person’s
mobile phone are outside the general kind of foreseeable
damages. See Jennewein v. MCIMetro Access Transmission
Services, 308 Or App 396, 402, 481 P3d 939 (2021) (“We have
emphasized that ordinarily, foreseeability is a fact question
* * *.” (Internal quotation marks and brackets omitted.)).
In sum, we cannot conclude that, as a matter of law,
the Lyft fees or rental car charges in the days following the
theft were outside the spectrum of damages that may rea-
sonably follow from stealing a person’s mobile phone. Since
there is evidence in the record that supports each of the
prerequisites needed to impose restitution—criminal con-
duct, economic damages, and causal relationship—the trial
court’s order so doing was not erroneous.
Affirmed.