State v. Hallett ( 2023 )

643
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted April 11, 2022, affirmed March 15, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHELSEA AMBER HALLETT,
Defendant-Appellant.
Deschutes County Circuit Court
17CR11790; A173560
Beth M. Bagley, Judge. (Judgment July 1, 2020)
Stephen P. Forte, Senior Judge. (Judgment February 7,
2020)
Joel C. Duran, 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.
Nicholas C. Greenfield, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Jonathan N. Schildt, Assistant Attorney General.
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
POWERS, P. J.
Affirmed.
644 State v. Hallett
POWERS, P. J.
In this criminal appeal, defendant challenges the
amount of restitution awarded by the trial court after she
pleaded no contest to one count of theft in the first degree by
receiving, ORS 164.055, for her involvement in a burglary
of the victims’ home. In a single assignment of error, defen-
dant asserts that the court erred in two respects when it
ordered her to pay $107,039.89 in restitution to the victims.
First, defendant argues that, because the scope of her no
contest plea and the stipulations at the restitution hearing
limited her criminal activities to the receipt of specified
items, the trial court erred in awarding restitution beyond
those specific items. Second, defendant contends that the
state failed to adduce sufficient evidence to prove that her
criminal activities caused the victims’ economic damages.
As explained below, we conclude that the first argument was
not preserved because defendant’s objection was not made
with sufficient particularity and further determine that,
under our standard of review, there is sufficient evidence in
the record to support a conclusion that defendant’s actions
are a but-for cause of the victims’ damages. Accordingly, we
affirm.
Because the parties are familiar with the facts of
the case as we view them under our standard of review, we
do not provide a recitation for this nonprecedential memo-
randum disposition. First, we conclude that defendant did
not preserve her contention that her plea and the stipula-
tions at the restitution hearing limited her criminal activ-
ities in a way that allowed the state and the trial court
to consider a challenge to the court’s legal authority and
respond immediately if any correction was warranted. See,
e.g., State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (out-
lining the preservation requirements); State v. Walker, 350
Or 540, 552, 258 P3d 1228 (2011) (explaining that one of
the purposes of the preservation requirement is to ensure
that the opposing party and the trial court were given
enough information “to be able to understand the conten-
tion and to fairly respond to it”). We understand defendant’s
argument on appeal to be that the trial court exceeded its
legal authority under ORS 137.106 by imposing restitution
Nonprecedential Memo Op: 324 Or App 643 (2023) 645
for pecuniary damages arising out of criminal activity for
which she was not convicted and which she did not admit.
At the restitution hearing, however, defendant neither chal-
lenged the court’s legal authority to consider the totality of
her involvement nor objected to the state’s assertion in its
trial memorandum that “her restitution obligation will be
determined by the court based on the totality of her involve-
ment in this case, notwithstanding her [no contest] plea is
to only that charge [(first-degree theft)].” Instead, defendant
presented a fact-based argument concerning the economic
damages for which she could be held responsible, which
did not preserve the argument that she now advances on
appeal. See, e.g., State v. Reyes-Castro, 320 Or App 220,
230-31, 511 P3d 1115, rev den, 370 Or 472 (2022) (reject-
ing the defendant’s argument on appeal on preservation
grounds because the argument before the trial court was
a fact-based argument, which was distinct from the argu-
ment on appeal that was focused on the legal insufficiency);
State v. Ixcolin-Otzoy, 288 Or App 103, 110, 406 P3d 100
(2017), rev den, 362 Or 699 (2018) (rejecting a restitution
challenge on preservation grounds because of the shift in
argument). Moreover, defendant does not ask us to review
for plain error. Accordingly, defendant’s first contention
is unpreserved and therefore does not provide a basis for
reversal.
Second, we reject defendant’s challenge to the suf-
ficiency of the state’s evidence of causation. ORS 137.106
requires a trial court to award restitution if the state pro-
duces sufficient evidence of “(1) criminal activities, (2) eco-
nomic damages, and (3) a causal relationship between the
two.” State v. Smith, 291 Or App 785, 788, 420 P3d 644 (2018)
(citation omitted). We review a restitution order for errors of
law and are bound by the trial court’s factual findings if
there is any evidence in the record to support them. State
v. McClelland, 278 Or App 138, 141, 372 P3d 614, rev den,
360 Or 423 (2016). In so doing, we examine the evidence in
the light most favorable to the state and determine whether
a rational factfinder, accepting all reasonable inferences,
could have found the facts necessary to support the award.
State v. Aguirre-Rodriguez, 367 Or 614, 620, 482 P3d 62
(2021).
646 State v. Hallett
ORS 137.106 requires that a defendant’s criminal
activities “be a ‘but-for’ cause of the victim’s damages.” State
v. Lobue, 304 Or App 13, 15, 466 P3d 83, rev den, 367 Or 257,
475 P3d 882 (2020); see also State v. Andrews, 366 Or 65,
76, 456 P3d 261 (2020) (explaining that ORS 137.106(1)(a)
permits an award of restitution only if “a trial court can
determine, from the record and the defendant’s conviction,
that the defendant committed the act that resulted in the
victim’s damages”). On appeal, defendant asserts that the
state did not present sufficient evidence to prove that defen-
dant’s criminal activities caused the victims’ economic dam-
ages. Specifically, defendant contends that “there is simply
nothing in the record that causally connects defendant to all
of the missing property that the [victims] claimed economic
damages for.”
Viewing the evidence in a light most favorable to
the state, we conclude that there is sufficient evidence that
defendant’s actions are a but-for cause of the victims’ dam-
ages. The record supports a finding that defendant entered
the victims’ home during the multiday crime without per-
mission; offered codefendants advice about breaking into
the large safe, which enabled access to the bulk of the stolen
property; allowed a codefendant to bring the small safe into
her home and break into it while there; and offered a market-
place and economic incentive for codefendants to steal more
property from the victims’ home. Accordingly, the trial court
did not err when it ordered defendant to pay $107,039.89 in
restitution.
Affirmed.