State v. Roskelley ( 2024 )

360 November 27, 2024 No. 842
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CALVIN THOMAS ROSKELLEY,
Defendant-Appellant.
Linn County Circuit Court
18CR26359; A177808
Thomas McHill, Judge.
Argued and submitted January 25, 2024.
Carla E. Edmondson, 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 Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
Cite as 336 Or App 360 (2024) 361
362 State v. Roskelley
EGAN, J.
In this criminal case, defendant appeals from a
supplemental judgment imposing restitution, following his
convictions for recklessly endangering another person and
reckless driving. In a single assignment of error, defendant
argues that the trial court erred in imposing restitution,
because the damages sought were not the result of the crim-
inal conduct for which he was convicted. He further argues
that the victim’s settlements with defendant’s insurance car-
rier and her workers’ compensation carrier, SAIF, worked
as a bar to the request for restitution. Finally, he contends
that the state failed to prove that the economic damages for
which the state seeks restitution were reasonably incurred.
The state disagrees with each of defendant’s legal
challenges to the availability of restitution but concedes
that the evidence is insufficient to establish that a portion of
the expenses for which it sought restitution were reasonable
and necessary. However, the state argues that the error was
not preserved and, further, that any error was harmless,
because restitution was not actually awarded for those inad-
equately established expenses.
We review a trial court’s legal conclusions regard-
ing restitution for legal error. State v. Benz, 289 Or App 366,
368, 409 P3d 66 (2017). In so doing, we are bound by the
trial court’s findings of fact if they are supported by any
evidence in the record. State v. Lobue, 304 Or App 13, 16,
466 P3d 83, rev den, 367 Or 257 (2020). We recount the facts
in accordance with that standard. State v. Riverman, 320
Or App 388, 389, 513 P3d 13 (2022).
I. THE FACTS
A. The Collision
RF was driving for work when she was struck from
behind by defendant as he was attempting to pass her and
other cars. Defendant’s car slammed into RF’s car, causing
the car to spin off the road and into a ditch, injuring RF.
B. Medical Care and Wage Loss
Emergency responders “extricate[d]” RF from her
car before transporting her to the hospital. She sustained
Cite as 336 Or App 360 (2024) 363
numerous injuries, including a broken arm that required
reconstructive surgery using plates and screws, bruises,
and scratches, “a large amount of fluid collection” in her
thigh, and permanent nerve damage that caused her daily
pain. Because those injuries occurred while RF was on the
job, SAIF paid her medical expenses at the rate provided
under the Workers’ Compensation Law fee schedule.
C. The Settlement and the Workers’ Compensation Claim
RF reached a settlement of $100,000 with defen-
dant’s automobile insurance carrier. SAIF approved and
received a percentage of the settlement, as required under
the workers’ compensation statutes. SAIF’s portion of the
settlement was $44,389.11. SAIF also entered into a type of
settlement, a claim disposition agreement (CDA), with RF,
pursuant to which it paid her additional benefits that had
not been recovered from defendant’s insurer.
SAIF’s claims adjuster emailed RF’s attorney
explaining that the settlement distribution did “not fully
reimburse” SAIF and, further, that “SAIF retains all rights
to collect any criminal restitution we may be awarded.”
D. The Criminal Trial and Restitution Claim
As a result of the accident involving RF, defendant
was charged with several offenses. SAIF’s claim of res-
titution arose out of defendant’s convictions of two counts
of recklessly endangering another person and one count of
reckless driving. Defendant was also charged with assault
in the fourth degree but was acquitted of that offense.
ORS 137.106(1)(a) provides, in part:
“When a person is convicted of a crime * * * that has
resulted in economic damages, the district attorney shall
investigate and present to the court * * * evidence of the
nature and amount of the damages.”
ORS 137.106(2)(a) provides:
“If the court finds from the evidence presented that a
victim suffered economic damages, in addition to any other
sanction it may impose, the court shall enter a judgment
or supplemental judgment requiring that the defendant
pay the victim restitution in a specific amount that equals
364 State v. Roskelley
the full amount of the victim’s economic damages as deter-
mined by the court.”
Under ORS 137.106, an award of restitution requires three
prerequisites: (1) criminal activities; (2) economic dam-
ages; and (3) a causal relationship between the two. State v.
Andrews, 366 Or 65, 69, 456 P3d 261 (2020).
At sentencing, the state informed the trial court
that it would request restitution to SAIF for workers’ com-
pensation benefits paid to RF for which SAIF had not been
reimbursed through the third-party settlement. Defense
counsel objected, arguing that, because the jury had acquit-
ted defendant of the assault count, there was no “nexus” to
support restitution for RF’s injuries. Counsel also argued
that restitution was precluded by RF’s settlement of her
claim with defendant’s insurer. The trial court made a find-
ing that causation existed for restitution and that RF suf-
fered damages of “an amount which will be determined by a
supplemental judgment after a hearing within 90 days.”
At the restitution hearing, the state sought “restitu-
tion for a balance that is left on a SAIF claim of $8,102.81.”
The claims adjuster for SAIF testified that that amount repre-
sented a portion of the workers’ compensation benefits that the
third-party settlement distribution from defendant’s insurer
did not cover. Expenses that SAIF incurred but that were not
recovered from its portion of the settlement proceeds included
payments for RC’s medical benefits, attorney fees and costs,
and other work-related benefits. Defendant objected to resti-
tution and renewed his arguments that SAIF’s receipt of a
portion of RF’s civil settlement from defendant’s insurer pre-
cluded restitution and that the outstanding balance included
non-economic damages not collectable as restitution. The trial
court took the matter under advisement and issued a letter
opinion granting the state’s restitution request in part.
In its letter opinion, the trial court rejected defen-
dant’s argument that SAIF’s approval of RF’s settlement
barred recovery of restitution. But the trial court concluded
that restitution of the entire $8,102.81 was not warranted,
and reduced the award by $3,250.00, which the court
attributed to attorney fees, concluding that the record did
not establish “that the attorney fees charged by [RF’s legal
Cite as 336 Or App 360 (2024) 365
counsel] were reasonable and necessary.” The trial court
then noted that defendant did not challenge SAIF’s conten-
tion that it “suffered economic damage in payment of the
medical bills,” and awarded $4,852.81 as the portion of the
restitution request related to those bills.
II. ANALYSIS
On appeal, defendant challenges the imposition of
$4,852.81 as restitution to SAIF on three grounds: First,
he contends that the trial court erred in imposing restitu-
tion for RF’s injuries based on his conviction for recklessly
endangering another person. Second, he contends that RF’s
third-party settlement with defendant’s insurer precluded
SAIF from obtaining restitution for benefits it paid on behalf
of RF. Finally, defendant contends that the state failed to
prove that SAIF incurred reasonable and necessary eco-
nomic damages.
A. Reckless Endangerment Conviction as a basis for
Restitution
Defendant contends that the trial court lacked
the authority to find him responsible under the restitution
statute, because the “jury resolved the question of whether
defendant was at fault for [RF’s] injuries when it acquitted
him of fourth-degree assault.” Defendant concedes that the
trial court has the authority to engage in independent fact-
finding to determine the cause of a victim’s economic damag-
es—“that is, the relationship between a defendant’s criminal
activities and the economic damages suffered by the victim.”
Andrews, 366 Or at 70. But he points out that the trial court
has no authority to determine “the criminal act that defen-
dant committed.” State v. Carson, 238 Or App 188, 192, 243
P3d 73 (2010). In essence, defendant argues that the economic
damages suffered by RF did not arise out of the offense of
reckless endangerment for which he was convicted.
The state responds that a finding by a jury that
defendant did not cause RF’s injuries by fourth-degree
assault did not preclude the trial court from finding that
defendant’s reckless conduct caused defendant’s damages.
The state is correct that in determining restitution, “the
trial court may consider any evidence that it ordinarily
366 State v. Roskelley
would at sentencing hearing.” State v. Kirkland, 268 Or App
420, 425, 342 P3d 163 (2015) (quoting State v. Sigman, 141
Or App 479, 483, 919 P2d 45 (1996)).
Defendant argues that there is no nexus between
his conviction for reckless endangerment and RF’s eco-
nomic damages. The state responds that defendant’s con-
duct underlying the conviction of reckless endangerment
resulted in the actual harm of defendant’s collision with the
victim. We have held that where the evidence shows that
where harm is caused by a defendant’s recklessness in driv-
ing related to unsafe passing, restitution is appropriate.
State v. Zuniga, 288 Or App 742, 750, 407 P3d 961 (2017).
Here, the trial court expressly found that defendant’s reck-
lessness in driving caused RF’s injuries and her economic
damages subject to restitution. We are bound by the trial
court’s findings of fact if they are supported by any evidence
in the record, Lobue, 304 Or App at 16, and they are. Thus,
we reject defendant’s argument that the reckless endanger-
ment conviction could not support the restitution award.
B. Third-Party Settlement as a Bar to Restitution
Citing State v. Rodriguez, 88 Or App 429, 431, 745
P2d 811 (1987), rev den, 305 Or 577 (1988), defendant posits
that, because “restitution is limited to losses a victim could
recover as special damages in a civil action, an agreement
upon settlement that would preclude a civil action operates
as a bar to further restitution.” The state responds that
Rodriguez is distinguishable, in that the victim’s insurer
in Rodriguez had accepted payment from the defendant’s
insurer as “full reimbursement” for its damages. Id. The
state is correct. In the case at hand, SAIF provided no such
release for the damages it incurred as a result of defen-
dant’s criminally reckless conduct. Indeed, SAIF specifi-
cally reserved its “rights to collect any criminal restitution
we may be awarded.” While SAIF approved the settlement
under ORS 656.593,1 that approval did not amount to an
acceptance of the settlement as payment in full.
1
As relevant to this case, ORS 656.593 reads, in part:
“(1) If a worker or the beneficiaries of the worker elect to recover dam-
ages from an employer or third person, the worker or beneficiaries shall give
notice of the election to the paying agency by personal service or by registered
Cite as 336 Or App 360 (2024) 367
Thus, the trial court retained authority to make
findings supported by the evidence and to award restitution
that reasonably follows from those findings, notwithstand-
ing SAIFs approval and “so long as the defendant is credited
for amounts previously paid.” State v. Thompson, 138 Or App
247, 254 n 3, 908 P2d 329 (1995). We reject defendant’s con-
tention that the third-party settlement barred restitution.
C. Reasonableness and Necessity of SAIF’s Economic
Damages and Harmless Error
There were two types of expenditures not covered
by the third-party settlement for which the state sought res-
titution: (1) medical bills that SAIF paid on RF’s behalf and
(2) other claim-related payments, which included payments
for RF’s workers’ compensation attorney’s fees. The claim-re-
lated payments were part of a CDA between RF and SAIF,
in which SAIF agreed to pay RF $9,750 for her nonmedical
or certified mail. * * * The proceeds of any damages the worker or beneficia-
ries recover from [a] third person are subject to a lien of the paying agency
for the paying agency’s share of the proceeds as set forth in this section. * * *
The total proceeds must be distributed as follows:”(a) Costs and attorney fees
incurred must be paid, and the attorney fees may not exceed the advisory
schedule of fees established by the Workers’ Compensation Board for such
actions.
“(b) The worker or the beneficiaries of the worker must receive at least
33-1/3 percent of the balance of the recovery.”(c) The paying agency must
be paid and retain the balance of the recovery, but only to the extent that
the paying agency is compensated for the paying agency’s expenditures for
compensation, first aid or other medical, surgical or hospital service, and
for the present value of reasonably expected future expenditures the paying
agency makes for compensation and other costs of the worker’s claim under
this chapter. *** Other costs *** include assessments for the Workers’ Benefit
Fund and any compensation that may become payable under ORS 656.273
(Aggravation for worsened conditions) or 656.278 (Board has continuing
authority to alter earlier action on claim).”(d) The balance of the recovery
must be paid to the worker or the beneficiaries of the worker forthwith. The
board shall resolve any conflict as to the amount of the balance that the pay-
ing agency may retain.
“(2) The amount the worker or the beneficiaries of the worker retain
must be in addition to the compensation or other benefits to which the worker
or beneficiaries are entitled under this chapter.
“(3) A claimant may settle any third party case with the approval of the
paying agency, in which event the paying agency may accept a share of the
proceeds that is just and proper and the worker or the beneficiaries of the
worker must receive the amount to which the worker would be entitled for a
recovery under subsections (1) and (2) of this section. The board shall resolve
any conflict as to what may be a just and proper distribution.”
368 State v. Roskelley
workers’ compensation benefits and $3,250 in attorney fees.
The state sought restitution for both types of expenditures.
Defendant contends, and the state concedes, that
the state did not present sufficient evidence of the reason-
ableness and necessity of the second type of payments—
claim-related payments by SAIF to RF pursuant to the
CDA. But the state contends that defendant did not preserve
the asserted error and, further, that any error is harmless.
We conclude that the issue was preserved by defen-
dant but that, as the state argues, any error by the trial
court in ordering restitution was harmless. The record shows
that the awarded restitution was not based on amounts paid
under the CDA, but for medical expenses that SAIF covered
outside of the CDA. There is no argument by defendant that
the state did not establish that those amounts were reason-
able or necessary.2 Thus, defendant’s successful argument
about the inadequacy of evidence on the reasonableness and
necessity of payments made under the CDA is, at best, a
pyrrhic victory. Accordingly, we affirm the supplemental
judgment’s award of restitution.
Affirmed.
2
We note that under ORS 656.236, RF retains the right to lifetime medical
care for her extensive and severe injuries, even after signing a CDA. Furthermore,
the legislature deems the rate paid under Oregon’s medical service fee schedule
for workers’ compensation injuries to be presumptively reasonable in personal
injury protection claims. See ORS 742.525(1)(b) (providing that PIP claimants
shall be charged “an amount that does not exceed the fee schedules for medical
services published pursuant to ORS 656.248”). Arguably, by analogy, the pay-
ment of post-CDA bills by SAIF at the rate established for workers’ compensation
claims would be presumptively reasonable. But we need not resolve that issue in
this case.