State v. Stalheim , 23 Or. App. 371 ( 1975 )

POET, J.

Defendant was charged with two counts of criminally negligent homicide after an automobile accident in which two people were killed. He waived his right to a jury trial and was convicted on both counts by the court. Defendant appeals, asserting two assignments of error: first, the trial court’s denial of his motion for a judgment of acquittal, and, second, the condition of probation requiring defendant to pay through the court $2,500 at the rate of $50 per month as restitution to the man whose wife and daughter were killed in the accident, but who was not himself a victim of it. Defendant contends that since there was no judicial hearing to determine the amount he was to pay, he was deprived of property without due process of law.

We find that the first assignment of error has no merit. Although there was a conflict in testimony, there was evidence that the accident was caused by the attempt of defendant, an inexperienced driver, to pass on a blind curve in heavy traffic after consuming alcohol. The trier of fact was entitled to believe this evidence.

We turn to the second assignment of error.

Here the record at the time of sentencing indicates that the attorney for the father-husband in a civil claim against defendant, Stalheim, had been offered $20,000 by way of settlement. It is unclear whether this represented insurance policy limits or whether it had been actually received. At the sentencing hearing the prosecutor made the following statement:

“My second point is with respect to a letter I received — and the Court apparently received the original copy — from Douglas Fellows, who represents Paul Mackey, whose wife and daughter were killed as a result of the defendant’s negligence, with respect to the proposal the defendant be made to pay, as a condition of probation, a specified amount of $2,500 at the rate of $25 per month. * * *”

This is the only indication in the record of the source of the amount defendant was to pay.

In imposing the sentence the court said:

“Mr. Stalheim, would you stand, please.

“Now, Mr. Stalheim, the question here is wheth■er the court places you on probation or whether the court sends you to prison. I’ll tell you straight out that if I put you on probation, that one of the requirements of probation would be that you reimburse this family in the amount of $2,500 at the rate of $50 a month. And, if I extend probation to you on those terms, will you accept it and pay this money or not? Just tell me now, because I want to know.

“THE DEFENDANT: I don’t know about $50 a month. Mr. Fellows, the lawyer for Mr. Mackey, said $25.

“THE COURT: Well, the maximum term of probation is five years, and you couldn’t pay $2,500 in five years at the rate of $25 a month. And, if you can do anything, you ought to be able to pay $50 per month, in my judgment.

“MR. STALHEIM: All I can say is I can give it a try. Right now, I’m not working, but I’m seeking for a job.

“THE COURT: Well, you’re going to have to do better than try; you’re going to have to do it, because your freedom, as far as I’m concerned, is going to be conditioned on your paying $50 a month until $2,500 has been paid.”

Thus it is clear thát no evidence concerning the determination of the amount of unliquidated damages —or liquidated — was before the court.

ORS 137.540(10) authorizes a sentencing court to require as a condition of probation that the probationer shall:

“Make reparation or restitution to the aggrieved party for the damage or loss caused by offense [sic], in an amount to be determined by the court.”

The narrow question raised here is whether the husband and father of the deceased accident victims was “the aggrieved party” within the meaning of the statute.

This question has not yet been answered in Oregon. Conditions of probation under ORS 137.540(10) that have been approved by Oregon courts include the following: a requirement that the defendant pay to the original owner money he had embezzled, State v. Ludwig, 218 Or 483, 344 P2d 764 (1959), and a requirement that the defendant repay $2,600 which he had fraudulently received from the welfare department, State v. Foltz, 14 Or App 582, 513 P2d 1208, Sup Ct review denied (1973). In each of these cases, the “aggrieved party” was the person who had suffered direct financial loss and who was the immediate victim of the crime charged in the indictment.

The federal and the former New York probation statutes are similar to Oregon’s and have been interpreted to limit “aggrieved party.” Crimes and Criminal Procedure, 18 USC § 3651 (1970), provides that as a condition of probation the defendant

“[m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had * *

“Aggrieved party” was construed in United States v. Follette, 32 F Supp 953 (ED Pa 1940), and Annotation, 97 ALR2d 798 (1964), as part of a virtually identical statute. Act of Mar. 4, 1925, ch 521, § 1, 43 Stat 1259. The court stated that, in addition to the federal government,

“* * * the phrase ‘aggrieved party or parties’ included within its scope such persons as the owner of the contents of a letter stolen from the mail, the person defrauded by a scheme involving use of the mails, the bank from which funds have been embezzled, and the innocent person to whom a counterfeit note has been passed. Each of these persons has been directly and financially aggrieved by the criminal acts of the defendants involved.” 32 F Snpp at 955.

The court held that a surety that had bonded defendant against embezzlement was an aggrieved party when it covered funds the defendant embezzled. See also: Karrell v. United States, 181 F2d 981 (9th Cir), cert denied 340 US 891 (1950); United States v. Berger, 145 F2d 888 (2d Cir 1944), cert denied 324 US 848 (1945).

The former New York Code of Criminal Procedure § 483 authorized the court to place the defendant on probation with the condition that he

“* * * make restitution or reparation to the aggrieved parties in an amount to be fixed by the court, not to exceed the actual losses or damages caused by his offense * *

In People v. Grago, 24 Misc 2d 739, 204 NYS2d 774 (Oneida County Ct 1960), “aggrieved party” was defined :

“The aggrieved party in a criminal action can only refer to the party whose rights, personal or property, were invaded by the defendant as a result of which criminal proceedings were successfully concluded.” 204 NYS2d at 777.

The court held that the term did not include the insurer of a bank that had repaid funds the defendant had deposited after embezzling them, but did include the union from which the funds were embezzled.

The federal and New York interpretations are not binding on Oregon, but they are persuasive since the statutes are similar. In contrast, the Washington and California statutes, which have been interpreted broadly,^① are very different from Oregon’s. California Penal Code § 1203.1 (West 1970) provides that the court “may provide for reparation in proper cases * * The Washington statute, RCW 9.92.060 (1961), states that as a condition of suspension of sentence

“* * * the court may require the convicted person to make such monetary payments, on such terms as the court deems appropriate under the circumstances, as are necessary * * * (2) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question * *

Neither statute uses “aggrieved party” or indicates any intent to limit the persons to whom restitution or reparation may be ordered as long as they suffered some loss in connection with the crime. Both statutes give the sentencing court wider discretion in imposing terms of probation than the Oregon statute does. The language in cases interpreting these statutes therefore does not apply directly to the Oregon statute.

Our statute authorizes reparation or restitution to “the” aggrieved party, focusing on the person whose rights the defendant directly invaded.

We conclude that “the aggrieved party” under ORS 137.540(10) does not encompass family members of homicide victims.

In view of that conclusion we do not reach the question of whether defendant’s due process or equal protection^② rights were violated when the amount of restitution he was to make was determined as it was here.

We vacate the judgment order and remand for imposition of sentence.

① See, People v. Miller, 256 Cal App 2d 348, 64 Cal Rptr 20 (1962); People v. Alexander, 182 Cal App 2d 281, 6 Cal Rptr 153 (1960); State v. Gunderson, 74 Wash 2d 226, 444 P2d 156 (1968); and State v. Summers, 60 Wash 2d 702, 375 P2d 143 (1962).

② See, Fuller v. Oregon, 417 US 40, 94 S Ct 2116, 40 L Ed 2d 642 (1974), aff'g 12 Or App 152, 504 P2d 1393, Sup Ct review denied (1973).