State v. Gerhardt

No. 74 November 25, 2016 629
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
SCOTT B. GERHARDT,
Respondent on Review.
(CC 12P3329; CA A152760; SC S063612)
On review from the Court of Appeals.*
Argued and submitted September 20, 2016.
Keith L. Kutler, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, Paul L. Smith, Deputy Solicitor General, and Cecil
A. Reniche-Smith, Senior Assistant Attorney General.
Morgen E. Daniels, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief was Ernest G. Lannet, Chief Defender.
Erin K. Olson, Law Office of Erin K. Olson, P.C., Portland,
filed the brief for amici curiae S.G. (crime victim), National
Crime Victim Law Institute, and Oregon Crime Victims Law
Center. Also on the brief were Margaret Garvin, Portland,
and Rosemary W. Brewer, Portland.
Before, Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and Shorr, Justice
pro tempore.**
LANDAU, J.
The decision of the Court of Appeals is reversed. The res-
titution order of the trial court is affirmed.
______________
**  Appeal from Polk County Circuit Court, Monte S. Campbell, Judge. 273
Or App 592, 359 P3d 519 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
630 State v. Gerhardt
Case Summary: In a claim for restitution after defendant’s conviction for
strangling his wife, the trial court awarded the victim restitution for the attorney
fees she incurred to obtain a permanent protective order. The Court of Appeals
reversed the trial court’s decision and the state petitioned for review. Held: (1)
To justify an award of restitution for attorney fees, the defendant’s criminal con-
duct must have been a but-for cause of those fees and the fees must have been
a reasonably foreseeable consequence; and (2) because defendant had conceded
both that his conduct was a but-for cause of the victim’s attorney fees and that
attorney fees were not unforeseeable as a matter of law, the trial court correctly
awarded the victim restitution for her attorney fees.
The decision of the Court of Appeals is reversed. The restitution order of the
trial court is affirmed.
Cite as 360 Or 629 (2016) 631
LANDAU, J.
Defendant was convicted of strangling his wife. At
sentencing, the trial court awarded the victim restitution
for attorney fees that she incurred to enforce a no-contact
order that the court had previously entered while defen-
dant was in jail as well as to obtain a permanent protective
order. The issue in this case is whether those attorney fees
may be awarded as restitution under ORS 137.106(1)(a),
which authorizes restitution when a person is convicted of a
crime “that has resulted in economic damages.” The Court
of Appeals concluded that they may not be awarded and
reversed. State v. Gerhardt, 273 Or App 592, 359 P3d 519
(2015). We conclude that, because defendant concedes that
the attorney fees were caused by his conduct and were a
reasonably foreseeable result of that conduct, the trial court
did not err in awarding restitution for those fees. We there-
fore reverse the Court of Appeals.
The relevant facts are not in dispute. Defendant
was arrested and charged for strangling his wife. The trial
court entered a no-contact order under ORS 135.247(2),
which provides that, when a defendant is charged with a
crime that constitutes domestic violence, the court must
“enter an order prohibiting the defendant from contacting or
attempting to contact the victim, either directly or through
a third party, while the defendant is in custody.”
While in jail, defendant repeatedly violated the
no-contact order. The victim hired an attorney to help her
enforce the no-contact order and to obtain a permanent pro-
tective order under the Family Abuse Prevention Act, ORS
107.700 to 107.735, incurring expenses of $1,880.
Defendant ultimately pleaded guilty to the stran-
gulation charge, and the trial court ordered him to pay
restitution in the amount of $1,880 for the victim’s attor-
ney’s fees. Defendant objected to an award of restitution.
He argued that attorney fees of any sort are not the type of
damages that are contemplated under the statute authoriz-
ing an award of restitution. Defendant reasoned that ORS
137.106(1)(a) authorizes restitution for “economic damages,”
which the relevant statutes provide has the meaning given
in ORS 31.710(2)(a). That statute, in turn, defines “economic
632 State v. Gerhardt
damages” as “objectively verifiable monetary losses,” includ-
ing charges necessarily incurred for a number of specified
services. Defendant argued that, because legal services are
not among the list of services that qualify, attorney fees
are not economic damages for which restitution is available
under ORS 137.106(1)(a). The trial court rejected defen-
dant’s argument and awarded restitution in the amount of
$1,880.
Defendant appealed, arguing that the trial court
erred in awarding restitution. He offered two arguments in
support. First, he reprised his contention that attorney fees
are “not the type of damages” that may be recovered under
the statutes. Second, he argued that, even if attorney fees
are the type of damages that may be the subject of a resti-
tution award, the particular attorney fees incurred in this
case were not, because they were not incurred as a “result”
of the criminal charge of strangulation. Rather, defendant
argued, the victim’s attorney fees were incurred as a result
of defendant’s violation of the no-contact order.
The state argued that, although defendant had pre-
served his contention that attorney fees are not the sort of
damages for which restitution may be ordered, he did not
preserve his alternate contention that, even if attorney fees
may sometimes be awarded, they could not be in this case
because of an absence of a causal relationship between his
crime and the fees incurred. In any event, the state argued,
the fees were incurred as a result of defendant’s conduct in
strangling the victim.
The Court of Appeals agreed with defendant’s argu-
ment concerning the causal relationship between a crime
and economic damages that may be awarded as restitution.
The court concluded that, although defendant’s conduct in
strangling the victim “was a necessary predicate” for the
necessity of hiring an attorney, it “was not sufficient to cause
the victim to incur the attorney fees.” Gerhardt, 273 Or App
at 595. In the court’s view, “it was defendant’s conduct after
he committed the crime that led the victim to conclude that
she needed to hire an attorney,” not the crime itself. Id.
(emphasis in original). The court did not address the state’s
contention that defendant had not preserved that argument;
Cite as 360 Or 629 (2016) 633
nor did it address defendant’s argument that attorney fees
are categorically excluded as “economic damages” under the
restitution statute. Its decision did prompt a dissent, though,
which took issue with the majority’s decision to require a
“sufficient” cause in excess of “but for” causation to justify
an award of restitution. Id. at 600-04 (Flynn, J., dissenting).
The state sought review. In the meantime, this
court decided State v. Ramos, 358 Or 581, 588, 358 P3d 446
(2016). In that case, the court rejected the argument that
attorney fees are categorically excluded from restitution
awards. Id. at 602. It further held that, under ORS 137.106,
whether a crime “result[s] in” economic damage is a function
of two considerations. First, there must be factual causation.
Ramos, 358 Or at 593. Factual causation is established if
the economic damages would not have occurred but for the
defendant’s crime. Id. at 593 n 6. The court noted the possi-
bility that a different type of causation—“substantial factor”
causation—might apply, but the court reserved that question
for another day, given the nature of the parties’ arguments
in that case. Id. at 586 n 3. Second, any economic damages
awarded as restitution under ORS 137.106 must have been a
reasonably foreseeable consequence of the defendant’s crime.
Id. at 603-04. The court rejected the contention that the test
should be more demanding than reasonable foreseeability
and that, instead, the court should require that economic
damages be “direct.” Id. at 597.
Following this court’s decision in Ramos, the par-
ties in this case submitted briefs and arguments in light
of the principles set out in that opinion. For its part, the
state argues that the disposition of this case is straight-
forward. There is no dispute that, but for defendant’s act of
strangling the victim, the attorney fees would not have been
incurred, and it is equally undisputed that the incurring of
those fees was a reasonably foreseeable consequence of his
crime. Under Ramos, the state concludes, the award of res-
titution was proper.
Defendant does not contest that the attorney fees
were incurred, at least in a but-for sense, as a result of his
crime. Nor does he contend that, as a matter of law, the fees
were not a reasonably foreseeable consequence of that crime.
634 State v. Gerhardt
Instead, defendant argues that the court should interpret
ORS 137.106 to require more than but-for causation. As
defendant sees it, Ramos “left open” the type of causation
that the statute contemplates. Defendant proposes that
the court address the issue in this case and conclude that
restitution is appropriate only if his crime is “sufficient in
itself to cause the victim’s damages,” that is, only if no other
causal factor may contribute to the damages. In this case,
defendant argues, his crime of strangling the victim was not
the sole cause of her attorney fees; rather, it was his subse-
quent conduct of violating the no-contact order that caused,
at least in part, the victim to incur the fees.
Defendant further argues that, if the court rejects
his sole-cause proposal, it should adopt as an alternative
requirement that the state must prove that, “in addition
to being a ‘but-for’ cause of the damages, the criminal con-
duct was a substantial factor in bringing about the victim’s
harm.” Defendant, however, uses the term “substantial fac-
tor” to suggest what he calls a “ ‘but-for’-plus” test. As defen-
dant uses the term, “substantial factor” causation would
require that, when a crime is one of multiple causes of eco-
nomic damages, that crime must be a relatively more signif-
icant component in the series of causal events. In this case,
he argues, although his crime may have been a but-for cause
of the victim’s attorney fees, the more significant link in the
chain of causation was his subsequent conduct in violating
the no-contact order.
At the outset, we are confronted by a problem of
preservation. State v. Wyatt, 331 Or 335, 346-47, 15 P3d 22
(2000) (appellate courts always have obligation to address
preservation). In this case, none of the arguments that defen-
dant asserts to us were asserted to the trial court. As we
have noted, the sole argument that defendant offered to the
trial court was that attorney fees of any sort categorically
are not the type of economic damages that may be the sub-
ject of a restitution award. He made no mention of causation
or foreseeability. Had defendant raised those matters, the
state might have made a different record, which could have
obviated the need for any appeal. Only in the most general
sense did defendant put in issue whether the attorney fees
Cite as 360 Or 629 (2016) 635
in this case were a “result” of his criminal conduct within
the meaning of ORS 137.106.
But we need not determine whether that was suffi-
cient to preserve his claim, however. Even assuming that it
was, defendant’s concessions foreclose the relief he seeks.
As we have explained, under Ramos, whether a crime
has “resulted in” economic damages under ORS 137.106 is a
function of two considerations, namely, causation and fore-
seeability. We begin with causation. Causation is satisfied if
the crime is a but-for cause of the economic damages. Ramos,
358 Or at 593. And defendant has conceded that his crimi-
nal act was a but-for cause of the victim’s attorney fees. To
the extent that defendant argues for a standard requiring a
more direct causal connection, we rejected that argument in
Ramos. Id. at 597.
Defendant’s argument that we should employ
a “substantial factor” test likewise is unavailing. As we
understand it, defendant uses the term “substantial factor”
in a way that is foreign to the ordinary use of the term and
to the manner in which we referred to it in Ramos. When we
use the term “substantial factor” in the causation context, it
refers to cases in which “the negligence of multiple tortfea-
sors combines to produce harm,” and each tortfeasor may be
liable as a factual cause of the injury. Lasley v. Combined
Transport, Inc., 351 Or 1, 6, 261 P3d 1215 (2011). Defendant
uses the term in a different sense, one that involves weigh-
ing the relative role of different causes in a chain of events
and evaluating the extent to which the existence of the other
causes attenuates the connection between an initial crime
and resulting economic damages. As shown by our discus-
sion of the issue in Ramos, that is not a problem of causation;
rather, it is addressed in the consideration of the foreseeabil-
ity of the damages. 358 Or at 597-99.
We turn, then, to foreseeability. Foreseeability ordi-
narily poses a question of fact. See Piazza v. Kellim, 360 Or
58, 69-70, 377 P3d 492 (2016) (“The concept of foreseeability
embodies a prospective judgment about a course of events; it
‘therefore ordinarily depends on the facts of a concrete situa-
tion’ and, if disputed, is a jury question.” (Quoting Fazzolari
636 State v. Gerhardt
v. Portland School Dist. No. 1J, 303 Or 1, 4, 734 P2d 1326
(1987).)). In this case, as we have noted, defendant does not
argue that, on the record before it, the trial court could not
find that the victim’s attorney fees were a foreseeable conse-
quence of his crime. In light of the concession, we need not
address further that component of the analysis.
In short, Ramos holds that restitution may be
awarded under ORS 137.106 if defendant’s crime was a
factual cause of the victim’s economic damages and those
damages were the reasonably foreseeable consequence of
the crime. In this case, defendant concedes that his crime
was a but-for cause of the victim’s attorney fees and that
those fees were a reasonably foreseeable consequence of that
crime. Consequently, the trial court did not err in awarding
restitution, and the Court of Appeals erred in holding to the
contrary.
The decision of the Court of Appeals is reversed.
The restitution order of the trial court is affirmed.