State v. Gerhardt

359 P.3d 519, 273 Or. App. 592, 2015 Ore. App. LEXIS 1112, 2015 WL 5439292
CourtCourt of Appeals of Oregon
DecidedSeptember 16, 2015
Docket12P3329; A152760
StatusPublished
Cited by3 cases

This text of 359 P.3d 519 (State v. Gerhardt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gerhardt, 359 P.3d 519, 273 Or. App. 592, 2015 Ore. App. LEXIS 1112, 2015 WL 5439292 (Or. Ct. App. 2015).

Opinions

ARMSTRONG, J.

Defendant appeals an amended judgment of conviction for strangulation, ORS 163.187, challenging the trial court’s order that he pay restitution for attorney fees that the court found that the victim had incurred as a result of the strangulation. Defendant contends that the trial court erred in awarding restitution because the attorney fees were not incurred as a result of the strangulation but, rather, as a result of defendant’s persistent violation of a no-contact order that a court had entered after defendant’s arrest. We agree with defendant and reverse the restitution award.

The facts are undisputed. Defendant was arrested for strangling the victim — his wife — and was jailed as a result. While in jail, defendant was subject to a court order that barred him from contacting the victim. Defendant repeatedly violated that order, which eventually prompted the victim to hire an attorney to seek enforcement of the no-contact order and to obtain a restraining order under the Family Abuse Prevention Act (FAPA). Defendant ultimately pleaded guilty to the strangulation charge, and the victim requested a restitution award under ORS 137.106(l)(a) for, among other things, $1,880 in attorney fees that she had paid her attorney for services related to the no-contact and FAPA orders. The trial court awarded the requested attorney fees, and defendant appealed.

ORS 137.106(l)(a) is the source of a court’s authority to award restitution. It provides, as relevant:

“When a person is convicted of a crime *** that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages. * * * 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 the full amount of the victim’s economic damages as determined by the court.”

For purposes of that statute, “economic damages” is defined by ORS 31.710(2)(a):

[594]*594“‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past * * * impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”1

Under those provisions, economic damages that can be awarded as restitution include reasonable expenses necessarily incurred by a victim to redress the harm caused to the victim by a defendant’s criminal conduct.

Here, the district attorney submitted to the court a written restitution request from the victim that identified a number of expenses for which she sought restitution. In it, the victim succinctly described the basis for her request to receive restitution for the attorney fees that she had incurred:

“Attorney Fees: $1,880.00
“Hired after [defendant’s] repeated violations of the no contact order while in jail[.]
“Attorney assisted in contacting the jail to get a copy of the no contact order and release provisions, to contact the district attorney and Victim’s Assistance on the plea offer, restitution and no contact provisions, obtaining a FAPA restraining order after [defendant’s] previous violations of no contact order with no repercussions, gathering evidence of violation of no contact provisions].]”

The request was accompanied by a bill from the attorney that described the work that she had done and the time that she devoted to most of the tasks. Neither the victim nor her attorney testified at the restitution hearing.

[595]*595As noted, the trial court found that defendant’s strangulation of the victim had caused her to incur $1,880 in attorney fees. However, as the restitution request establishes, it was defendant’s repeated violation of the no-contact order that caused the victim to hire an attorney to address the violations, that is, to address defendant’s post-arrest conduct. Defendant’s commission of the crime of strangulation was a necessary predicate for all of that, but it was not sufficient to cause the victim to incur the attorney fees. In other words, it was defendant’s conduct after he committed the crime that led the victim to conclude that she needed to hire an attorney to address that conduct and, hence, caused her to incur the attorney fees.

The circumstances of this case are readily distinguishable from cases in which we have upheld restitution awards for expenses that victims have incurred to redress the harm caused to them by a defendant’s criminal conduct. For example, in State v. Pumphrey, 266 Or App 729, 338 P3d 819 (2014), rev den, 357 Or 112 (2015), we upheld an award for various expenses that the victim had incurred to address the harm caused to her by the defendant’s violations of a stalking protective order (SPO), which were the crimes for which the defendant was convicted. The defendant’s criminal conduct, viz., his violations of the SPO, caused the victim to suffer severe panic attacks, which, in turn, caused her to incur various expenses for which the trial court awarded restitution, including the cost to change the locks at the victim’s home and her phone number, the cost of a temporary residence, and lost wages for the workday that the victim devoted to getting the locks changed.

The defendant challenged the trial court’s award of those expenses on the ground that they represented expenses incurred to protect against future criminal conduct by the defendant and not to redress harm that the victim had suffered as a result of his violations of the SPO. We rejected the challenge, explaining that it was

“undisputed that defendant’s violations of the SPO caused the victim to suffer severe panic attacks and fear of defendant, and the victim testified that she changed her locks because defendant had learned her home address. Moreover, [596]*596the record also supports an inference that the safety measures the victim took helped her manage the psychological trauma caused by defendant’s crimes.”

Id. at 735-36 (emphasis omitted). In other words, the record supported a finding that the victim’s expenses were necessarily incurred to redress the harm that she had suffered as a result of the defendant’s criminal conduct. They were not expenses that the victim had incurred to address conduct by the defendant other than his criminal conduct.

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Related

State v. Gerhardt
Oregon Supreme Court, 2016
State v. Christy
383 P.3d 406 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
359 P.3d 519, 273 Or. App. 592, 2015 Ore. App. LEXIS 1112, 2015 WL 5439292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gerhardt-orctapp-2015.