State v. Riekens

                                       447

Argued and submitted August 23; supplemental judgment reversed, remanded
 for resentencing, otherwise affirmed December 18, 2019; petition for review
                      allowed May 27, 2020 (

)
                        See later issue Oregon Reports


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    RONALD ROY RIEKENS,
                     aka Ronald Roy Reikens,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR64424; A167148
                                   

     Defendant challenges an order requiring him to pay restitution and a compensatory fine in connection with a conviction for second-degree theft. Someone
other than defendant stole the victim’s bicycle from a garage, damaged it, and left
it leaning against some shrubs. Defendant found the bicycle and took it. Three
days later, police recovered the bicycle from defendant. Defendant was convicted
of second-degree theft, and the court held a restitution hearing. Ultimately, the
court found that the bicycle had lost $1,700 in value between the time that it
was taken from the garage and the time that police recovered it and, because
the record did not establish the bicycle’s value at the time that defendant took it,
divided that amount equally between defendant and the original thief as “rough
justice.” On that basis, the court ordered defendant to pay $350 in restitution and
a $500 compensatory fine (a total of $850, which is half of $1,700). On appeal,
defendant argues that the state failed to prove that he caused any economic damages while he possessed the bicycle. The state argues that there is circumstantial
evidence to support at least the compensatory fine. Held: The trial court erred
as to both restitution and the compensatory fine, because the record does not
support a nonspeculative inference that there was a causal relationship between
defendant’s criminal activities and the victim’s economic damages.
     Supplemental judgment reversed; remanded for resentencing; otherwise
affirmed.



    David F. Rees, Judge.
   Mark Kimbrell, 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.
   Philip Michael Thoennes, Assistant Attorney General,
argued the cause for respondent. On the brief were Ellen F.
448                                        State v. Riekens

Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jeff J. Payne, Assistant Attorney General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  AOYAGI, J.
   Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
  Tookey, J., concurring in part, dissenting in part.
Cite as 

 (2019)                                              449

           AOYAGI, J.
         A jury convicted defendant of second-degree theft,
ORS 164.045, for unlawfully taking a bicycle that another
person had stolen from the victim several days earlier, damaged, and left leaning against some shrubs. At sentencing,
the trial court ordered defendant to pay $350 in restitution
and a $500 compensatory fine. On appeal of the resulting
supplemental judgment, defendant challenges that ruling,
arguing that the state failed to prove that he caused any
economic damages. The state responds that, although it
is undisputed that the original thief damaged the bicycle,
there was circumstantial evidence that defendant caused
additional damage to the bicycle while it was in his possession and that such evidence was sufficient to support the
order. We agree with defendant and, accordingly, reverse.1
          We review a restitution order for legal error and are
bound by the trial court’s factual findings if they are supported by “any evidence in the record.” State v. McClelland,

, 

, rev den, 

(2016). In determining the sufficiency of the evidence to support a restitution order, we view the evidence in the light
most favorable to the state. State v. Kirkland, 

, 

 (2015). As for compensatory fines,
“[w]hether a trial court erred in imposing a compensatory
fine is a question of law,” and “the dispositive question is
whether the record … demonstrates that the trial court
imposed a compensatory fine in the absence of supporting
evidence.” State v. Neese, 

, 

 (2009), rev den, 

 (2010). We state the facts
in accordance with the standard of review, also noting evidence relevant to the parties’ respective trial theories where
it is significant to our discussion.
         In fall 2017, someone stole the victim’s cyclocross
bicycle (a 2014 Focus Mares AX 2.0) from a garage where
she stored it. It is undisputed that the person who initially

    1
      Defendant separately assigns error to the judgment of conviction, arguing
that the Sixth and Fourteenth Amendments to the United States Constitution
require unanimous jury verdicts and that the trial court erred in giving the jury
a nonunanimous-verdict instruction and in accepting a nonunanimous verdict.
We reject those assignments of error without written discussion.
450                                             State v. Riekens

stole the bicycle was not defendant. Three days after the
initial theft, defendant saw the bicycle leaning against
some shrubs in someone’s yard. The bicycle looked expensive, so defendant figured it was stolen, and according to his
trial testimony, defendant thought that it might belong to a
friend of his who had had a similar-looking bicycle stolen a
few days earlier. Defendant decided to take the bicycle and,
after a brief conversation with the homeowner, did so.
          Defendant had the bicycle in his possession for
three days. Defendant testified that, during that time, he
was waiting to hear back from his friend and “was trying
to work on fixing [the bicycle] up and trying to clean it up.”
Defendant explained that the bicycle was “fairly tore up”
when he found it. Asked, “how so?” defendant responded,
“There was paint splattered all over it. It was missing one
cable. Both tires were flat. One of the shift levers was—the
mount was busted loose near the handlebars.” Asked what
the purpose of trying to fix the bicycle was, defendant said,
“I figured that if it was my friend’s or if it was bad, I’d try to
make it [a] little bit nicer than it was, try to fix it up a little
bit so it’d be rideable again.”
         On the third day that the bicycle was in defendant’s
possession, someone spotted it chained to defendant’s trailer
(along with another bicycle) and told the victim, who called
police, who recovered it from defendant. The police officer
who recovered the bicycle testified at trial that, when he
recovered it, the bicycle was in “reasonably decent condition” and that he did not believe that it was “beat up, dented,
destroyed,” although he added the caveat that he was “not a
bike guy.”
         Defendant was charged with one count of first-degree theft, ORS 164.055(1), based on his having “unlawfully and knowingly commit[ted] theft of personal property,
of the value of $1,000 of more.” At trial, the state put on
evidence that defendant had stolen the bicycle from the yard
where he found it and that it was worth over $1,000. The
state’s evidence on the latter point included the victim’s testimony that she had paid about $1,800 three years earlier
to buy the bicycle new (approximately $1,600 for the bicycle
itself and $200 for the saddle and pedals) and that, at the
Cite as 

 (2019)                             451

time of trial, a slightly older bicycle of the same model would
cost over $1,000 to purchase as a floor model. In response,
defendant argued primarily that he did not intend to steal
the bicycle—he claimed that he had taken it with the intention to return it to its rightful owner, who he thought might
be his friend. Defendant argued secondarily that, in any
event, the state had failed to establish that the bicycle was
worth more than $1,000. On the latter point, defendant
offered evidence that it would cost $364 to $599 to buy the
same model (and same year) of bicycle used, depending on
condition (“fair” to “excellent”).
        The trial court instructed the jury on both the
charged crime of first-degree theft (a felony) and the lesser-included offense of second-degree theft (a misdemeanor).
First-degree theft involves stolen property with a value of
$1,000 or more, while second-degree theft involves stolen
property with a value of less than $1,000 but at least $100.
ORS 164.055; ORS 164.045. The jury found defendant guilty
of second-degree theft.
         The court proceeded to sentencing. When the state
asked that defendant be ordered to pay restitution and a
compensatory fine, defendant requested a restitution hearing, which was later held. At the hearing, the state relied
in part on the trial evidence to meet its burden of proof.
See State v. Ixcolin-Otzoy, 

, 104, 

 (2017), rev den, 

 (2018) (the state bears the
burden to prove the prerequisites for restitution and the
nature and amount of economic damages); State v. Alonso,

, 

 (2017) (the state bears
the burden to prove the prerequisites for a compensatory
fine). However, it also produced a new witness: Sabatino,
the victim’s insurance claim representative. Sabatino testified, among other things, that, although he had not seen
the bicycle himself, the victim had taken it to a professional
bicycle shop and been told (as she reported back to him) that
“there was no way to repair the bicycle” because it was “in
such disarray, both from damage and the handlebars, the
frame, and the mechanics of it being bent.” On that basis,
the insurer deemed the bicycle to have “no salvage value”
and paid the victim $1,216.45, i.e., the bicycle’s replacement
452                                            State v. Riekens

cost ($2,094.55), less depreciation ($378.50), less the victim’s
deductible ($500.00).
         At the conclusion of the restitution hearing, the
court found that the victim’s bicycle had been worth “approximately $1,700” at the time of the initial theft and that it was
worth “zero” when recovered by police. As for the bicycle’s
value when defendant took it, the court said that that was a
“struggle,” because it “[didn’t] know exactly how the record
establishes what the value of the bike was at that moment
in time.” Ultimately, the trial court agreed with the state’s
“suggested compromise … to basically split the difference”
between the original thief and defendant, with each being
responsible for $850 damage, calling the result “rough justice.” The court ordered defendant to pay $350 in restitution
to the victim’s insurer and a $500 compensatory fine to the
victim.
         On appeal, defendant challenges the restitution order
and the imposition of the compensatory fine. To support a
restitution order, the state must prove criminal activities,
economic damages, and a causal relationship between the
two. State v. Akerman, 

, 

 (2016). “Those same prerequisites apply when imposing
a compensatory fine under ORS 137.101.” State v. Donahue,

, 

 (2000). However, unlike
restitution, the amount of a compensatory fine does not have
to tie to the amount of damages—if a victim incurred any
economic damages, the court may order a portion of a fine
imposed as a penalty to be shared with the victim. State v.
Grismore, 

, 

 (2016).
         Defendant argues that there is no evidence that he
caused any economic damages and that, consequently, the
court erred in ordering restitution and in imposing a compensatory fine. In response, the state primarily contrasts
(1) defendant’s testimony at trial that, when he took the bicycle, he intended to “try to make it [a] little bit nicer than it
was, try to fix it up a little bit so it’d be rideable again,” and
(2) the insurance claim representative’s testimony at the
restitution hearing that, after the police recovered the bicycle, a professional bicycle shop told the victim that “there
was no way to repair the bicycle” because it was “in such
Cite as 

 (2019)                            453

disarray, both from damage and the handlebars, the frame,
and the mechanics of it being bent.” The state argues that,
because defendant viewed the bicycle as repairable, it must
have been less damaged when he took it than it was when
the bicycle shop assessed it. In the state’s words, “the evidence was sufficient to establish the defendant caused some
damage to the bicycle, because at the time he stole the victim’s bicycle it was repairable and therefore had monetary
value, but when it was recovered it was beyond repair and
had no monetary value.”
         We disagree with the state that the foregoing evidence was enough to support a compensatory fine, let alone
the restitution order. “Although the ‘any evidence’ standard is a low one, it nevertheless requires the evidence in
the record to be sufficient to allow a reasonable inference
in favor of the court’s finding.” State v. Nguyen, 

, 

 (2015) (internal citation omitted). “The
record must support a nonspeculative inference that there
is a causal relationship between the defendant’s criminal
activities and the victim’s economic damages.” Akerman,

 (emphasis added).

         Here, the inference urged by the state is not reasonable for three related reasons. First, defendant said that
he intended to “try” to fix up the bicycle, not that it was
in fact fixable. Second, whether a bicycle can be “fixed up”
enough to make it “rideable again” is a different question
from whether it can be restored to its original condition or
otherwise repaired to the satisfaction of a professional bicycle shop. Third, there is no evidence that defendant had any
specialized knowledge or expertise regarding bicycle repair
or that, without such expertise, he would have noticed that
components were “bent” in such a way as to render the bicycle unrepairable. Neither the bicycle nor a photograph of
the bicycle was admitted into evidence, so there is no way
to know whether the components looked “bent.” The victim
did not mention anything looking “bent.” Sabatino never
saw the bicycle and relied solely on what the victim relayed
from the bicycle shop. The only evidence of how the bicycle
appeared to an average person was the police officer’s testimony that the bicycle was in “reasonably decent condition”
454                                                         State v. Riekens

when he recovered it from defendant and was not “beat up,
dented, destroyed.” The evidence does not allow a reasonable
inference that the bicycle was more repairable when defendant took it than when the police recovered it.
          The state also briefly cites another aspect of defendant’s trial testimony as evidence to support the court’s
order. When defendant was asked at trial what he meant
when he said that the bicycle was “fairly tore up” when he
took it, defendant described various types of damage but did
not mention any “bent” components. Later, Sabatino testified
at the restitution hearing that the bicycle shop had told the
victim that there were several bent components. The state
suggests that it is reasonable to infer that defendant caused
some damage to the bicycle because of the difference between
those descriptions. Although the state mentions that testimony in only a single sentence of its answering brief, we
address it separately, because the dissent focuses on it.
          We disagree with the state (and the dissent) that
it is reasonable to infer from the cited evidence that the
components that were determined to be “bent” when the
bicycle was recovered were not “bent” when defendant took
the bicycle. Defendant was never asked for a comprehensive
description of the damage to the bicycle when he took it—
he was asked only what he meant when he said that the
bicycle was “fairly tore up.” In the guilt phase of defendant’s
trial, the only disputed issue regarding the bicycle’s value
was whether it was more or less than $1,000, which turned
on whose evidence the jury believed, not the bicycle’s condition.2 More importantly, even if one assumes that defendant

     2
       The dissent’s assertion to the contrary, see 301 Or App at 459-60 (Tookey,
J., dissenting), disregards defendant’s trial strategy. While one may question
that strategy with the benefit of hindsight—that is, with the benefit of knowing
the insurance claim representative’s testimony at the restitution hearing—it is
apparent from the record that the defense trial strategy was to try to persuade
the jury that defendant did not steal the bicycle or, alternatively, that the state
had failed to prove that the bicycle was worth over $1,000. Consistently with
that strategy, defendant moved for a judgment of acquittal on the charged crime
of first-degree theft (a felony) but did not move for a judgment of acquittal on
the lesser-included offense of second-degree theft (a misdemeanor) or request a
jury instruction on third-degree theft (theft of property valued under $100). Also
consistently with that strategy, no one asked defendant to describe all damage to
the bicycle when he found it—and witnesses generally must answer the questions
asked.
Cite as 

 (2019)                                                 455

meant to give a comprehensive list of the damage that he
noticed, there is no evidence that the “bent” components
would have been noticeable to an average person. See 301 Or
App at 460-61. The “bent” components were the only damage that defendant did not mention in his trial testimony
that the insurance claim representative mentioned at the
restitution hearing. Again, viewed in the light most favorable to the state, it would be speculation, not a reasonable
inference, to find on this record that defendant caused the
“bent” components.
          Finally, the dissent raises a new argument for
affirmance, which the state has never raised, and which is
contrary to established principles regarding restitution proceedings. In short, the dissent argues that we should combine (1) the jury’s implicit finding during the guilt phase that
the bicycle was worth at least $100 when defendant stole
it,3 and (2) the trial court’s finding at sentencing that the
bicycle was worth “zero” when recovered, and, based on that
combination of findings, conclude that defendant necessarily caused at least $100 damage to the bicycle. 301 Or App
at 461-64 (Tookey, J., dissenting). Although that argument
may have some intuitive appeal, it fails under scrutiny, even
if we were willing to affirm on an alternative ground that
the state never argued in the trial court and has not raised
on appeal.
         Whether the prerequisites for restitution have been
met is a legal question that “will necessarily depend on
the trial court’s factual findings.” Kirkland, 

. In making those findings, the trial court “is not limited to the facts found by the jury, but may conduct additional fact-finding regarding the amount of damages during
the sentencing.” 

. That is precisely what occurred
here. As a result, the record on which the trial court made
its sentencing findings was entirely different from the record
on which the jury found defendant guilty of second-degree
theft.

    3
      As previously mentioned, second-degree theft involves stolen property with
a value of less than $1,000 but at least $100, ORS 164.045, and the jury found
defendant guilty of second-degree theft, so the jury implicitly found that the bicycle was worth at least $100 when defendant stole it.
456                                          State v. Riekens

          During the guilt phase of his trial, defendant made
a strategic choice not to contest that the bicycle was worth at
least $100 and instead to try only to persuade the jury that
it was worth less than $1,000—which he did, thus avoiding a felony conviction. See 301 Or App at 454 n 2. As a
result, the evidence at trial was that, three years earlier,
the bicycle cost about $1,800 new; that defendant hoped to
fix it up enough to make it rideable again, even though it
was “fairly tore up”; that the police officer who recovered
the bicycle from defendant perceived it to be in “reasonably
decent condition” and not “beat up, dented, destroyed”; and
that the replacement value of the bicycle was at least $364,
even if it was only in “fair” condition. On that record, the
jury found that the bicycle was worth at least $100 (but less
than $1,000) when defendant took it. At the restitution hearing, however, the trial court heard significant additional
evidence, including evidence of other damage (“bent” components), evidence that a professional bicycle shop did not
consider the bicycle to be repairable, and evidence that the
victim’s insurer had deemed the bicycle to have “no salvage
value.” On that record, the trial court found that the bicycle had “zero” value when recovered. As for what the bicycle had been worth when defendant took it, the trial court
expressly stated that it was a “struggle” to say, because it
“[didn’t] know exactly how the record establishes what the
value of the bike was at that moment in time,” and therefore
resorted to “rough justice” instead.
        At sentencing, a trial court must make findings
based on the evidence in the record. See ORS 137.106 (requiring an order of restitution if the trial court “finds from the
evidence presented that a victim suffered damages”); State
v. Herfurth, 

, 

 (2016),
rev den, 

 (2017) (restitution must be based on
“evidence in the record”); State v. Onishchenko, 

, 

, rev den, 

 (2012) (a compensatory fine depends on trial court factual findings “supported by evidence in the record”). Here, no one is challenging the trial court’s finding that the victim’s bicycle was
worth “zero” when recovered, and certainly there was evidence at the restitution hearing to support that finding. But
we cannot mix and match that finding with a finding the
Cite as 

 (2019)                              457

jury made on a different record to “infer” that the bicycle’s
value went down during the three days that defendant possessed it. We especially cannot do so when the trial court
necessarily rejected evidence on which the jury may have
relied—the police officer’s testimony about the condition of
the bicycle when he recovered it—in favor of new evidence
not heard by the jury—Sabatino’s testimony as to the bicycle shop’s assessment and the insurer’s resulting “no salvage value” decision. We therefore disagree with the dissent’s newly raised argument for affirmance, even if it were
properly before us.
         In conclusion, on this record, the evidence viewed
in the light most favorable to the state was insufficient to
allow a nonspeculative inference that defendant caused the
“bent” components on the victim’s bicycle or otherwise damaged the bicycle during the three days that he possessed it,
so as to have caused economic damages to the victim and
her insurance company. Accordingly, we reverse the supplemental judgment and remand for resentencing. See State v.
Moreno-Hernandez, 

, 

 (2019)
(remanding for resentencing because “there may be other
permissible options that the trial court could adopt on resentencing”); State v. Tippetts, 

, 

 (2010) (we have “consistently remanded for resentencing in circumstances in which the sentencing court erred
by imposing restitution in the absence of any evidence of
economic damages”).
        Supplemental judgment reversed; remanded for
resentencing; otherwise affirmed.
        TOOKEY, J., concurring in part, dissenting in
part.
         I agree with the majority that the evidence in the
record in this case is legally insufficient to support the imposition of restitution. For that reason, we should accept the
state’s concession, made at oral argument, that the order
imposing $350 in restitution to the victim’s insurer was
“essentially arbitrary” because there was “no specific evidence that the state adduced that would support a specific
finding that defendant was responsible for $350 worth of
458                                             State v. Riekens

damages.” Consequently, I concur that the trial court erred
in imposing $350 in restitution in this case.
         But, I write separately because I disagree with
the majority that the evidence in the record in this case is
legally insufficient to support the imposition of the compensatory fine imposed by the trial court.
         “We review a trial court’s imposition of a compensatory fine for legal error.” State v. Grismore, 

, 

 (2016). “But we will uphold the trial court’s
findings of fact so long as there is any evidence in the record
to support them.” State v. Smith, 

, 

 (2018) (so noting with respect to restitution); see
also State v. Onishchenko, 

, 

, rev den, 

 (2012) (“[W]hen reviewing a trial
court’s factual finding regarding the value of stolen property, our task is to determine whether the finding is supported by ‘any’ evidence in the record.”). Further, we review
the evidence supporting the trial court’s order “in the light
most favorable to the state,” Smith, 

 (internal quotation marks omitted), and, if “findings of historical
fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one
way, we will presume that the facts were decided in a manner consistent with the court’s ultimate conclusion,” State v.
Ehly, 

, 

 (1993).
         In this case, I would conclude that legally sufficient
evidence supports the trial court’s imposition of the compensatory fine; legally sufficient evidence permits a reasonable
inference that defendant caused at least some damage to the
victim’s bicycle’s frame, handlebars, or mechanics while he
was in possession of it. I would reach that conclusion for two
reasons.
         First, the record contains descriptions of the victim’s bicycle both when defendant stole it and after the victim recovered it. During defendant’s trial, defendant testified that, when defendant took the victim’s bicycle, it was
“fairly tore up.” When asked, “How so?”, defendant replied:
      “There was paint splattered all over it. It was missing
   one cable. Both tires were flat. One of the shift levers was—
   the mount was busted loose near the handlebars.”
Cite as 

 (2019)                               459

Notably, when describing the condition of the victim’s bicycle at the time that he took it, defendant did not mention
the frame, the handlebars, or the mechanics of the victim’s
bicycle being bent.
        During the restitution hearing, however, a representative from the victim’s insurer explained that, when the
victim recovered the bicycle,
   “[t]he bicycle was in such disarray, both from damage and
   the handlebars, the frame, and the mechanics of it being
   bent, that there was no way to repair the bicycle. There is
   no salvage value.”
         Further, the evidence demonstrates that defendant
did not merely passively possess the victim’s bicycle during
the three days that he had possession of it. Instead, he spent
time performing “work[ ]” on it. He also transported the victim’s bicycle around Northeast Portland and chained it to a
trailer that was attached to a different bicycle.
          From that evidence, the trial court was permitted
to infer that defendant’s activities caused at least some damage to the victim’s bicycle’s frame, handlebars, or mechanics during the time that he possessed it. That is all that
is required for the imposition of a compensatory fine. 301
Or App at 452 (noting “the amount of a compensatory fine
does not have to tie to the amount of damages—if a victim
incurred any economic damages, the court may order a portion of a fine imposed as a penalty to be shared with the
victim”); see also State v. Kellison, 

, 56-57,

 (2017), rev den, 

 (2018) (rejecting the
state’s concession that “the record lacked sufficient evidence
to establish that the victim had incurred pecuniary harm,”
and that therefore the trial court erred in imposing a compensatory fine, where the record contained evidence that the
victim was “in therapy”).
         I also note that, when defendant was testifying in
this case, he had a reason to list all visible damage to the
victim’s bicycle at the time that he took possession if it—
viz., to establish its limited monetary value, which could
support a not guilty verdict. That is because the value of the
property defendant stole was an element of the crime that
460                                                      State v. Riekens

defendant was charged with committing and that defendant
was on trial for—i.e., first-degree theft, by theft of property
the value of which was $1,000 or more. See ORS 164.055
(providing that one way a person can commit first-degree
theft is committing “theft as defined in ORS 164.015” when
the “total value of the property … is $1,000 or more”); ORS
164.115(1) (“Except as otherwise specified in this section,
value means the market value of the property at the time
and place of the crime, or if such cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime.”).
          Indeed, at the close of the state’s case, defendant
moved for a judgment of acquittal on the first-degree theft
charge that was then pending against him, contending
that there was “not enough evidence” that the bicycle was
worth over $1,000. The trial court denied that motion, reasoning that, given “competing evidence” in the record, the
value of the bicycle was “a question for the finder of fact.”
Subsequently, during cross-examination while presenting
his case, defendant provided testimony concerning the condition of the bicycle at the time that he took it—viz., that
“[t]here was paint splattered all over it,” it “was missing
one cable,” both “tires were flat,” and one “of the shift levers
was—the mount was busted loose near the handlebars.” At
that time, defendant had a reason to provide a comprehensive list of damage to the bicycle: to establish its limited
value at the time that he took possession to support the jury
returning a not guilty verdict.1
          I acknowledge that there is a possibility that, when
defendant stole the victim’s bicycle, defendant did not notice
the bent frame, handlebars, and mechanics, and accordingly, during his trial, did not mention those aspects of the
bicycle’s condition when he was describing the state that
the bicycle was in at the time that he stole it. That, however, is not the only inference that could be drawn from this
record and drawing that inference would be inconsistent
with our standard of review in this case, which requires us
to review the evidence “in the light most favorable to the
    1
      During his closing argument, defendant in fact argued that the jury should
acquit him of first-degree theft because the value of the bicycle was less than
$1,000.
Cite as 

 (2019)                                                  461

state.” Smith, 

 (internal quotation marks
omitted). Instead, I believe for the reasons described above,
a reasonable and permissible inference is that defendant
caused some damage to the victim’s bicycle while he was in
possession of it, transporting it around Northeast Portland,
and performing “work[ ]” on it.2 See State v. Miller, 

, 

 (2004), rev den, 

 (2005)
(“The inference need not inevitably follow from the established facts; rather, if the established facts support multiple
reasonable inferences, the jury may decide which inference
to draw.”); West v. Allied Signal, Inc., 

, 192
n 4, 

 (2005) (noting that an inference is permissible and not “impermissible speculation” when “there
is an experience of logical probability that an ultimate fact
will follow a stated narrative of historical fact” and in such
case “the jury is given the opportunity to draw a conclusion”
(internal quotation marks omitted)).
         The second reason I would conclude that legally
sufficient evidence supports the trial court’s imposition of
the compensatory fine in this case is the jury’s determination that defendant was guilty of second-degree theft, when
that determination is coupled with the trial court’s finding
that, when it was recovered, the victim’s bicycle was “worth
zero”—a finding that defendant does not challenge on appeal
and that is supported by evidence in the record.
           In this case, the jury convicted defendant of second-degree theft, which required the jury to find that the market
value of the victim’s bicycle at the time that defendant stole
it (or its replacement cost) was $100 or greater, but less than
$1,000. See ORS 164.045 (“A person commits the crime of
theft in the second degree if: (a) … the person commits
theft …; and (b) The total value of the property … is $100
or more and less than $1,000.”); ORS 164.115(1) (defining
“value”). That is because the value of the stolen property is
an element of second-degree theft. ORS 164.045.

    2
      In that regard, I note that expertise is not necessarily required to notice
damage to a bicycle. See, e.g., Marks v. Columbia County Lumber Co., 

, 

 (1915) (“[T]he habits, characteristics and disposition of the wellknown domestic animal, the horse, is a matter of such common knowledge that it
would not require the testimony of an expert to determine whether he was safe or
not [to do certain work], even if that were a permissible field of expert inquiry.”).
462                                         State v. Riekens

         In fact, the trial court instructed the jury that for
the state to prove “theft in the second degree,” the state
had to prove beyond a reasonable doubt that “the act”—i.e.,
defendant stealing the victim’s bicycle—“occurred on or
about September 27, 2017,” and that the “total value of the
bicycle was $100 or more.” The trial court further instructed
the jury that the “total value of property that is subject to
theft means either the market value of the property at the
time and place of the crime, or, if such cannot be reasonably ascertained, the cost of replacement of the property
within a reasonable time after the crime.” Because it is “presumed that juries follow instructions, not disregard them,”
Tenbusch v. Linn County, 

, 

,
rev den, 

 (2001), we must presume that the jury
evaluated the condition of the bicycle at the time that defendant took possession of it and, based on the evidence presented at trial, found, beyond a reasonable doubt, that the
value of the bicycle was $100 or more when defendant stole
it. That finding is supported by evidence in the record and
defendant does not contend otherwise.
        At the restitution hearing, the trial court then
found that the victim’s bicycle, when it was recovered, was
“worth zero.” That finding too is supported by evidence in
the record, we are bound by it, see Smith, 

,
and defendant does not contend otherwise.
         A reasonable, permissible, and necessary inference
from the jury’s finding that the victim’s bicycle had a value
of $100 or more when defendant stole it, and the trial court’s
finding that the victim’s bicycle was “worth zero” when it
was recovered by the victim—both of which are supported
by evidence in the record—is that during the three days that
defendant was in possession of the victim’s bicycle and was
performing “work[ ]” on it, he caused at least some damage
to it.
         I am not aware of a case in which we have held
that a jury’s finding of fact with regard to the value of a
stolen item can serve as a predicate fact for the imposition
of a compensatory fine, however, the statutory scheme governing imposition of compensatory fines suggests that we
should do so. As we have previously explained, “[t]here are
Cite as 

 (2019)                                                 463

three prerequisites for ordering a compensatory fine under
ORS 137.101: (1) criminal activities, (2) economic damages,
and (3) a causal relationship between the two.”3 State v.
Alonso, 

, 

 (2017); see also
State v. Donahue, 

, 

 (2000)
(“[A] compensatory fine may be awarded only if the trial
court finds that the victim has suffered pecuniary loss as
a result of the defendant’s criminal activities.”). “ ‘Criminal
activities’ means any offense with respect to which the
defendant is convicted or any other criminal conduct admitted by the defendant.” ORS 137.103(1).
         Defendant’s criminal activity in this case—that is,
the offense for which defendant was convicted—was theft of
a bicycle valued at $100 or more, but less than $1,000. That
conviction is the predicate “criminal activity” from which the
trial court was permitted to determine whether the victim
suffered economic damages, and determine whether a causal
relationship existed between defendant’s criminal activity
and the victim’s economic damages. See State v. Andrews,

, 

 (2018), rev allowed, 

 (2019) (the “scope of defendant’s criminal activity,
for purposes of the restitution award, was determined when
the jury convicted him of engaging in ‘offensive physical
contact,’ based on evidence that included his spitting at and
punching the victim”).
         Justice Deady observed over 150 years ago that
it is the “peculiar province” of the jury to decide “guilt or
innocence.” Latshaw v. Territory, 

 (1854).
Disregarding the jury’s finding regarding an element of
the crime that defendant was convicted of, when evidence
supports that finding and that finding is not challenged by
defendant on appeal, and when disregarding that finding
   3
       ORS 137.101(1) provides:
        “Whenever the court imposes a fine as penalty for the commission of a
   crime resulting in injury for which the person injured by the act constituting
   the crime has a remedy by civil action, unless the issue of punitive damages
   has been previously decided on a civil case arising out of the same act and
   transaction, the court may order that the defendant pay any portion of the
   fine separately to the clerk of the court as compensatory fines in the case. The
   clerk shall pay over to the injured victim or victims, as directed in the court’s
   order, moneys paid to the court as compensatory fines under this subsection.
   This section shall be liberally construed in favor of victims.”
464                                          State v. Riekens

would be inconsistent with the statutory scheme envisioned
by ORS 137.101(1) and ORS 137.103(1), would be an invasion
of that “peculiar province.”
         In sum, with respect to the compensatory fine
imposed by the trial court in this case, our inquiry reduces
to whether there is any evidence to support a reasonable
inference that defendant caused any damage to the victim’s
bicycle during the three days that he had possession if it and
was performing “work[ ]” on it. Although this record is not
as fulsome as one might wish, it is adequate to support the
trial court’s award of a compensatory fine.
          Consequently, although I concur that the trial court
erred in imposing $350 in restitution in this case and that
we should remand for resentencing, I would conclude that
legally sufficient evidence supported the trial court’s imposition of the compensatory fine. For that reason, I respectfully
dissent from my colleagues in the majority.