607
Submitted February 24; supplemental judgment reversed in part, remanded
for resentencing, otherwise affirmed June 10; petition for review denied
September 17, 2020 (367 Or 76)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CORY ADAM PARSONS,
Defendant-Appellant.
Washington County Circuit Court
C150336CR; A168673
468 P3d 1033
Defendant appeals for the second time from a supplemental judgment imposing restitution, entered after defendant pleaded guilty to second-degree criminal
mischief and attempting to elude a police officer. In the first appeal, the trial
court ordered defendant to pay restitution to Abercrombie & Fitch for lost and
damaged pants, and to the City of Tigard and the city’s insurer for damage to a
police vehicle. The Court of Appeals vacated the supplemental judgment of restitution and remanded the case to the trial court to make a finding of reasonable
foreseeability with respect to the damage to the police vehicle. On remand, the
trial court again ordered defendant to pay restitution, but did not make findings of reasonable foreseeability on the record. In this second appeal, defendant
assigns error to the trial court’s failure to make an express finding of reasonable
foreseeability with respect to the police vehicle and to the court’s order of restitution to Abercrombie & Fitch for pants that defendant did not admit to damaging.
Held: The Court of Appeals concluded that (1) the trial court did not err by declining to make an express finding of reasonable foreseeability with respect to the
damage to the police vehicle and (2) the court’s imposition of restitution for pants
that defendant did not admit to damaging was error, as conceded by the state.
Supplemental judgment reversed in part; remanded for resentencing; otherwise affirmed.
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
608 State v. Parsons
SHORR, J.
Supplemental judgment reversed in part; remanded for
resentencing; otherwise affirmed.
Cite as 304 Or App 607 (2020) 609
SHORR, J.
Defendant appeals from a supplemental judgment
imposing restitution, entered after defendant pleaded guilty
to second-degree criminal mischief, ORS 164.354, and
attempting to elude a police officer, ORS 811.540. This is
defendant’s second appeal from a judgment imposing restitution for those crimes. In the first, the trial court ordered
defendant to pay restitution to Abercrombie & Fitch for lost
and damaged merchandise, and to the City of Tigard and
the city’s insurer for damage to a police vehicle. We vacated
the supplemental judgment of restitution and remanded to
the trial court to make a finding of reasonable foreseeability with respect to the damage to the patrol car in accordance with State v. Ramos, 358 Or 581,
368 P3d 446 (2016).
On remand, the trial court again ordered defendant to pay
restitution to Abercrombie & Fitch, the city, and the city’s
insurer.
Defendant now raises four assignments of error
relating to the second supplemental judgment imposing restitution. With respect to assignments of error one through
three, defendant argues that the trial court erred in failing to make an express finding of reasonable foreseeability.
As we explain below, we conclude that the court was not
required to make an express finding of reasonable foreseeability and, therefore, affirm the order of restitution for
damage to the patrol car. In his fourth assignment of error,
defendant argues that the court erred in ordering defendant
to pay restitution to Abercrombie & Fitch for pants that
defendant did not admit to damaging. The state concedes
that error, and we accept the state’s concession. Accordingly,
we reverse that portion of the second supplemental judgment, and remand to the trial court with instructions to
delete restitution for the pants defendant did not admit to
damaging.
The relevant facts, which are undisputed, are set
forth in our first opinion, State v. Parsons, 287 Or App 351,
403 P3d 497, adh’d to as modified on recons,
288 Or App 449,
403 P3d 834 (2017), rev den,
362 Or 545 (2018) (Parsons I).
We summarize those facts below. In January 2015, nine
pairs of pants were damaged at Abercrombie & Fitch. The
610 State v. Parsons
damage was caused by a “deliberate shredding or cutting,
likely with a knife.” Id. at 354-55. On February 4, 2015, an
Abercrombie & Fitch employee observed defendant enter a
dressing room with five pairs of pants. That employee “heard
ripping sounds emanating from defendant’s dressing room”
and saw defendant return three pairs of pants to a clothing
rack. Id. at 355. Two of those pairs had been “shredded” in
the same manner as the nine pairs damaged in January.
The other two pairs were never recovered. Id.
The employee followed defendant as he left the store
and reported defendant’s license plate number to the police.
Officer Johnson of the Tigard Police Department responded
to the incident. Johnson pursued defendant, who was driving, in a marked police car and activated the overhead
lights. Defendant did not stop his vehicle in response to the
overhead lights but continued driving “through two intersections with ‘plenty of opportunity to stop.’ ” Id. To force
defendant to stop his car, “Johnson drove his patrol car into
the rear corner of defendant’s truck, in a ‘pursuit intervention technique’ (PIT),” causing damage to the patrol car.
Id.
Defendant pleaded guilty to attempting to elude an
officer and second-degree criminal mischief. Defendant’s
plea stated that he “intentionally damaged property belonging to Abercrombie & Fitch” and that he “intentionally fled
or attempted to elude police officers on February 4, 2015.”
The state sought a restitution award against defendant
under ORS 137.106.
At the restitution hearing, the state presented evidence of the damages. The Abercrombie & Fitch employee
testified to the store’s losses, “reporting that the two shredded pairs of pants cost $78 each, the missing pairs of pants
cost $78 and $88 respectively, and the nine pairs damaged
in January 2015 cost a total of $752.” Id. Abercrombie &
Fitch’s “total loss was $1,074.” Id. Johnson also testified that,
as a result of the PIT maneuver, “the patrol car suffered
$3,046.89 worth of damage. The City of Tigard’s insurer,
City County Insurance Services (CCIS), paid $2,546.89 to
repair the patrol car, and the city paid a $500 deductible for
the repairs.” Id.
Cite as 304 Or App 607 (2020) 611
Based on that evidence, the trial court ordered
defendant to pay $1,074 in restitution to Abercrombie &
Fitch, including $752 for the nine pants ripped in January,
$156 for the two pants ripped on February 4, and $166 for
the two pants that went missing on February 4. The court
also awarded $500 to the city and $2,546.89 to CCIS for
damage to the patrol car. In total, defendant was ordered to
pay $4,120.89. Id. at 356.
Defendant appealed from the judgment imposing
restitution. Among other things, defendant argued that
the trial court erred in ordering restitution for the missing pants, because no “but for” causal connection existed
between defendant’s criminal activities and the disappearance of the pants. Id. at 357. We agreed and reversed the
trial court’s award of restitution for the missing pants. Id. at
359. Defendant also argued that it was error to impose restitution for the patrol car, because the damage to the car was
not a reasonably foreseeable result of defendant’s criminal
conduct as required by Ramos, which the Supreme Court
issued after the trial court’s imposition of restitution. Id. We
concluded that the trial court did not make a finding whether
the damage was reasonably foreseeable, and that such a
finding was necessary, although it was not recognized at the
time of the hearing. Id. at 359-60. For those reasons, “we
vacate[d] the supplemental judgment and remand[ed] to the
trial court for it to make that finding in the first instance.”
Id.1
The trial court held a hearing to address the reasons for remand. At that hearing, defendant argued that, in
the forthcoming judgment imposing restitution, no restitution should be awarded for the patrol car or the pants that
were damaged in January. With respect to the patrol car,
defendant reprised his argument that the damage was not a
reasonably foreseeable consequence of his criminal activity.
As for the pants damaged in January, defendant argued that
he could not be ordered to pay for those damages because he
had not admitted to, or pleaded guilty to, damaging pants
1
On reconsideration, we clarified that the trial court was to conduct the reasonable foreseeability analysis with respect to the entire sum owed for the patrol
car, including the $500 to the city and the $2,546.89 to CCIS. State v. Parsons,
288 Or App 449, 450,
403 P3d 834 (2017), rev den,
362 Or 545 (2018) (Parsons II).
612 State v. Parsons
on any day other than February 4. In accordance with our
opinion in Parsons I, both parties agreed that no restitution
should be awarded for the missing pants. At the conclusion
of the hearing, the court explained that it would take those
issues under advisement. The court later issued an order
imposing restitution for all of the original damages, including damage to the patrol car and the pants damaged in
January, less $166, the amount for the missing pants. That
order identified only the new amount of restitution, which
was $3,954.89. The court made no express findings of fact
and did not explain its analysis.
Defendant now appeals for the second time, assigning error to (1) the trial court’s imposition of $500 in restitution to the city for damage to the patrol car, (2) the court’s
imposition of $2,546.89 in restitution to CCIS for damage
to the patrol car, (3) the court’s failure to make an express
factual finding whether the damage to the patrol car was a
reasonably foreseeable consequence of defendant’s criminal
activities, and (4) the court’s imposition of $752 in restitution to Abercrombie & Fitch for pants that were damaged in
January 2015.
Whether a trial court has complied with the requirements for imposing restitution is a legal question that we
review for errors of law. State v. Herfurth, 283 Or App 149,
152,
388 P3d 1104 (2016), rev den,
361 Or 350 (2017). We
are bound by the trial court’s factual findings if they are
supported by any evidence in the record. State v. Pumphrey,
266 Or App 729, 730,
338 P3d 819 (2014), rev den,
357 Or 112
(2015).
Before turning to the issues on appeal, we briefly
summarize the relevant law concerning restitution. ORS
137.106(1) requires a trial court to award restitution when a
person is convicted of a crime that results in economic damages to the victim. Under that statute, the state bears the
burden to prove, by a preponderance of the evidence, that
the victim’s economic damages were the result of the defendant’s criminal activities. State v. Lobue, 304 Or App 13, 14,
466 P3d 83 (2020).
“[W]hether a crime has ‘resulted in’ economic damages under ORS 137.106 is a function of two considerations,
Cite as 304 Or App 607 (2020) 613
namely, causation and foreseeability.” State v. Gerhardt,
360
Or 629, 635,
385 P3d 1049 (2016). Reasonable foreseeability
provides an outer limit to the element of causation such that
the damages must have been a reasonably foreseeable result
of the defendant’s criminal activities. Ramos,
358 Or at 596-
97. As we observed in Parsons I, “the issue of foreseeability
in restitution is a question whether damage is generally foreseeable and is not a question whether the particular manner
in which the damage actually occurred is foreseeable.”
287
Or App at 360 (citing Ramos,
358 Or at 597). Whether damage is reasonably foreseeable is “a factual question for the
court.” Ramos,
358 Or at 597.
We turn to defendant’s assignments of error one
through three, all of which pertain to the damage to the
patrol car. In a combined argument, defendant contends that
the trial court erred by failing to make an express finding of
reasonable foreseeability either at the remand hearing or in
the order that followed. Defendant does not argue, as he did
in Parsons I, that the damages were not reasonably foreseeable. Thus, the sole issue before us with respect to assignments of error one through three is whether the trial court
was required to make an express finding as to whether the
damage to the patrol car was a reasonably foreseeable consequence of defendant’s criminal activities.
We first note that, as a general rule, we presume
that a trial court made findings of fact consistent with its
ultimate legal conclusion. State v. Ehly, 317 Or 66, 75,
854
P2d 421 (1993) (“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.”). We thus presume
that the trial court impliedly found that the damage to
the patrol car was reasonably foreseeable, given the court’s
order of restitution and our remand instructions directing
the court to determine that issue.
Although trial courts are sometimes required to
make express findings by law, defendant does not argue
that ORS 137.106 imposes such a requirement with respect
to findings of reasonable foreseeability. Nor does defendant
614 State v. Parsons
identify any cases that do so. We observe that we have
affirmed restitution awards based on implied findings of
fact, if there was evidence in the record to support those
implied findings. See, e.g., State v. Carson, 238 Or App 188,
194,
243 P3d 73 (2010) (affirming sentencing court’s award
of restitution because evidence in the record supported the
court’s implied finding of period of time covered by plea
agreement). And, in recognizing that a trial court must
make a finding of reasonable foreseeability before ordering
a defendant to pay restitution, Ramos did not require that
finding to be expressed on the record. See Ramos,
358 Or at
596 (characterizing the “question at issue in [that] case” as
“whether reasonable foreseeability is a limiting concept that
a court must consider in deciding whether to award the particular damages sought as restitution” (emphasis added)).
Defendant, however, points to our decision in
Parsons I as the basis for the trial court’s purported obligation to make an express finding here. We do not read the
remand instructions in that case, alone or in the context of
the whole opinion, as creating an obligation of that kind. In
Parsons I, we remanded to the trial court to make a finding regarding reasonable foreseeability because (1) the trial
court did not make a finding of reasonable foreseeability as
required by Ramos, (2) such a finding was necessary even
though it was not recognized at the time of the hearing, and
(3) an argument concerning the reasonable foreseeability
of damages must be made in the first instance to the trial
court. Parsons I, 287 Or App at 359-60. We thus remanded
to the court “for it to make that finding in the first instance.”
Id. at 360. Nowhere in the opinion did we refer to a requirement that the court make an express finding or explain its
analysis on the record.
Furthermore, a trial court is permitted to conduct
remand proceedings in a manner of its choosing, as long as
those proceedings are not contrary to or outside the scope
of the remand instructions. Village at Main Street Phase II,
LLC II v. Dept. of Rev., 360 Or 738, 748,
387 P3d 374 (2016)
(“When an appellate court directs action on remand, the
tribunal typically may determine how to accomplish the
directed outcome if it does so within the boundaries set by
the remand.”). Here, after defendant presented argument at
Cite as
304 Or App 607 (2020) 615
the remand hearing regarding foreseeability, the trial court
stated that it would take the issues raised at the hearing
and in Parsons I under advisement, and later issued the restitution order. Given our simple instructions that the court
“make that finding [of reasonable foreseeability] in the first
instance,” the court did not act contrary to or outside the
scope of our instructions. Therefore, we conclude that it was
not error for the trial court to decline to make an express
finding whether the damage to the patrol car was a reasonably foreseeable result of defendant’s criminal activities,
and we affirm the court’s order of restitution to the city and
CCIS.
We turn to defendant’s fourth and final assignment
of error. Defendant contends that the trial court erred when
it ordered defendant to pay $752 to Abercrombie & Fitch
for the pants that were damaged in January 2015, because
defendant did not admit to damaging those pants. A trial
court may order a defendant to pay restitution for economic
damages resulting from criminal activities for which he was
convicted or to which he admitted. Lobue, 304 Or App at 14;
ORS 137.103(1) (defining “criminal activities” as “any offense
with respect to which the defendant is convicted or any other
criminal conduct admitted by the defendant”). Thus, it is
error “for a trial court to impose restitution based on activities that occurred outside the period of time covered by the
defendant’s plea agreement.” State v. Muhammad,
265 Or
App 412, 414,
335 P3d 1281 (2014); see also State v. Howard,
292 Or App 517, 520,
424 P3d 803 (2018) (same).
Here, defendant pleaded guilty to criminal mischief for “intentionally damag[ing] property belonging to
Abercrombie & Fitch … on February 4, 2015.” Defendant
did not admit, in his plea statement or elsewhere, to damaging Abercrombie & Fitch’s property during January.
Accordingly, defendant asserts that it was error for the trial
court to award $752 in restitution to Abercrombie & Fitch
for the pants damaged in January. The state concedes that
error, and we accept the state’s concession.
In sum, we conclude that the trial court did not
err by declining to make an express finding of reasonable
foreseeability with respect to damage to the patrol car. We
616 State v. Parsons
therefore affirm the court’s order of restitution to the city
and CCIS for the patrol car, in the amounts of $500 and
$2,546.89, respectively. The state concedes that the court
erred in imposing restitution for the pants that were damaged in January, because defendant did not admit or plead
guilty to damaging those pants. We accept the state’s concession and remand to the trial court with instructions to
delete $752 of the restitution awarded to Abercrombie &
Fitch from the supplemental judgment.
Supplemental judgment reversed in part; remanded
for resentencing; otherwise affirmed.
