No. 462 July 3, 2024 581
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SUMMER CHARLAYNE WILSON,
Defendant-Appellant.
Linn County Circuit Court
21CR07615; A179719
Michael B. Wynhausen, Judge.
Submitted April 29, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
582 State v. Wilson
MOONEY, J.
Defendant pleaded no contest to possessing a stolen 2005 Changzhou trailer and was convicted of possession
of a stolen vehicle (PSV) under ORS 819.300. She appeals
the supplemental judgment, assigning error to the trial
court’s imposition of restitution in the amount of $10,527.58
for economic damages that defendant argues she did not
cause. We review the trial court’s imposition of restitution
for legal error, bound by that court’s factual findings that
are supported by any evidence in the record. State v. Lobue,
304 Or App 13, 16,
466 P3d 83, rev den,
367 Or 257 (2020).
We conclude that the record is not sufficient to support the
restitution award. We reverse and remand for entry of an
amended supplemental judgment that does not include
restitution.
Defendant loaned her truck to her friend, Tate, on
December 24, 2020. Tate returned the truck to defendant
the next day, December 25, 2020, with a trailer attached
to it. The trailer was “open,” and there were three safes on
it. Tate told defendant that the trailer was stolen and that
“they needed to get rid of it right away.” Defendant got into
the passenger seat of her truck and rode along as another
friend, Smith, drove to a place where they stopped. Smith
got out of the truck and “unhooked the trailer.” Tate and
another man drove along to the disposal site in a separate
vehicle. Defendant testified that she did not get out of the
truck and that she did not notice that there were safes on
the trailer, but the trial court found her testimony “somewhat incredible,” noting that it was an open trailer.
The trailer and the safes had been stolen on
December 24, 2020, during a burglary in which defendant
did not participate. The people from whom the safes and
trailer had been stolen kept items of value in the safes,
including coins. The items of value had been removed from
the safes by the time the trailer was located on December
25. The safes had been pried open, and packaging from the
stolen coins remained inside the safes. Whether the coins
had been removed from the safes before or after defendant
rode along to dispose of the trailer is not clear.
Cite as 333 Or App 581 (2024) 583
ORS 137.106 requires a trial court to order restitution “[w]hen a person is convicted of a crime … that has
resulted in economic damages[.]”1 However, a “[d]efendant
cannot be required to pay restitution for [economic] damages arising out of criminal activity for which he was not
convicted or which he did not admit having committed.”
State v. Seggerman, 167 Or App 140, 145,
3 P3d 168 (2000)
(holding that the court could not order restitution for stolen merchandise based on defendant’s plea of guilty to the
crime of conspiracy to commit theft because he was not convicted of theft and did not admit to committing theft). It is
nevertheless clear that “the damages need not be the direct
result of defendant’s criminal activity” to support restitution. State v. Pumphrey,
266 Or App 729, 734,
338 P3d 819
(2014), rev den,
357 Or 112 (2015) (emphasis in original). As
we recently explained:
“When restitution is imposed as a sanction in a criminal
sentence, it is ‘informed by principles enunciated in civil
cases concerning recoverable economic damages.’ State v.
Islam, 359 Or 796, 800,
377 P3d 533 (2016). There are three
prerequisites for the imposition of restitution as part of a
defendant’s criminal sentence: (1) criminal activities, (2)
economic damages, and (3) a causal relationship between
the criminal activity and the economic damages. State v.
Kirkland, 268 Or App 420, 424,
342 P3d 163 (2015). The
state bears the burden of proving the factual prerequisites
necessary to support an award of restitution and that the
award is reasonable. ORS 137.106(1)(a); State v. Aguirre-Rodriguez, 367 Or 614, 620,
482 P3d 62 (2021).”
State v. Page,
330 Or App 672, 676,
544 P3d 421 (2024).
Defendant disputes causation. She argues that her
criminal conduct was not a but-for cause of the economic
loss sustained by the persons from whom the safes were
stolen because the theft of that property occurred before
she committed the crime for which she was convicted—possessing the stolen trailer. She was neither charged with nor
convicted of burglary. And although she was charged with
second-degree theft, that charge was for theft of the trailer
1
ORS 137.106 was amended in 2022, after the events relevant to this appeal
occurred. Or Laws 2022, ch 57, § 1. We nevertheless cite to the current version of
the statute because the 2022 amendments do not affect our analysis.
584 State v. Wilson
only and it was dismissed. The state argues that defendant’s criminal conduct was a but-for cause of the victims’
loss because there was evidence “sufficient to establish that
[her] possession of the stolen trailer, while helping to dispose of it, facilitated the damage to the safes and theft of the
safes’ contents.” Although but-for causation is not as narrow as defendant argues, it is also not as broad as the state
suggests.
But-for causation is a test often used in civil cases
to determine whether the defendant’s negligence was, in
fact, a cause of the plaintiff’s damages. Haas v. Estate of
Mark Steven Carter, 370 Or 742, 748-49,
525 P3d 451 (2023).
The but-for test does not look for a “single cause,” Page,
330
Or App at 676, and it is not the only test used to measure
cause-in-fact in civil cases. See, e.g., Lasley v. Combined
Transport, Inc.,
351 Or 1, 7-8,
261 P3d 1215 (2011) (discussing “cause in fact” and the “substantial factor” test).
Nevertheless, it is clear that a defendant’s criminal conduct
must, at a minimum, be a cause of the victim’s economic loss
before restitution may be imposed as part of the sentence for
that criminal conduct.
We have upheld restitution awards in cases where
the defendant’s criminal conduct preceded, but nevertheless facilitated, the economic loss. For example, in State v.
Stephens, 183 Or App 392,
52 P3d 1086 (2002), we affirmed
a restitution award against the defendant for economic loss
associated with tires and wheels that were stolen by someone else from the vehicle after he stole it and left it unattended. We concluded that in the absence of the defendant’s
criminal conduct, the tires and wheels would not likely have
been stolen.
Id. at 397. We likewise upheld the restitution
award in State v. Doty,
60 Or App 297,
653 P2d 276 (1982),
explaining that the defendant was responsible for restitution for “the loss resulting from the purported second burglary facilitated by [the defendant’s] own negligent conduct
in leaving the victim’s premises unprotected after his own
criminal conduct ended.”
Id. at 300; see also State v. A. E. A.,
332 Or App 584, 587, ___ P3d ___ (2024) (upholding restitution in a juvenile delinquency case for costs incurred to
repair a damaged vehicle where the youth stole his parents’
Cite as
333 Or App 581 (2024) 585
car which was later damaged when his co-offender recklessly drove the vehicle); State v. Spontini,
318 Or App 215,
218,
506 P3d 1196, rev den,
370 Or 198 (2022) (upholding
restitution for damage to a motorhome that arose out of
defendant’s criminal activity of stealing the motorhome).
Relying on Stephens, Doty, and Spontini, the trial
court explained its view that “the policy behind the restitution scheme in Oregon is if there is some connection then all
parties who are liable should be responsible for the restitution. … [I]t seems to the court that the policy is to favor the
interests of victims of crime when there is some connection”
between the crime and the victim’s economic damages. But
the existence of “some connection” is not the standard by
which causation is measured for purposes of imposing restitution as part of a criminal sentence.
For example, we reversed a restitution award in
State v. Mothershed, 323 Or App 16,
522 P3d 921 (2022),
where the defendant purchased a stolen motorcycle, the
only evidence was that the ignition was already damaged
when he purchased it, and it would have required impermissible speculation to find that defendant caused any additional damage.
Id. at 23. Here, defendant occupies a position
in the “post-theft chain of possession” like the defendant
in Mothershed. And although the trial court did not credit
defendant’s testimony that she was not aware that there
were safes on the stolen trailer when she rode along with
Smith to “get rid of” the trailer, she was not charged with
or convicted of burglary and she was not charged with or
convicted of theft of the safes or the content of the safes.2
We defer to the trial court’s assessment of defendant’s credibility and accept as true that defendant helped
to get rid of the trailer and the safes when she knew that
they were stolen. But the trial court did not find that defendant participated in damaging the safes or was aware that
the safes had been damaged or that the items inside the
2
The amount of the restitution award was established based upon a stipulated list that is not in the record on appeal. As best we can tell from the limited
testimony and arguments at the restitution hearing, the list included values for
“items included in the safes that were not recovered[.]” We do not know what the
listed amounts were and we cannot tell whether the list also included amounts
for damage to the safes.
586 State v. Wilson
safes were stolen. We reject the state’s argument that “[t]
he fact that three men were needed to drop off a trailer—a
simple task—is evidence that the additional men joined for a
more physical task: breaking into the safes and stealing the
safes’ contents.” That other individuals followed Smith and
defendant to the place where they dumped the trailer—even
when considered along with the presence of packaging when
the trailer was located by law enforcement—would not permit such a finding without speculation.
The presence of three men at the site where they
planned to get rid of the stolen trailer and safes might have
been for any number of reasons—perhaps simply to ensure
the disposal of those items in a place unlikely to be immediately discovered. The state reaches a different conclusion—
that the three men went to the disposal site in order to break
into the safes. But that conclusion requires the stacking of
inferences to the point of guesswork. See State v. Bivins,
191 Or App 460, 468,
83 P3d 379 (2004) (evidence is legally
insufficient to support an inference when it “requires the
stacking of inferences to the point of speculation”). Given
the lack of evidence about the timing of when the safes were
damaged and when the coins were actually stolen, and the
lack of evidence connecting the theft of the coins to the
crime for which defendant was convicted, we cannot say
that but-for defendant’s criminal conduct—possessing the
stolen trailer—the safes would not have been damaged and
the coins would not have been stolen.3
The trial court erred in ordering defendant to pay
restitution in the amount of $10,527.58. We therefore reverse
the restitution award and remand for entry of an amended
supplemental judgment that does not include restitution.
Supplemental judgment reversed; remanded for
resentencing; otherwise affirmed.
3
Section 876 of the Restatement (Second) of Torts (1979), does not support
the state’s position that restitution properly includes the value of the content of
the safes. Because the coins may have been stolen before defendant came into
possession of the stolen trailer, the evidence does not establish that defendant
“acted in concert with and provided substantial assistance in accomplishing
Tate’s own tortious conduct by helping Tate dispose of and thereby conceal the
stolen property.”
