State v. Pool

No. 116              February 20, 2025                    19

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                  COREY ALLEN POOL,
                   Defendant-Appellant.
              Washington County Circuit Court
                   22CR18356; A181102
   Ricardo J. Menchaca, Judge.
   Argued and submitted October 22, 2024.
   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Julia Glick, Assistant Attorney General.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
   EGAN, J.
  Supplemental judgment imposing restitution reversed in
part; remanded for resentencing; otherwise affirmed.
20                                                         State v. Pool

          EGAN, J.
         In this criminal appeal, defendant challenges the
trial court’s supplemental judgment awarding restitution.1
Defendant contends that the state’s evidence as to three
items of restitution was insufficient to establish “economic
damages,” as defined in ORS 31.705(2)(a), and therefore, the
trial court erred in imposing a restitution award for those
items under ORS 137.106(2)(a). For the reasons explained
below, we reverse in part, remand for resentencing, and
otherwise affirm.
          “We review the trial court’s imposition of restitution for legal error, remaining mindful that we are bound by
the trial court’s findings, including reasonable inferences,
if they are supported by any evidence in the record.” State
v. Boyar, 

, 

, rev den, 

 (2023). “[W]e presume that a trial court implicitly
resolves factual disputes consistently with its ultimate conclusion” where those facts are necessary to its conclusion
and supported by the record. Pereida-Alba v. Coursey, 

, 

 (2015). Accordingly, we state the
facts consistently with that standard.
         Defendant and the victim were in a romantic relationship. After they separated, defendant entered the victim’s apartment and damaged her property, including one
tire on her car, her surfboard, bicycles, scuba diving gear,
and plants. Afterwards, the victim installed security cameras, which captured defendant puncturing a second tire on
her car. Each of the two times that defendant slashed a tire,
the victim took the vehicle to Les Schwab Tire Center to
replace the damaged tire with a used tire. However, after
experiencing vehicle problems, the victim took her car to a
dealership. The dealership informed her that she needed to
replace all four tires because all-wheel-drive vehicles like
hers require that the tires have identical traction, and, after
Les Schwab replaced the two tires, not all the tires had identical traction. The victim paid the dealership $750 for four
new tires.
   1
     Defendant pleaded guilty to and was convicted of attempted first-degree
burglary (Count 1) and stalking (Count 7) in Case No. 22CR18356.
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         Based on defendant’s conduct, he was charged with
seven offenses.2 While defendant was on release awaiting
trial for those charges, he continued harassing the victim,
and she obtained a stalking protective order against defendant in May. Defendant violated the stalking protective
order twice between May and June, resulting in additional
charges.3 In June, the victim’s apartment lease was up for
renewal, but she decided to end her lease because of defendant’s conduct. Her landlord withheld $366 from her security deposit for general apartment cleaning fees.
         Defendant entered into a plea agreement to resolve
all of the charges.4 As part of defendant’s plea agreement,
he pleaded guilty to attempted first-degree burglary and
stalking. Defendant agreed to pay a $4,585.84 compensatory fine, which included costs that the victim had incurred
at Les Schwab for the two punctured tires and a towing service, but restitution was left open.
         At the restitution hearing, the state sought $910 to
replace the victim’s surfboard, $366 for the amount withheld from her apartment security deposit, and $750 for
the four new tires that she purchased from the dealership.
Ultimately, the trial court ordered defendant to pay $5,346
in restitution for damages that included: (1) $455 to repair
the surfboard; (2) $366 for the security deposit loss; and
(3) $375 for the replacement of two tires by the dealership.
        Regarding the surfboard, the trial court acknowledged that it was “unclear to [the trial court] how much
the repair [for the knife cuts on the surfboard] would cost,”
and it ordered defendant to pay $455, which was half of
the replacement value of $910. The victim could not state
     2
       The state charged defendant in Case No. 22CR18356 with two counts of
burglary in the first degree, criminal mischief in the first degree, stalking, two
counts of criminal mischief in the second degree, and theft in the third degree.
     3
       Defendant was charged with violating a court’s stalking protective order
and criminal mischief in the third degree in Case No. 22CR26755. The trial
court granted the state’s motion to consolidate Case No. 22CR18356 and Case
No. 22CR26755.
     4
       In Case No. 22CR18356, defendant pleaded guilty to attempted burglary
in the first degree (Count 1) and stalking (Count 7) and the trial court dismissed
all other counts. In Case No. 22CR26755, defendant pleaded guilty to violating a
stalking protective order (Count 1), and the trial court dismissed the charge for
criminal mischief (Count 2).
22                                               State v. Pool

whether the surfboard was still functional and did not take
it to a shop to obtain an estimate for the repair cost. For
the apartment security deposit, the trial court found that it
was reasonable that the victim had to move out “unexpectedly” due to safety concerns and, as a result, lost some of her
security deposit. As for the tires, the trial court awarded the
victim $375, which represented the cost of two of the four
new tires. Thus, defendant was ordered to pay for a total of
four tires: the two used tires from Les Schwab, which were
included in the compensatory fine, and two new tires from
the dealership, as part of restitution. The trial court also
ordered defendant to pay all or part of the victim’s requested
amounts for lost wages, counseling sessions, scuba gear,
security camera installation, bike part replacements, and
plant replacements.
         Defendant appeals, arguing that the trial court
erred in ordering three specific items of restitution: (1) the
cost of repairing the surfboard; (2) the apartment security
deposit; and (3) the replacement of the two tires from the
dealership.
         We begin our analysis by setting out the relevant
statutes. If a trial court finds a victim suffered economic
damages, a trial court shall order 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.” ORS 137.106(2)(a). “ ‘Economic damages’ means
objectively verifiable monetary losses including but not limited to … 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.” ORS 31.705(2)(a).
         “In short, there are three prerequisites to an order
of restitution: (1) criminal activities, (2) economic damages,
and (3) a causal relationship between the two.” State v.
Pumphrey, 

, 

 (2014), rev den,

 (2015). The state has the burden of proving those
facts by a preponderance of the evidence. State v. Yocum,

, 

 (2011), rev den, 

(2012). “A crime victim ‘incurs’ an expense for the purposes of
awarding restitution if the victim becomes ‘liable or subject
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to’ pay the expense.” State v. Steckler, 

,

 (2010) (quoting State v. Romero-Navarro, 

, 

 (2008), rev den, 

 (2010)).
Questions related to the amount of economic damages “pose
a factual question for the court.” State v. Andrews, 

, 

 (2020) (internal quotation marks and
citation omitted).
         “[D]amages need not be the direct result of the
defendant’s criminal activity.” Pumphrey, 

 (emphasis in original). Rather, the defendant’s criminal
activities must be a “but for” cause of the economic damages that the victim incurs. State v. Gerhardt, 

, 

 (2016). And the economic damages must
be a reasonably foreseeable result of the defendant’s criminal activities. State v. Ramos, 

, 

 (2016). In Ramos, the Supreme Court concluded that the
statutory definition of “economic damages” requires, “when
appropriately raised,” a reasonable foreseeability analysis.

.
A. Surfboard
         Defendant argues that the trial court erred by
ordering him to pay restitution for the cost of repairing the
victim’s surfboard because the amount was not supported
by evidence regarding the cost of repair.5 A trial court commits error if it orders an amount of restitution that is not
supported by the record. State v. Morgan, 

, 

 (2015). As noted above, “objectively verifiable monetary losses” includes “reasonable costs incurred
for repair or for replacement of damaged property, whichever is less.” ORS 31.705(2)(a). To authorize a restitution
award, the evidence in the record must support an objectively verifiable monetary loss suffered by the victim. See
Morgan, 

 (reversing a restitution award
for stolen sprinklers because the “evidence [could not] rationally support the ‘particular amount’ of restitution that the
     5
       As an initial matter, the state argues that defendant did not preserve his
first assignment of error because he did not argue below that the record did
not support imposing $455 in restitution to pay for the repair of the surfboard.
We conclude that defendant preserved his argument regarding the surfboard
because he objected to paying for the replacement cost and noted that the state
did not present evidence as to repair costs.
24                                                State v. Pool

trial court ordered” when the record was devoid of any factual basis for the original requested amount or the reduced
figure); see also ORS 31.705(2)(a) (defining “economic damages” as “objectively verifiable monetary losses”).
         In this case, although the state offered evidence of
the replacement value of the surfboard, it did not provide
evidence that the surfboard was unrepairable and would
need to be replaced. The victim testified that she did not
take the surfboard to a shop to inquire whether the damage
was, in fact, repairable, and, if so, what would be the cost of
repair. As a result, the trial court denied the victim’s initial
request for a restitution award that would replace the surfboard, and it identified the restitution award amount for the
surfboard based on its “amateur view” of the exhibits and
how much it thought it would cost to repair.
          The trial court’s finding that the surfboard would
cost $455 to repair is unsubstantiated by the record—as
evinced by the court’s own statement that “[i]t’s unclear …
how much the repair would cost to repair the stab wounds
in the board and whether that can be replaced.” Hence, the
trial court did not have sufficient evidence to compare the
repair versus replacement costs and award whichever is a
lesser amount to the victim for the surfboard. ORS 31.705
(2)(a). Based on the record, there was insufficient evidence to
demonstrate that the victim incurred a cost that amounted
to $455 for the surfboard, when the evidence did not rationally support that “particular amount” of restitution for
replacement, and the record was “devoid of any factual
basis” for the reduced figure for repair. Morgan, 

. Thus, we conclude that the trial court erred in ordering a restitution award of $455 for the surfboard.
B.   Security Deposit
         Next, defendant argues that the trial court erred
in finding that his criminal activities were a “but for” cause
of the victim’s lost deposit money, because she would have
incurred those costs in the future when she moved out
“irrespective of defendant’s criminal conduct.” The trial
court found that, absent defendant’s criminal acts—which
included two contacts of the victim at her apartment in
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the two months before her lease ended and after she had a
stalking protective order in place—the victim would not have
“had to move out somewhat unexpectedly … due to safety
issues” and would not have incurred the move-out costs on
that specific occasion. The court’s finding is supported by
the victim’s testimony at the restitution hearing that she
moved for safety reasons, and she would have stayed had
defendant not broken into her home. See Andrews, 

 (in restitution cases, “but for” causation is a factual
question for the trial court).
         Defendant’s reliance on State v. Wilson, 

, 

 (2004), and Steckler, 

,
to argue that he is not liable for the deposit money is misplaced. We reversed the restitution award in each of those
cases because there was no evidence that the defendant’s
crimes had caused the victim’s economic damages. Wilson,

 (rejecting restitution for labor expense
because there was no evidence that the defendant’s prison
escape caused the correction facility employees to work additional hours; the state “incurred [the costs] irrespective of
specific violations of law” like the defendant’s); Steckler, 

 (rejecting restitution for surveillance systems because there was no proof that the defendant’s robberies caused the store to incur such expenditures when it
intended to install such systems regardless of defendant’s
crimes).
         Here, by contrast, defendant’s crimes caused the
victim to move on short notice, and that “unexpected” move
caused her to incur the expenses. The possibility that, absent
defendant’s criminal conduct, she might have moved at some
point in the future and, at that time, might—but would not
necessarily—have incurred similar costs does not prohibit
the inference that defendant’s conduct caused her to incur
the expenses. Accord State v. Ceballos, 

, 

, rev den, 

 (2010) (rejecting
homicide defendant’s argument that his restitution should
not include funeral expenses for the victim because the victim “would someday have died anyway and would have had
funeral expenses,” explaining that, “if defendant had not
killed the decedent, the funeral expenses at issue would not
26                                               State v. Pool

have been incurred”). We conclude that the trial court did
not err in awarding restitution in the amount of $366 for the
loss from the victim’s apartment security deposit.
C.   Tires
         Lastly, defendant contests the amount that the trial
court imposed for the replacement of the victim’s two additional tires from the dealership. In defendant’s view, the two
new tires that the court included in the restitution were to
replace the used tires from Les Schwab, which defendant had
already paid for as part of the compensatory fine. He argues
that Les Schwab’s replacement of the two slashed tires with
used tires with different traction or tread was negligent and
that it was not reasonably foreseeable that his criminal acts
would lead to the victim paying the dealership to correct Les
Schwab’s original repair. See State v. Alonso, 

, 

 (2017) (restitution amounts are limited to reasonably foreseeable damages—the harm “must be
within the general class of harms that one reasonably would
anticipate might result from the defendant’s conduct” (internal quotation marks and citation omitted)).
         Reasonable foreseeability is, “as a general matter, a
factual question for the [trial] court.” Ramos, 

(citing Cont. Plants v. Measured Mkt., 

,

 (1976)). As mentioned above, we assume that
the “trial court implicitly resolve[d] factual disputes consistently with its ultimate conclusion” where those facts are
supported by the record. Pereida-Alba, 

.
         At the restitution hearing, the victim agreed with
the prosecutor that she bought the new tires from the dealership “[a]s a result of … one being punctured and the rest
needing to be replaced because they had to have consistent
tread.” That is, she “had to replace all four [tires] because
the tread didn’t match, and [her car is] an all-wheel-drive
vehicle.” On cross-examination, the victim agreed that “the
reason” that she replaced the tires at the dealership “was
because the two tires that Les Schwab installed had a different traction on them.” As noted above, the court awarded
restitution for two of the new tires, making defendant
responsible for the cost of a total of four tires.
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         In defendant’s view, the victim’s testimony on cross-examination required the court to find that, but for Les
Schwab’s negligent replacement of the two tires with used
tires that had different traction, the victim would not have
had to replace all four tires. Thus, defendant argues, the
court erred in requiring defendant to pay for the two dealership tires, because Les Schwab’s negligence was not foreseeable to defendant.
         That is one possible inference from the victim’s testimony. However, we understand the court to have drawn
a different inference, which was also permissible: that,
although the initial replacements had different traction,
the need to replace all four tires existed regardless of Les
Schwab’s work because the victim’s vehicle is “an all-wheeldrive vehicle” and so all the tires “had to have consistent
tread.” That understanding is consistent with the court’s
choice to compensate the victim for a total of four tires: the
two used tires, as part of the compensatory fine, and two
of the new tires, as part of restitution. Under that view of
the facts, defendant’s criminal conduct required the victim
to replace all four tires, and the court reimbursed her for
replacing all four tires.
         Given that understanding, defendant’s argument
that he should not be ordered to pay restitution for Les
Schwab’s negligence is based on an incorrect factual premise—that Les Schwab’s initial replacement of the two tires
caused the victim to later have to replace more tires, and,
thus, increased defendant’s restitution. However, on the
court’s view of the facts, Les Schwab’s initial replacement
of the two tires had no effect on the number of tires defendant was ultimately required to pay for; rather, defendant’s
criminal conduct directly resulted in the need to replace
all four tires. If anything, the fact that the initial two tires
were used decreased defendant’s financial obligations; if the
victim had initially replaced all four tires with new tires,
defendant would have paid more overall. Because the initial
replacement was not the cause of the victim’s need to purchase more tires later—to the contrary, that need existed
from the time defendant slashed the first tire—the later tire
purchase was not unforeseeable to someone in defendant’s
28                                              State v. Pool

position. We conclude that the trial court did not err in
ordering the payment of restitution for the two new tires in
the amount of $375.
         In summary, we conclude that: (1) the trial court
erred in ordering a restitution award of $455 for the repair
of the surfboard when there was no evidence in the record
to support that particular figure; (2) the trial court did not
err in awarding a restitution amount of $366 for the security deposit loss, because defendant’s criminal acts, including violating a stalking protective order, were the “but for”
cause of the victim unexpectedly needing to move on short
notice and losing her deposit money as a result; and (3) the
trial court did not err in requiring defendant to pay restitution for the replacement of two tires from the dealership, at
a cost of $375.
         Supplemental judgment imposing restitution reversed
in part; remanded for resentencing; otherwise affirmed.