State v. Weideman

No. 1104            December 24, 2025                    21

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              ASHLEY ROSE WEIDEMAN,
                  Defendant-Appellant.
               Linn County Circuit Court
                 19CR80031; A178880

  Keith B. Stein, Judge.
  Argued and submitted July 16, 2024.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Benjamin Gutman, Solicitor General, argued the cause
for respondent. Also on the brief was Ellen F. Rosenblum,
Attorney General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  POWERS, J.
  Affirmed.
22                                        State v. Weideman

        POWERS, J.
         In this criminal appeal, defendant seeks reversal of
a supplemental judgment imposing $9,290 in restitution for
the lost wages that the mother of the two-year-old victim,
V, incurred after quitting her job to care for V. In a single
assignment of error, defendant challenges the restitution
award and makes three distinct arguments: first, a parent’s
lost wages resulting from an injury to their child are not
recoverable in a civil action, so they cannot be imposed as
restitution; second, V’s mother’s decision to quit her job was
not reasonably foreseeable; and third, V’s mother’s decision
to quit working was voluntary and not necessary. For the
reasons explained below, we affirm.
         We review a restitution order for errors of law and
are bound by the trial court’s factual findings if there is any
evidence in the record to support them. State v. McClelland,

, 

, rev den, 

(2016). In so doing, we examine the evidence in the light most
favorable to the state and determine whether a rational factfinder, accepting all reasonable inferences, could have found
the facts necessary to support the award. State v. Aguirre-Rodriguez, 

, 

 (2021). With that
standard of review in mind, we provide a brief overview of
the factual and procedural history and then discuss more
details as part of the analysis below.
          Defendant pleaded no contest to first-degree criminal mistreatment for unlawfully and knowingly causing
physical injuries to two-year-old V, whom she babysat during
the day. V’s injuries included a cigarette burn on the back of
her hand, and she had bruises on multiple parts of her body.
An investigation revealed that defendant had expressed
animosity toward V, V had displayed fear of defendant, and
defendant had performed a search on her phone—while
V was in defendant’s care—for “[w]ays to cause pain to
somebody without marks.” Following defendant’s conviction,
the state sought restitution for one year of lost wages for V’s
mother, who did not work for two years following V’s injuries. After hearing V’s mother’s testimony and the parties’
arguments, the trial court awarded restitution for V’s mother’s lost wages for the first year that she did not work and
Cite as 

 (2025)                                       23

stayed home to care for V. The trial court made extensive
findings on the record and ultimately awarded restitution
in the amount of $9,290 for one year of lost wages minus the
amount V’s mother would have spent on childcare. In particular, the trial court explained:
      “I do find that the losses that have been alleged by the
  State are, in fact, quantifiable and they meet the definition
  of economic damages per the statute.
     “Next, I find that there is a causal relationship between
  the two[.] ….
      “I do not—I do not believe that had this child been 16
  years old that her taking a year off work would have made
  any sense, but given the tender age of the child, what was
  it two years old, back when it occurred, and now four years
  old, I think that society has a massive interest in safeguarding the most vulnerable, particularly when they’re
  victims of crimes. And so I do give deference to the one person on the planet who’s probably best qualified, even maybe
  more so than some experts who don’t know the kid very
  well, but the one person on the planet most qualified to tell
  me when that kid’s trauma is—is subsiding is the witness
  who testified, the child’s mother.
       “On the other hand, I do see that, you know, two years is
  a long time. And so I do accept—I do accept her testimony
  that the child turned a corner at about the one year mark.
  ….
     “I also am prepared to find that it is for a foreseeable
  kind of thing. Let me put it this way. If the child had needed
  a week of therapy, that would have been, I think, easily
  foreseeable and the Court could easily make that finding.
  And while a year seems like a long time, again, based on
  the tender age of the child, I find that that’s within the
  constellation of harms that could have been anticipated by
  this type of conduct, and that the mom would have to stay
  with her child. ….
      “So, I am going to accept her testimony about the one
  year. I am going to find that it is a foreseeable harm, particularly in light of cases I’ve read, [State v. Ramos, 

, 

 (2016),] and [State v. Pumphrey, 

, 

 (2014), rev den, 

 (2015),]
  where the harms are the type of harms where the victim,
  like, you know, there was a type of trauma experienced by
24                                              State v. Weideman

     the victim, the victim was required to take work off and
     fix the issue. And the Court said no, that’s okay. And even
     though in those cases it might have been a day or two that
     the adult victim was traumatized and needed to take work
     off to deal with it, because it’s a child, I don’t find that a
     year is unreasonable.”
This timely appeal follows.
          We begin with defendant’s first argument that a parent’s lost wages resulting from an injury to their child are not
recoverable in a civil action and are thus noneconomic damages and cannot be imposed as restitution. We understand
her contention to be a categorical argument that a parent’s
lost wages for a crime against that parent’s child are never
recoverable as restitution because they are not recoverable
in a civil action. The state remonstrates that defendant did
not preserve her argument and that any error does not meet
the requirements for plain error review. We agree with the
state’s contention that defendant did not preserve her categorical argument. See State v. Skotland, 

, 

 (2024) (explaining that “the winds of preservation
can be gauged by looking to the weathervane of trial court
surprise: Would the trial court be taken aback to find itself
reversed on this issue, for this reason?” (emphases omitted)).
         At the restitution hearing, defendant explained that
she understood the state to be requesting compensation for
noneconomic damages, specifically for V’s mother’s “peace of
mind,” and she asserted that noneconomic damages are not
recoverable as restitution. On appeal, however, defendant
makes an entirely new argument, viz., that the damages
are noneconomic because they are not recoverable in a civil
action. Although defendant raised the “common thread” of
noneconomic damages during the restitution hearing and on
appeal, her argument on appeal is “qualitatively different.”
See State v. Gray, 

, 

 (2017),
rev den, 

 (2018) (observing that “the presence of
a common thread between an objection at trial and an argument on appeal does not satisfy the preservation requirement
if the two arguments are qualitatively different” (internal
quotation marks omitted)). Moreover, defendant conceded in
her closing argument that some of V’s mother’s lost wages
Cite as 

 (2025)                                 25

were recoverable, specifically those that she incurred when
she missed work because she had been subpoenaed or if she
had to pay a caregiver for V during those times. Because
defendant conceded that some of the lost wages were recoverable, we cannot conclude that she preserved an argument
that a child victim’s parent’s wages are never recoverable or
were categorically unrecoverable.
         Defendant asserts that even if the argument is not
preserved, we should review for plain error. See generally
State v. Wyatt, 

, 

 (2000) (explaining that the general rule is that “an issue not preserved in
the trial court will not be considered on appeal”); ORAP
5.45(1) (allowing discretionary review of “plain” errors). For
a claimed error to be “plain,” the error must be one of law,
obvious and not reasonably in dispute, and apparent on the
record. State v. Vanornum, 

, 

(2013). If those requirements are satisfied, the second step
is to decide whether to exercise our discretion to consider
and correct the error. Ailes v. Portland Meadows, Inc., 

, 

 (1991).
          In support of her plain-error argument, defendant
contends that State v. Barkley, 

, 

, cert
den, 

 (1993), held that a parent’s lost wages that
result from a crime against their child are not recoverable in
a civil action and therefore not recoverable as restitution. The
state counters that defendant reads Barkley, which involved
a compensatory fine, too broadly and asserts that Barkley
does not apply to these circumstances because the court held
only that there is no theory of liability against a tortfeasor
for wages lost while accompanying a child victim to court.
In the state’s view, Barkley did not categorically hold that
a parent never has a theory of liability for any lost wages in
any circumstance. Because the parties present two competing arguments that are both plausible and defendant has not
pointed to a particular case or statute that would bar parents
from recovering lost wages in a civil action under these circumstances, we conclude that the potential error, if any, was
not legally obvious. See State v. Farmer, 

,

 (1993) (explaining that an “open issue” is not an
“obvious” error if it is “reasonably open to dispute”); State v.
26                                        State v. Weideman

Gallegos, 

, 

, rev dismissed,

 (2020) (explaining that the competing arguments
offered by the parties demonstrated that the alleged error
was reasonably in dispute, which “has the effect of precluding plain-error review”).
         We turn to defendant’s second argument concerning
foreseeability. The state again asserts that defendant did not
preserve her argument for our review. We disagree with that
contention given that both parties made arguments about
foreseeability at the restitution hearing, and the trial court
made specific findings on foreseeability. See State v. Walker,

, 

 (2011) (explaining that one
of the purposes of the preservation requirement is to ensure
that the opposing party and the trial court were given enough
information “to be able to understand the contention and to
fairly respond to it”).
         On the merits, defendant argues that the lost wages
were not a foreseeable result of the crime because they were
not a direct result of the crime and too attenuated in time.
Defendant acknowledges that a reasonable person in defendant’s position would have foreseen V’s mother taking off
several days from work but not that she would work for two
weeks following the incident and then quit her job completely and remain unemployed for a year. The state contends that it is not unforeseeable as a matter of law that a
parent who has been traumatized by an injury to their child
would decide to take time off work and assume responsibility for the child’s care rather than entrusting the child to
another caregiver.
         To determine causation, which is a requirement to
award restitution under ORS 137.106, a trial court must
consider “whether there is a ‘but-for’ connection between the
victim’s damages and the crime and whether the victim’s economic damages were a reasonably foreseeable result of the
defendant’s crime.” State v. Andrews, 

, 

 (2020). The inquiry as to whether damages were reasonably foreseeable is “whether a reasonable person in the
defendant’s position would have foreseen that someone in
the victim’s position could reasonably incur damages of the
same general kind that the victim incurred.” State v. Ramos,
Cite as 

 (2025)                                                    27

, 

 (2016). The question of foreseeability is, as a general matter, a question of fact for the trial
court. 

         Here, the trial court found that it was foreseeable
that V’s mother would have to take time off work to care for
her young child. The court emphasized V’s “tender” age and
society’s interest in protecting vulnerable people. Moreover,
the court ordered restitution for only one year of lost wages,
finding that it was reasonable for V’s mother not to work
for one year and that V’s condition improved after one year.
Because there is evidence in the record to support the court’s
findings, we will reverse under our standard of review only if
we conclude that V’s mother taking off a year from work was
unforeseeable as a matter of law. Here, although the trial
court was not required to find that taking a year off from
work was reasonably foreseeable in these circumstances, we
cannot say that it was unforeseeable as a matter of law that,
when defendant injured a two-year-old child, the child’s parent would take a year off from work to care for the young and
traumatized child. See, e.g., Fazzolari v. Portland School Dist.
No. 1J, 

, 

 (1987) (observing that the
concept of foreseeability refers to the “generalized risks of
the type of incidents and injuries that occurred rather than
predictability of the actual sequence of events”).
         We turn to defendant’s third argument, viz., that the
trial court erred in ordering restitution for one year of lost
wages, because V’s mother’s decision to quit her job was “voluntary” rather than necessary. See ORS 31.705(2)(a) (defining
“economic damages” as requiring that they be “necessarily
incurred”).1 Although the state again disputes preservation,
we assume without deciding that the issue was preserved and
conclude that the trial court did not err. On appeal, defendant’s argument is narrow: she contends that, based on V’s
mother’s own testimony, it was mother’s “voluntary” decision
to quit work and stay home with V, rather than being a “necessary” expense caused by defendant’s criminal conduct. On
this record, the trial court could find, as it implicitly did, that
    1
      ORS 31.705 has been amended since the underlying conduct in this case.
See Or Laws 2021, ch 478, §§ 1, 3 (moving the definition of “economic damages”
from ORS 31.705 to ORS 31.710). However, because those amendments do not
affect our analysis, we refer to the current version of the statute in this opinion.
28                                         State v. Weideman

it was “necessary” for V to be cared for at home for a period of
time because of defendant’s criminal conduct. Because there
is some evidence to support the trial court’s finding that one
year of V’s mother’s lost wages was a necessarily incurred
expense, we conclude that the trial court did not err in ordering defendant to pay restitution for one year of lost wages. See
State v. Jordan, 

, 

, rev den, 

 (2012) (explaining that we are bound by a trial court’s
finding of fact that the expenses were necessarily incurred if
there is “some evidence from which the trial court could find
that the disputed expenses were necessary” (emphasis omitted)); see also State v. Perdew, 

, 

 (2020) (explaining that to prove necessity, the state
“must present evidence sufficient to support a finding” and
concluding that the evidence was “sufficient to support the
trial court’s finding that the medical treatment that [the victim] received was necessary”).
        Affirmed.