359 P.3d 519
Or. Ct. App.2015Background
- Defendant was arrested and later pleaded guilty to strangulation of his wife; a no-contact order was entered while he was jailed.
- Defendant repeatedly violated the no-contact order after his arrest and while in custody.
- The victim hired an attorney to enforce the no-contact order and to obtain a FAPA restraining order; she paid $1,880 in fees.
- At sentencing the victim sought restitution under ORS 137.106(1)(a) for those attorney fees; the trial court awarded them.
- Defendant appealed, arguing the attorney fees resulted from his post-arrest violations of the no-contact order, not from the underlying strangulation offense.
- The Court of Appeals reversed the restitution award, concluding the fees were caused by post-crime conduct, not the crime of strangulation itself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney fees for enforcing a no-contact/FAPA order are recoverable as restitution under ORS 137.106(1)(a) | Fees were economic damages incurred to redress harm from the defendant’s criminal conduct (domestic violence) | Fees were incurred because of defendant’s repeated violations of the no-contact order after the crime, not the strangulation itself | Reversed: fees not recoverable as restitution for the strangulation conviction because they resulted from post-crime conduct |
| Proper causation standard for restitution (but-for vs. sufficiency) | Victim: crime caused need for protection; fees necessarily incurred to redress harm | Defendant: restitution requires a causal link to the convicted crime, not to subsequent unlawful acts | Majority: restitution requires that expenses be necessarily incurred to redress harm from the criminal conduct; here causation failed because subsequent violations caused the fees |
| Whether foreseeability of subsequent acts supports restitution for expenses tied to later conduct | Victim: foreseeability of further abuse makes protective measures part of redress for initial crime | Defendant: foreseeability alone cannot make post-conviction unlawful acts the basis for restitution for the earlier offense | Majority: foreseeability does not permit recovery for expenses caused by unlawful acts committed after the offense underlying the conviction |
| Effect of prior precedent (e.g., Ramos, Pumphrey) on recoverability | Victim relied on precedent allowing restitution for foreseeable or consequential expenses | Defendant argued precedent distinguishes expenses that remediate harm from the charged crime vs. costs from later conduct | Majority: distinguishes Ramos/Pumphrey facts and declines to extend restitution to fees caused by subsequent violations; dissents would apply a broader but-for causation rule |
Key Cases Cited
- State v. Pumphrey, 266 Or. App. 729 (affirming restitution for expenses that redressed harm caused by stalking violations)
- State v. Doty, 60 Or. App. 297 (allowing restitution where defendant’s burglary facilitated later losses)
- State v. Ramos, 267 Or. App. 164 (upholding restitution for insurer’s investigative/legal expenses tied to arson/insurance fraud)
- State v. Stephens, 183 Or. App. 392 (restitution allowed when losses flowed from defendant’s criminal conduct)
- State v. Bullock, 135 Or. App. 303 (restitution for costs caused by emotional/psychological harms from sexual offenses)
- State v. Porter, 113 Or. App. 326 (restitution for vehicle damage resulting from police pursuit triggered by defendant)
- State v. Mahoney, 115 Or. App. 440 (upholding restitution for victim’s attorney fees incurred in prosecuting sexual abuse)
- State v. Jordan, 249 Or. App. 93 (restitution supported by victim/family testimony about perceived necessity of expenses)