422 P.3d 357
Or. Ct. App.2018Background
- Defendant pleaded guilty to first-degree aggravated theft (Count 5) and agreed to pay restitution for all counts in the indictment; the state dismissed four second-degree burglary counts (Counts 1–4) as part of the plea deal.
- The indictment named four different victims/buildings for the burglary counts; none of those counts identified KDRV Broadcasting or its insurer Allianz as victims.
- At the plea hearing the state described the conduct generally (e.g., pushing down power poles, removing copper from multiple buildings on BLM property). The court accepted the plea and deferred the restitution amount.
- At a later restitution hearing KDRV’s engineer testified to $13,358.18 in losses (Allianz paid $8,358.18; KDRV $5,000 deductible). The state sought restitution to KDRV and Allianz.
- Defendant objected, arguing he was not convicted of, nor admitted to, conduct causing KDRV’s losses and that KDRV was not a named victim in the indictment. The trial court awarded restitution to KDRV and Allianz; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could order restitution to KDRV/Allianz when KDRV was not named in the indictment | State: theft count (broad time and "property of another") encompasses KDRV losses | Ortega: plea and factual basis did not admit theft of KDRV property; KDRV not a charged victim | Reversed as to KDRV/Allianz — restitution not authorized because losses were not tied to convicted/admitted criminal activity |
| Whether the factual basis/admissions covered KDRV-related conduct | State: plea factual basis and testimony linked defendant's conduct to buildings at the site, encompassing KDRV | Defendant: factual basis described copper theft and pole damage, not fuel/tank/generator losses claimed by KDRV | Court: record lacks an unequivocal admission or indictment linkage to KDRV losses; restitution improper |
| Whether restitution can cover losses outside dates alleged in indictment | State: not raised below | Defendant: argued timing not proven | Issue not preserved on appeal; court did not address it |
| Whether causal-relationship precedent (Doty/others) supports restitution here | State: general precedents allow restitution if criminal acts caused losses | Defendant: distinguishes causal-cause cases; here scope of admitted/convicted activity is dispositive | Causation not disputed; dispositive question is whether criminal activities admitted/convicted included KDRV losses — they did not |
Key Cases Cited
- State v. Dorsey, 259 Or. App. 441 (concluding restitution cannot be imposed for thefts outside the time range admitted or charged)
- State v. Kirkland, 268 Or. App. 420 (restitution requires proof of criminal activities, economic damages, and causal relationship; admissions must be unequivocal)
- State v. Akerman, 278 Or. App. 486 (defendant cannot be required to pay restitution for crimes not convicted or not admitted)
- State v. Thornton, 103 Or. App. 296 (no restitution for items not charged or admitted; admission/charge scope controls restitution liability)
- State v. Doty, 60 Or. App. 297 (restitution appropriate where defendant's admitted conduct was a but-for cause of broader losses)
- State v. Parsons, 287 Or. App. 351 (conviction and restitution analysis is informed by the scope of the plea and factual admissions)