Defendant appeals from a judgment of conviction for failure to perform the duties of a driver when property is damaged, an offense commonly termed “hit and run.” ORS 811.700(l)(a). He assigns error to the trial court’s denial of his motion for judgment of acquittal and to the court’s order under ORS 811.706 requiring him to pay $500 compensation to the victim as a condition of probation. We affirm.
The relevant facts are not disputed. Janell Suell was driving her car through a Portland intersection when it was struck on the left side by a car driven by defendant. Defendant got out of his car and walked away without providing any information to Suell. Some time later, while Suell and police officers were still at the scene, defendant returned and identified himself to the officers as the driver of the car that struck Suell’s. A police officer at the accident scene cited defendant for “hit and run” under ORS 811.700(l)(a), which makes it a criminal offense to leave the scene of a vehicular accident involving property damage to another vehicle without performing certain duties, such as providing identifying information to the owner of the damaged property.
Damage to Suell’s car totaled approximately $5,000, and her car had to be towed from the scene. According to the police officer who cited defendant, Suell had “no visible injuries” at that time. In fact, however, she later was diagnosed as suffering from a “cervical lumbar sprain” caused by the collision and was treated for that injury. At trial, after the state’s closing argument, defendant moved for a judgment of acquittal, arguing that a person is not guilty of “hit and run” under ORS 811.700(l)(a) if the collision causes personal injury in addition to property damage. The trial court denied the motion, and the jury found defendant guilty. The trial court sentenced defendant to two years’ bench probation and, based on the amount of the insurance deductible Suell had paid toward the cost of repairing her car, ordered that defendant pay “restitution” to Suell in the amount of $500 pursuant to ORS 811.706.
Defendant’s first assignment of error challenges the trial court’s denial of his motion for judgment of acquittal. *167 Defendant’s argument is premised on the text of ORS 811.700(l)(a), which provides:
“A person commits the offense of failure to perform the duties of a driver when property is damaged if the person is the driver of any vehicle and the person does not perform duties required under any of the following:
“(a) If the person is the driver of any vehicle involved in an accident that results only in damage to a vehicle that is driven or attended by any other person the person must perform [the enumerated duties].”
(Emphasis added.) Violation of that provision is a Class A misdemeanor. ORS 811.700(2). Defendant contrasts the misdemeanor “hit and run” offense with the felony “hit and run” offense under ORS 811.705, which states, in part:
“(1) A person commits the offense of failure to perform the duties of a driver to injured persons if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not [perform all of the enumerated duties].”
See also ORS 811.705(2) (making a violation of subsection (1) a Class C felony). Defendant takes the position that, when an accident causes personal injury in addition to property damage, a driver’s failure to perform specified duties can be a violation only of the felony “hit and run” statute because the fact of the personal injury takes the circumstances outside the scope of the misdemeanor “hit and rim” statute. According to defendant, either he was guilty of felony “hit and run” or he was not guilty of any offense at all, and the trial court, therefore, should have granted his motion for judgment of acquittal.
Our analysis of the statute’s meaning begins with text and context.
See PGE v. Bureau of Labor and Industries,
Both parties’ views find support in dictionary definitions. As used in ORS 811.700(l)(a), “only” is an adverb modifying the verb “results in.” So used, the word can mean “exclusively,” which would support the conclusion that defendant urges. 1 On the other hand, as the state argues, “only” when used as an adverb also can mean “at the very least.” See Webster’s Third New Int’l Dictionary, 1577 (unabridged ed 1993) (defining the adverb “only” in part as “exclusively, solely” and “at the very least”). Isolating the subsection in which “only” appears in the statute, the word plausibly could take on either of those meanings. 2
That fact alone, however, does not render the statute ambiguous. The question remains whether both meanings are plausible in the context of the statutory scheme as a whole. As we explained in
Steele v. Employment Department,
*169
“[M]any of the words in our language have several meanings or shades of meaning. However, it does not follow from the fact that there are several variations of how a word is defined in the dictionary that all of the variations are pertinent whenever the word is used, or that each variation is an arguably plausible description of what the word means as it is used in a particular statute. The subject and purpose of the statute, together with the statutory language that surrounds the word in question, narrow the array of definitional choices that dictionaries alone afford and go far in identifying the intended meaning of the word as used in the statute.”
See also To v. State Farm Mutual
Ins.,
The context of the disputed word in this case reveals ORS 811.700 to be one of several statutes describing the duties that a motor vehicle driver must perform when involved in an accident. The legislature has organized the offenses by type of damage or injury and the accompanying penalty. ORS 811.700 identifies a driver’s duties when an accident results in property damage and makes the offense a Class A misdemeanor. ORS 811.705 defines a driver’s duties for an accident that results in injury or death to a person and makes the offense a Class C felony. Finally, ORS 811.710 describes a driver’s duties when the driver knowingly strikes and injures a domestic animal and makes the offense a Class B traffic infraction.
The statutes have parallel structures. Subsection (1) of the property damage statute describes that offense as one committed “when property is damaged if the person * * * does not perform [the] duties required” as specified in the statute’s further subsections. ORS 811.700(1). Similarly, subsection (1) of the personal injury statute describes that offense as one committed “if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not do all” of the duties enumerated in the statute. ORS 811.705(1). Finally, the animal injury provision describes that offense as one committed “when an animal is injured if the person knowingly strikes and injures a *170 domestic animal and the person does not do all” of the duties specified in the statute’s subsections. ORS 811.710(1).
None of the quoted portions of the cited provisions includes the word “only” or any other language suggesting that the various “hit and run” provisions address mutually exclusive circumstances. That is, none of the provisions requires or textually contemplates that a driver’s obligation to perform the enumerated duties is limited to circumstances in which an accident involves one, rather than one or more, of the duty-triggering types of damage or injury. Indeed, as a matter of common sense and experience, accidents frequently involve multiple kinds of damage. For example, a driver of a vehicle might swerve left to avoid a dog but nevertheless hit both the dog and an oncoming car. Under defendant’s proposed interpretation of the property damage statute, the swerving driver would be free to leave the scene without exchanging any information with the other driver. Instead, the driver’s only obligations would run to the dog and its owner. By contrast, if the driver swerved into the other lane and missed the dog but collided with the other car, the driver would owe the other driver the full set of duties identified by the statute. That outcome frustrates rather than serves the statutory goal of deterring drivers from fleeing an accident scene without performing required duties, and thereby escaping financial responsibility for damage they have caused.
See State v. Martin,
Defendant’s argument to the contrary relies on paragraph (a) of subsection (1) of the property damage statute, which describes a driver’s duties when an accident results “only” in damage to a vehicle that is driven or attended by another. That paragraph is one of three that specify a driver’s duties when involved in a vehicular accident involving property damage, each imposing a slightly different set of duties depending on the character of the property damaged. Paragraph (a) addresses accidents involving another “driven or attended” vehicle — that is, a multi-vehicle accident in which *171 the owner or operator of the other vehicle is present. Paragraph (b) addresses accidents involving an unattended vehicle. Finally, paragraph (c) addresses damage to fixtures or property legally upon or adjacent to a highway. In short, the scope of ORS 811.700 is limited to property damage of various, and limited, kinds. It does not purport to control the duties that attach where damage of other types is involved. That fact supports the state’s proposed interpretation that “only” means merely “at the least.”
One final consideration leads us to so conclude. As we have held, personal injury alone does not give rise to any duties under ORS 811.705; rather, a defendant must be shown to have had knowledge of the injury.
See State v. Van Walchren,
In sum, ORS 811.700 describes a driver’s responsibilities when an accident involves property damage. It does not define or describe the driver’s duties when there are other kinds of injury or damage. That is the function of ORS 811.705, which addresses a driver’s duties when an accident results in personal injury, and of ORS 811.710, which addresses a driver’s duties when a domestic animal is injured. The duties that the different statutes impose are independent. Thus, in this case, if the state could have established, either by direct evidence or by inference, that defendant knew of Suell’s personal injuries at the time of the accident, the state could have prosecuted him under the felony “hit and run” statute (ORS 811.705) pertaining to duties of a driver in an accident resulting in personal injury. Any ability to do so, however, did not preclude the state from also charging and seeking a conviction under the misdemeanor “hit and run” statute (ORS 811.700), when, as here, an independent set of duties arose because the accident resulted in property damage to an attended vehicle.
See State v. Talbert,
We turn to defendant’s second assignment of error, in which he argues that the trial court erred in ordering him, under ORS 811.706, to pay Suell $500 to compensate her for her out-of-pocket vehicle repair costs. Defendant does not dispute that the award in this case was authorized by the statute itself. Rather, defendant challenges the award on the theory that the statute is unconstitutional. Defendant’s constitutional arguments are loosely focused but appear to reduce to three basic propositions. First, defendant argues that the amount authorized to be awarded is in the nature of a civil damages award rather than a criminal sanction and, therefore, constitutionally cannot be imposed without a civil jury trial. Defendant also argues that, even if an award under the statute is criminal in nature, it is unconstitutionally *173 “excessive” because it lacks an adequate nexus to the criminal conduct that is the basis of a “hit and run” conviction. Lastly, defendant argues that the award violates due process principles because it is not subject to meaningful post-judgment review.
Defendant’s challenges are best understood in the context of Oregon’s restitution laws as a whole and the circumstances that led to the enactment of ORS 811.706. Before 1977, a trial court was authorized to order, as a condition of probation, “reparation or restitution to the aggrieved party for the damage or loss caused by [the] offense, in an amount to be determined by the court.” ORS 137.540(10) (1975). The pre-1977 statute did not define the terms “reparation or restitution,” nor did it describe who was an “aggrieved party” entitled to compensation for damage or loss. In
State v. Stalheim,
As a result of the “legal and practical complexities” of the statute’s broad terms, the Stalheim court construed the statute narrowly in several respects. First, it held that awards under the statute could be imposed only as compensation for liquidated or easily measurable losses arising from the adjudicated criminal conduct. That is, the court authorized awards only for “easily perceived” losses rather than speculative ones. Id. at 687-89. Likewise, to ensure the rehabilitative — and thus penal — pin-pose of any such award, the court limited restitution under the former statute to the direct victim of the criminal conduct, rather than extend it to *174 persons who might have suffered loss indirectly as a result of the direct victim’s death, injury, or other losses. Id. at 688. Finally, the court held that, when the amount to be imposed is disputed, a defendant is entitled to a hearing on that issue. Id. The court concluded its opinion by acknowledging that the limitations it was imposing were, in part, policy-driven; the court therefore invited “legislative scrutiny” of the statute’s broad terms. Id. at 689.
The legislature accepted that invitation in short order by enacting, in 1977, much of what continues in force as the current restitution scheme.
See
ORS 137.103 to ORS 137.109. The enactments were intended to codify
Stalheim
in certain respects and to depart from it in others.
State v. Dillon,
As the Supreme Court has observed of the 1977 restitution enactments, the damage award authorized by that scheme remains fundamentally penal in nature, because “[i]t is intended to serve rehabilitative and deterrent purposes by causing a defendant to appreciate the relationship between *175 his criminal activity and the damage suffered by the victim.” Id. at 179. The court characterized the restitution scheme as a “peculiar blend of both civil and criminal law concepts,” one that borrowed from civil compensatory concepts by basing an award on the amount of special damages that could be awarded in a civil case and by requiring payment to the victim rather than to the state. Id. But the court in Dillon rejected the idea that those aspects of the scheme converted criminal restitution into civil compensation:
“In spite of this resemblance [to civil liability and recovery], restitution was clearly not intended to be the equivalent of a civil award. For example, it does not necessarily fully compensate the victim. There are no general or punitive damages. Unlike a civil recovery, defendant cannot be required to pay damages beyond his ability to pay. Instead, ORS 137.109(1) specifically provides that a restitution order does not impair a person’s right to bring a civil action against the defendant, although there is a credit for amounts paid as restitution, and some collateral estoppel effect under ORS 137.109(2). The legislative history makes clear that the statute’s purposes are penal, not compensatory. Thus, restitution must be understood as an aspect of criminal law, not as a quasi-civil recovery device.”
Id. at 179-80. The court noted that, instead of converting restitution into a civil compensatory award, the civil aspects of the restitution scheme served to circumscribe the criminal court’s sentencing authority:
“The court does not have authority to require whatever recompense it deems would have rehabilitative and deterrent effect. Its authority is limited to what would otherwise be special damages recoverable in civil proceedings by specified persons or entities. Therefore, the first question before a sentencing court is ‘what restitution, if any, will best serve rehabilitative and deterrent purposes?’ and the second is ‘would that be recoverable as special damages if this were a civil case?’. The civil law concepts are merely a limitation of criminal sentencing authority.”
Id. at 180.
The legislative changes made to the restitution scheme in 1977 led to a second relevant decision interpreting the nature and scope of the damages authorized under the
*176
restitution statutes:
State v. Eastman/Kovach,
The legislature responded to that limitation in 1995 by enacting ORS 811.706, the statute that defendant challenges in this case. It provides:
“When a person is convicted of violating ORS 811.700 or 811.705, the court, in addition to any other sentence it may impose, may order the person to pay an amount of money equal to the amount of any damages caused by the person as a result of the incident that created the duties in ORS 811.700 or 811.705.”
As we concluded in
State v. Kappleman,
With that background, we turn to defendant’s constitutional challenges to ORS 811.706, considering first his *177 claim that the statute violates the Oregon Constitution’s guarantee of a civil jury trial. Or Const, Art I, § 17 (“In all civil cases the right of Trial by Jury shall remain inviolate.”). Many of defendant’s arguments parallel the concerns that prompted the Supreme Court in Stalheim to construe the pre-1977 restitution statute narrowly. Specifically, defendant contends that the statute permits a trial court to award “virtually limitless” damages, general and punitive, as well as special. He further contends that the statute authorizes a court to order damages to be paid to a boundless class of potential victims, and to do so without regard to a defendant’s ability to pay the amount imposed or consideration of the rehabilitative effect of the award. Such broad authority, in defendant’s view, renders a damage award under the statute civil rather than criminal in nature, thus necessitating a civil jury trial.
If defendant were correct about the statute’s breadth, we might well be obligated to give the statute a limiting construction to avoid the problems that defendant identifies, as the Supreme Court did in
Stalheim
and has done on other occasions.
See also Salem College & Academy, Inc. v. Emp. Div.,
By its express terms, ORS 811.706 allows a court to order payment of an amount of money equal to “any damages caused by the person as a result of the incident that created the duties” enumerated in ORS 811.700 and ORS 811.705. As we earlier described, the statutes defining the “hit and run” offenses are organized by type of damage or injury, each triggering a particular set of duties depending on the category of damage and injury caused by a vehicle collision. ORS 811.700 relates to property damage and is the provision that defendant violated in this case. It encompasses damage to vehicles (attended and unattended) and damage to fixtures or property legally adjacent to a highway. Given that context, the
*178
reference to damage “caused” as a result of the incident that created the duties under ORS 811.700 plainly is a reference to the vehicular or other forms of adjacent property damage that may trigger the duties to be performed.
4
Thus, a trial court’s authority to award amounts for damages is limited to a relatively small universe of property. In that respect, the damage award authorized by ORS 811.706 not only is much narrower than defendant contends, it is much narrower than the the scope of the general restitution provisions of ORS 137.106.
See, e.g., Dillon,
Necessarily, then, the range of “victims” who may receive such an award is narrower as well. Contrary to defendant’s position, in a prosecution under ORS 811.700, the only persons who may be awarded damages pursuant to ORS 811.706 are owners of damaged property as specified in the “hit and run” statute. Again, that is a narrower class of recipients than is authorized by the general restitution provision. See ORS 137.103(4) (defining “victim” for purposes of general restitution to include any person suffering pecuniary damages as a result of a defendant’s criminal activity). Finally, because the authorized damages are limited to damage to vehicles and a few other types of physical property, they necessarily are liquidated and easily measurable. In short, defendant simply is wrong when he suggests that the statute is written in terms broad enough to encompass punitive and general damages or other similarly speculative, uncertain, and open-ended amounts.
Defendant next argues that a damage award pursuant to ORS 811.706 is civil in nature because the legislature failed to provide the same procedural protections that it has specified for restitution awards under ORS 137.106. Defendant emphasizes that the legislature made no provision for a hearing on imposition of an award under ORS 811.706. We
*179
have previously concluded, however, that as a predicate to imposing a damage award, ORS 811.706 requires the trial court to find that a defendant caused the accident that gave rise to the duties the defendant is convicted of having failed to perform.
Kappleman,
Defendant also points to the statute’s failure to require a trial court to consider the rehabilitative or deterrent effect of such an award and a defendant’s ability to pay it. Defendant is correct that the legislature did not make those considerations explicit in ORS 811.706, but we disagree that a trial court is free to disregard them. In
Stalheim,
the Supreme Court recognized the rehabihtative purpose of an award of restitution under the pre-1977 statute to be inherent in its imposition “as a condition of probation” and, thus, as an aspect of a defendant’s sentence.
*180
As for defendant’s concern that the statute does not require a sentencing court to consider a defendant’s ability to pay, defendant cites no authority for the proposition that a criminal fine, restitution award, or other monetary exaction becomes civil in nature if a defendant lacks an ability to pay the award in full. Notably, the court in
Stalheim
did not find it necessary to impose an ability-to-pay requirement onto the pre-1977 restitution statute to avoid constitutional difficulties. In all events, nothing in ORS 811.706 precludes a defendant from objecting to imposition of a damage award on the basis of an inability to pay the amount to be imposed. In that regard, a defendant’s position under ORS 811.706 is not significantly different from that of a defendant faced with a possible restitution award pursuant to ORS 137.106. Under that statute, a defendant has the burden to object to the imposition of restitution based on inability to pay. In response to such an objection, the trial court must consider defendant’s financial circumstances as a factor, but not necessarily a dis-positive one, in deciding whether to impose a restitution award.
See generally State v. Hart,
Finally, threaded throughout defendant’s arguments is the suggestion that an award under ORS 811.706 is civil rather than criminal in nature because the legislature did not label the award “restitution.” The character of the award is a functional inquiry, however, not a matter of labels.
5
An award under ORS 811.706 has all the earmarks of a penal
*181
sanction and all of the characteristics of a conventional award of criminal restitution or reparation: It is discretionary with the court, both in its imposition and its amount; the person who will receive the award does not receive it as a matter of right, nor will that person necessarily be compensated in full; and it is imposed as an aspect of a defendant’s sentence, to serve rehabilitative and deterrent purposes.
See generally Dillon,
We turn next to defendant’s argument that imposition of the payment violated Article I, section 16, of the Oregon Constitution. That provision declares, in part:
“Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”
Defendant argues that a payment ordered under ORS 811.706 is unconstitutionally excessive because it allows “unlimited” and possibly disproportionate awards of money that are “not causally related” to the criminal conduct that is the basis for a “hit and run” conviction.
Defendant’s argument that the statute permits “unlimited” and speculative awards is refuted by the statute’s text, as discussed above. Beyond that, defendant’s essential thesis appears to be that any aspect of a defendant’s sentence that takes into account something other than the immediate conduct constituting the criminal offense renders that aspect of the sentence constitutionally disproportionate and excessive. Defendant cites no authority for that proposition, nor are we aware of any. Presumably, were defendant correct, a sentencing court could not consider the history of an offender or circumstances surrounding the commission of *182 a crime that go beyond the crime’s elements. Likewise, consistent with defendant’s premise, a fixed fine or similar monetary exaction could never be imposed as a part of a defendant’s sentence.
Contrary to defendant’s position, however, Article I, section 16, does not compel a direct relationship between the strict elements of a criminal offense and all aspects of a defendant’s sentence. Rather, to avoid the prohibition against excessive sentences, “the amount of the restitution order [or other award of reparation] must have a
reasonable
relationship to the criminal conduct of the offender.”
Hart,
“the individual and public interest * * * is to penalize a driver who attempts to escape his financial responsibility for damage or attempts to escape criminal or civil prosecution by fleeing the scene of an accident without giving the required information to the other party.”
Defendant’s final constitutional challenge to the statute is based on the federal Due Process Clause. US Const, Amend XIV (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]”). Relying on
Honda Motor Co., Ltd. v. Oberg,
But equally to the point, Oberg’s due process-based requirement of judicial review is satisfied in this case. On remand in
Oberg,
the Oregon Supreme Court determined that the appropriate standard of review of a civil punitive damage award is whether the award “is within the range that a rational juror would be entitled to award in the light of the record as a whole.”
Oberg v. Honda Motor Co.,
Affirmed.
Notes
The precise dictionary definition that defendant relies on is drawn from the definition of “only” used as an adjective, as would be apt if the legislature had phrased the sentence “results in only property damage,” rather than “only results in property damage.” Largely the same meanings that the parties rely on can be attributed to the word “only” when used either as an adverb or adjective. See, e.g., Bryan A. Garner, A Dictionary of Modern Legal Usage, 390 (1987) (observing that the term “only” is “perhaps the most frequently misplaced of all English words”); Edward D. Johnson, The Handbook of Good English, 374 (1991) (“only is frequently placed carelessly in a sentence so that it is not clear what it modifies”). In this instance, we see no difference in the potential meanings to be ascribed to the term “only” based on whether it modifies “results in” or “property damage.”
In some contexts, the word “only” cannot plausibly assume both meanings. For example, in
Osborn v. PSRB,
In 1999, the legislature substituted the word “crime” for the reference to “criminal activities.” Or Laws 1999, ch 1051, § 124. That change, however, would not alter the conclusion in Eastman /Kovach.
Although we need not reach it, the legislative history of ORS 811.706 supports that interpretation. See, e.g., tape recording, Senate Judiciary Committee, HB 2811, May 2,1995, Tape 135, Side B (testimony of Rep. Prozanski, statingthat the purpose of ORS 811.706 was to permit a person who “has had their car sideswiped or their fence knocked down” to “recoup their restitution or their damages”).
As earlier observed, proponents of the enactment of ORS 811.706 referred interchangeably to an award under the statute as “restitution” and “damages.” See
In
Hart,
the court questioned whether the constitutional prohibition on “excessive fines” extends to restitution awards. But the court found it unnecessary to decide that point because the court has a responsibility by statute to review any aspect of a criminal sentence for excessiveness.
Hart,
Defendant’s failure to challenge the particular award imposed is not surprising. The trial court gave defendant the benefit of a full hearing on whether to order defendant to pay Suell for her out-of-pocket vehicle repair expenses. In imposing the $500 amount, the trial court carefully considered the purpose to be served by the award, the appropriate amount to impose in light of that purpose, and defendant’s financial circumstances:
“[I]n this case I do think that although the defendant is without employment at the moment because of his physical condition, he will be able to engage in gainful employment in the future and within the period of probation in this case, that it would not be an undue hardship on him to pay some restitution at least in this case.
“Especially if it’s set on an installment basis, and to pay restitution or pay damages, however you want to define those, would have a rehabilitative effect on the defendant.
“However, I think that the damages to be awarded need to be construed fairly narrowly in this case or in this situation, and in this case in particular, and, therefore, I’m only going to award $500 to represent the deductible paid by the victim as restitution or as damages in the form of restitution to be paid to the victim.”