State v. Page

672 February 14, 2024 No. 91

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KENNETH RAYMOND PAGE,

Defendant-Appellant.

Douglas County Circuit Court

20CR42167; A178281

William A. Marshall, Judge. (Supplemental Judgment

entered March 29, 2022)

Ann Marie Simmons, Judge. (Judgment entered

February 22, 2022)

Submitted October 3, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Morgen E. Daniels, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Colm Moore, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

Affirmed.

Cite as 330 Or App 672 (2024) 673

674 State v. Page

MOONEY, J.

Defendant ignited a firework mortar that misfired,

scattered brick shrapnel, and caused damage to the victim’s,

M’s, house and property. After defendant pleaded no con-

test to one count of second-degree criminal mischief, ORS

164.354,1 the trial court entered a judgment of conviction.

A restitution hearing was conducted after which the court

imposed restitution of approximately $7,600, including the

cost of painting the exterior of M’s house. Defendant appeals

from the resulting supplemental judgment and money

award, assigning error to that portion of the restitution

award attributable to the expense incurred by M to paint

the two sides of his house that were not directly damaged by

the explosion. We conclude that the trial court did not err.

We 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 if they are supported by any evidence

in the record. State v. Lobue, 304 Or App 13, 16, 466 P3d 83,

rev den, 367 Or 257 (2020). In the absence of “express find-

ings on a disputed fact, we assume that the court implicitly

found the facts consistent with the judgment entered,” id.,

and we review the evidence in the light most favorable to

the state, State v. Smith, 291 Or App 785, 788, 420 P3d 644

(2018). We state the pertinent facts accordingly.

M sought coverage from his homeowner’s insurance

company, Mutual of Enumclaw (Enumclaw), for the prop-

erty damage that was caused by the explosion and flying

shrapnel set into motion by defendant when he ignited the

firework mortar. A claims adjuster from Enumclaw testified

that after inspecting and documenting the damage, they

developed a cost estimate of the anticipated remedial work

using a software program, standard within the insurance

1

ORS 164.354 provides:

“(1) A person commits the crime of criminal mischief in the second

degree if:

“* * * * *

“(b) Having no right to do so nor reasonable ground to believe that the

person has such right, * * * the person recklessly damages property of another

in an amount exceeding $500.”

Cite as 330 Or App 672 (2024) 675

industry, called “Exact Analysis.” The line item for paint-

ing included only those exterior walls “that had sustained

damage.” Contractors were retained to repair the damage,

and Pierce Restoration (Pierce) was selected to serve as the

painting contractor. The adjuster testified that the work done,

including the painting, was necessary and reasonable and

that the amounts paid for that work were also reasonable.

M testified that he personally paid Pierce to paint

the undamaged sides of his house because the new paint

on the sides that had been damaged and repaired did not

match the older, faded paint on the remaining sides. M tes-

tified that the color of the fresh paint was close, but clearly

darker, than the existing paint. He testified further that he

liked to keep his “place looking pretty nice,” and that the

partially painted house looked as though it was not “ke[pt]

up.” He paid Pierce the amount it charged him because it is

a “reputable company” and because it charged him the same

amount that it charged Enumclaw for painting the first two

walls. The sentencing court included the painting cost that

M incurred in the restitution award, with this explanation:

“[M] described this as reasonable and necessary to match

up the paint so that it was similar quality and, and color

to what was on half of the house that the Defendant had

damaged.

“And that it was reasonable and necessary. There was

no testimony to the contrary from anyone else and no cross-

examination about whether it was reasonable and neces-

sary. And, and so I’m going to allow that. And that amount,

as I understand it, is $3,693.30. And so that will be the

order of the Court. Thank you.”

The propriety of including that cost in the restitution award

is the sole issue before us now.

ORS 137.106 (2021)2 requires a trial court to order

restitution “[w]hen a person is convicted of a crime * * * that

has resulted in economic damages.” ORS 137.103(2) defines

“economic damages” by incorporating most of the definition

given to that term by ORS 31.705(2)(a) for civil matters. As

explained in State v. Herfurth, 283 Or App 149, 153-54, 388

2

ORS 137.106 was amended in 2022. Or Laws 2022, ch 57, § 1. Those amend-

ments are now in effect, but they are not relevant to this case.

676 State v. Page

P3d 1104 (2016), rev den, 361 Or 350 (2017), economic dam-

ages are the “objectively verifiable monetary losses” that

would be recoverable “against the defendant in a civil action

arising out of the defendant’s criminal activities.” (Internal

quotation marks and footnote omitted.) When restitution is

imposed as a sanction in a criminal sentence, it is “informed

by principles enunciated in civil cases concerning recover-

able economic damages.” State v. Islam, 359 Or 796, 800,

377 P3d 533 (2016). There are three prerequisites for the

imposition of restitution as part of a defendant’s criminal

sentence: (1) criminal activities, (2) economic damages, and

(3) a causal relationship between the criminal activity and

the economic damages. State v. Kirkland, 268 Or App 420,

424, 342 P3d 163 (2015). The state bears the burden of

proving the factual prerequisites necessary to support an

award of restitution and that the award is reasonable. ORS

137.106(1)(a); State v. Aguirre-Rodriguez, 367 Or 614, 620,

482 P3d 62 (2021).

Defendant argues first that the state did not meet

its burden to establish that the cost of painting the undam-

aged sides of M’s house could “be attributed to his criminal

activities.” He emphasizes that his “criminal activities were

not a ‘but for’ cause of M’s additional painting cost loss,”

and he points instead to Pierce, claiming that M’s loss was

caused by Pierce’s “negligence in failing to match the paint

color.” But defendant’s view of the necessary causal link is

too narrow.

The “but for” test is often used in civil cases to

determine “whether a defendant’s negligence is one of many

potential causes of a plaintiff’s harm.” Haas v. Estate of

Mark Steven Carter, 370 Or 742, 749, 525 P3d 451 (2023)

(emphasis in original). The test does not, however, reduce

causation to a single cause. It asks whether the harm would

have occurred “but for”—or, in the absence of—”the defen-

dant’s negligence.” Id. Moreover, the “but for” test is not the

only test used to measure factual causation in civil cases.

See, e.g., Lasley v. Combined Transport, Inc., 351 Or 1, 7-8,

261 P3d 1215 (2011) (discussing cause in fact and the “sub-

stantial factor” test). The Supreme Court has not expressed

an opinion on the question of “whether the factual causation

Cite as 330 Or App 672 (2024) 677

required by ORS 137.106 is limited to ‘but-for’ causation.”

State v. Ramos, 358 Or 581, 586 n 3, 368 P3d 446 (2016).

The evidence here, when viewed in the light most

favorable to the state, is that defendant set off a large fire-

work mortar that misfired, scattered brick shrapnel, and

damaged M’s nearby house. The damage and associated

repairs were sufficiently extensive to necessitate repainting

the damaged exterior walls entirely. Not surprisingly, the

fresh paint on the repaired walls did not match the exist-

ing paint on the undamaged walls, and the difference was

noticeable. The required causal link between defendant’s

criminal conduct and M’s expense in painting the undam-

aged walls is inferable from the sentencing court’s finding

that M painted those walls “to match up the paint so that

it was similar [in] quality and * * * color to what was on”

the damaged and repainted walls. In other words, the court

found that M would not have incurred the expense of paint-

ing those two walls in the absence of defendant’s criminal

conduct. The record supports that finding.

Defendant next argues that even if the state estab-

lished the necessary causal link, “it was not reasonably fore-

seeable that defendant’s firework mishap would cause the

painting company to fail to match paint colors, thus result-

ing in M’s wish to have the undamaged sides of his house

repainted.” That argument goes to whether the cost of paint-

ing the undamaged walls is “the kind[ ] of harm for which

a defendant may be held liable.” Ramos, 358 Or at 595. We

answer that question by applying “reasonable foreseeabil-

ity” as a “limiting concept” under ORS 137.106. Ramos, 358

Or at 596.

The question is “whether a reasonable person in [ ]

defendant’s position would have foreseen that someone in

[M’s] position could reasonably incur damages of the same

general kind that [M] incurred[,]” as a result of defendant’s

criminal conduct. Id. at 597. We infer from the court’s find-

ings and the supplemental judgment that it found that the

act of igniting the mortar had the effect of damaging M’s

house; that the damage led to repairs and repainting; that

the house ended up with fresh paint on two sides and older

paint on the other two sides—which predictably made the

678 State v. Page

sides appear mismatched; and, finally, that the mismatched

appearance of the house reasonably led to M’s decision to

repaint the undamaged walls to restore the house to its uni-

form and tidy look.

The relationship running between each step was

reasonably foreseeable. See State v. Buswell, 308 Or App

389, 394-95, 479 P3d 341 (2021) (concluding that “ ‘it is a rea-

sonably foreseeable consequence of the robbery that [the vic-

tim] would use sick leave immediately following the robbery

to recover from its trauma’ ”); State v. Venable, 316 Or App

235, 240, 502 P3d 250 (2021), rev den, 369 Or 338 (2022)

(concluding that where the defendant stole victim’s cell

phone, restitution award could include expenses incurred by

victim because he was deprived of the ability to use that

phone to perform his job). The record supports that someone

in defendant’s position would reasonably have foreseen that

igniting a large firework mortar might result in damage to

surrounding buildings, requiring significant repairs and

paint costs, including those incurred by M in this case. The

expense incurred to paint the undamaged walls qualifies

as economic damages and the trial court did not err when it

included that cost in restitution.

As to the appropriate measure of damages, we apply

yet another civil law principle because the property that

defendant damaged was real property.3 In civil cases involv-

ing temporary damage to real property, where the damage

is “reasonably susceptible to repair,” the appropriate mea-

sure of damages is “the cost of restoring the property to

its original condition[.]” McCormick v. City of Portland, 191

Or App 383, 390-91, 82 P3d 1043, rev den, 337 Or 616 (2004)

(internal quotation marks omitted). That same measure

of damages for restitution applies here. See State v. Boyar,

328 Or App 678, 681, 538 P3d 1225, rev den, 371 Or 771

(2023) (applying same measure of damages for restitution

where the defendant’s criminal conduct caused damage to

transit station door). Defendant set a string of predictable

events into motion when he committed the crime of criminal

3

See, e.g., ORS 307.010(1)(b), which defines real property for state property

tax laws to include, among other things, “(B) All buildings, structures, improve-

ments, machinery, equipment or fixtures erected upon, above or affixed to the

land[.]”

Cite as 330 Or App 672 (2024) 679

mischief in the second degree. M’s house appeared uniform

in color before defendant acted. Its appearance was not uni-

form in color after defendant acted. The measure of damages

thus reasonably included the cost of painting the undam-

aged walls because that was necessary to restore the house

to its original condition. The cost that M incurred to paint

the undamaged walls was the same as the cost Enumclaw

incurred to paint the other two exterior walls which, accord-

ing to the claims adjuster’s testimony, was reasonable.

Affirmed.