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Oregon Supreme Ct - Nov 25, 2016

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by: Sara Werboff • November 25, 2016 • no comments

Restitution - Restitution Award Proper When Defendant's Crime Was the But-For Cause of Victim's Attorney Fees and Fees Were a Foreseeable Result

The court affirms the trial court's restitution award for attorney fees that the victim incurred. Defendant strangled the victim, his domestic partner. While defendant was in custody, he repeatedly violated a no-contact order by calling the victim. The victim retained a lawyer to help enforce the no-contact order and to obtain a restraining order. The trial court awarded restitution to the victim for the fees she paid her attorney for that task. While this case was being considered by the Oregon Supreme Court, the court decided State v. Ramos, 358 Or 581 (2016), in which it held that attorneys fees can be recovered as restitution if the crime is the "but-for" cause of the expense, and if the attorney fees are the reasonably foreseeable result of the crime. Here, defendant conceded that his crime was the but-for cause of the fees and the fees were reasonably foreseeable, however, he argued that the court should apply a different test: either a "sole cause" test (the crime must sufficient in itself to cause the expense) or the "substantial factor" test (that the crime must be a relatively more significant component in the chain of events leading to the expense).

The court rejects defendant's proposed tests, finding them inconsistent with Ramos. In light of defendant's concessions, the trial court's restitution award was proper.

State v. Gerhardt, 360 Or 629 (2016) (Landau, J.)