No. 5 February 19, 2016 605

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

KADE WILLIAM KIRSCHNER,

Petitioner on Review.

(CC F19697; CA A154602; SC S063069)

On review from the Court of Appeals.*

Argued and submitted September 15, 2015.

Morgen E. Daniels, Deputy Public Defender, Salem, 

argued the cause and filed the brief for petitioner on review. 

With her on the brief was Ernest G. Lannet, Chief Defender, 

Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

With him on the brief were Ellen F. Rosenblum, Attorney 

General, and Paul L. Smith, Deputy Solicitor General.

Amy C. Liu, Portland, filed the brief for amicus curiae the 

National Crime Victim Law Institute. With her on the brief 

was Margaret Garvin.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

WALTERS, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

** Appeal from Union County Circuit Court, Brian C. Dretke, Judge. 268 Or 

App 716, 342 P3d 1026.

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
606 State v. Kirschner

Case Summary: Defendant was convicted of several crimes related to breaking into the victim’s home and was ordered to pay restitution. Included in the 

restitution were lost wages for two days of work that the victim missed because 

he had been subpoenaed to appear in the criminal proceeding. Defendant argued 

that the lost wages did not qualify as “economic damages” under ORS 137.106 

and because they were barred by the American Rule, which generally precludes a 

party in a civil case from recovering costs and attorney fees incurred in that case. 

Held: If the American Rule were to apply by analogy to restitution, it would not 

preclude a trial court from awarding costs that a victim incurred because he was 

subpoenaed to appear for trial and for the restitution hearing.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
Cite as 358 Or 605 (2016) 607

WALTERS, J.

Defendant challenges the imposition of restitution, 

under ORS 137.106,1

 for wages that the victim lost when 

the victim was subpoenaed to testify at defendant’s criminal trial and restitution hearing. In a per curiam decision, 

the Court of Appeals affirmed the restitution award, citing 

State v. Ramos, 267 Or App 164, 340 P3d 703 (2014). State v. 

Kirschner, 268 Or App 716, 342 P3d 1026 (2015). We allowed 

review of both Ramos and the present case, and we now 

affirm the decision of Court of Appeals and the judgment of 

the circuit court.

The pertinent facts are not in dispute. Defendant 

and his co-defendant broke into the victim’s home and, after 

the victim confronted them, they fled. Defendant was apprehended shortly thereafter, and the police found defendant 

in possession of drugs and a concealed weapon. Defendant 

was charged with various crimes, including burglary, trespass, criminal mischief and carrying a concealed weapon, 

as well as several drug offenses. The victim was subpoenaed for trial, but, shortly before the trial was scheduled to 

occur, defendant entered into a plea agreement under which 

he pleaded guilty to two drug possession charges and the 

charge of carrying a concealed weapon; the state dismissed 

the other charges. Defendant also agreed to pay the victim 

restitution in an amount to be determined by the court.

The state sought an award of restitution for expenses 

that the victim had incurred to make home repairs necessitated by defendant’s crime and for wages that he had lost in 

order to make those repairs. The state also sought an award 

of restitution for two additional categories of lost wages. 

The victim incurred those categories of lost wages when, in 

1 ORS 137.106(1)(a) provides:

“When a person is convicted of a crime * ** that has resulted in economic 

damages, the district attorney shall investigate and present to the court, at 

the time of sentencing or within 90 days after entry of the judgment, evidence 

of the nature and amount of the damages. *** If the court finds from the 

evidence presented that a victim suffered economic damages, in addition to 

any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a 

specific amount that equals the full amount of the victim’s economic damages 

as determined by the court.”
608 State v. Kirschner

response to the state’s subpoena, he took time off work to 

attend defendant’s criminal trial and the later restitution 

hearing.2

 At the restitution hearing, defendant agreed to 

pay restitution for the victim’s home repair costs and the 

wages he lost in making those repairs, but challenged the 

court’s ability to impose restitution for the additional categories of lost wages. Those challenged categories—the wages 

that the victim had lost because he took time off to attend 

defendant’s criminal trial and the wages that the victim 

had lost because he took time to attend the restitution hearing—totaled approximately $900. Counsel for co-defendant 

argued that those lost wages were not recoverable because 

subpoenaed witnesses are entitled to a witness fee and mileage from the state.

Defendant made a similar argument in the Court of 

Appeals, arguing that the victim’s lost wages to attend the 

criminal trial and restitution hearing were “costs” of the 

prosecution and therefore could not qualify as “economic 

damages” under ORS 137.106 and ORS 31.710. As noted, the 

Court of Appeals affirmed based on Ramos, and defendant 

petitioned for review, which we allowed.

The arguments that defendant advances in this court 

are similar to those that we considered in Ramos, decided 

this date. State v. Ramos, 358 Or 581, ___ P3d ___ (2016).3

First, as did the defendant in Ramos, the defendant in this 

case argues that to be recoverable as restitution, a victim’s 

economic damages must be reasonably foreseeable. For the 

reasons given in Ramos, we agree. Id. at 596-97.

Second, defendant argues, citing ORCP 68, that in 

civil actions, “costs and expenses” of litigation are recoverable, if at all, under that provision, and are not considered 

“economic damages.” Defendant asserts that because, under 

2 The victim indicated at the restitution hearing that both the prosecution 

and the defense had subpoenaed him. 

3 In his brief in this court, defendant also advances an alternative argument, 

styled as an “intervening cause” or “superseding cause” argument, suggesting 

that the victim incurred lost wages on one of the dates he was subpoenaed to testify due to the prosecutor’s negligence in failing to withdraw the subpoena after 

defendant pleaded guilty. That argument was not preserved and, during oral 

argument in this court, defense counsel also acknowledged that the record may 

not support that assertion. We do not address defendant’s alternative argument.
Cite as 358 Or 605 (2016) 609

the American Rule, a party to a civil action may not recover 

the costs incurred in that action as damages, a victim in 

a criminal proceeding also may not be awarded such costs 

as restitution. See Ramos, 358 Or at 599 (describing Ramos 

defendant’s similar argument).

Although defendant is correct in his description of 

ORCP 68 and the American Rule, those rules do not preclude a party from recovering litigation costs incurred in 

a separate proceeding as “economic damages.” Ramos, 358 

Or at 602. As we explained in Ramos, restitution is a criminal sanction, and, even if we were to apply the American 

Rule by analogy, that rule would not preclude a trial court 

from awarding litigation costs that a victim incurred in the 

underlying criminal prosecution as “economic damages” in 

a restitution proceeding. Id. at 602-03.

In this case, our reasoning in Ramos fully addresses 

one category of the challenged lost wages; that is, the wages 

that the victim lost when subpoenaed to appear at defendant’s criminal trial. For the reasons stated in Ramos, the 

trial court did not commit legal error in awarding those lost 

wages.

Our reasoning in Ramos does not, however, address 

the other category of challenged lost wages: the wages that 

the victim lost when he was subpoenaed to testify at the 

restitution hearing. In Ramos, we reserved the question 

whether the American Rule precludes such an award, see

id. at 603 (reserving question), but that question is at issue 

here.

In considering defendant’s argument that we apply 

the American Rule to this second category of lost wages, 

we think it significant that the victim was subpoenaed to 

testify as a witness for the state. The victim lost wages 

because he was required to respond to that subpoena, not 

because he made an independent decision to attend the 

hearing to protect his interests. In that circumstance, the 

rationale that underlies the American Rule does not apply, 

and we will not rely on that rule to preclude an award of 

restitution. Although the victim may not have been able to 

recover such wages if he had brought a tort action against 

the defendant and testified in the trial of that action, the 
610 State v. Kirschner

victim was serving a different role when he was subpoenaed 

to attend the restitution hearing. The victim was required 

by the subpoena issued by the state to attend the restitution 

hearing as a witness. If we were to apply the American Rule 

by analogy in that circumstance, we would fail to recognize 

that restitution is a criminal sanction that is sought by the 

state, not by the victim. See ORS 137.106(1)(a) (“the District 

Attorney shall investigate and present to the court * ** evidence of the nature and amount of the damages”).

It is important to remember, however, that even in 

the circumstance in which a victim’s costs are incurred in 

the underlying criminal prosecution or in the victim’s role as 

subpoenaed witness in the restitution hearing, a court may 

not award a victim’s costs as “economic damages” unless 

the state also establishes that those costs “resulted from” a 

defendant’s criminal activity and were reasonably foreseeable. In this case, defendant did not preserve an argument 

that the state failed to prove those facts, and we conclude 

that the trial court did not err in awarding the victim’s 

wages as restitution under ORS 137.106.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.