No. 462 July 3, 2024 581

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SUMMER CHARLAYNE WILSON,

Defendant-Appellant.

Linn County Circuit Court

21CR07615; A179719

Michael B. Wynhausen, Judge.

Submitted April 29, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Marc D. Brown, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Adam Holbrook, Assistant Attorney 

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

MOONEY, J.

Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
582 State v. Wilson

MOONEY, J.

Defendant pleaded no contest to possessing a stolen 2005 Changzhou trailer and was convicted of possession 

of a stolen vehicle (PSV) under ORS 819.300. She appeals 

the supplemental judgment, assigning error to the trial 

court’s imposition of restitution in the amount of $10,527.58 

for economic damages that defendant argues she did not 

cause. We review the trial court’s imposition of restitution 

for legal error, bound by that court’s factual findings that 

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). 

We conclude that the record is not sufficient to support the 

restitution award. We reverse and remand for entry of an 

amended supplemental judgment that does not include 

restitution.

Defendant loaned her truck to her friend, Tate, on 

December 24, 2020. Tate returned the truck to defendant 

the next day, December 25, 2020, with a trailer attached 

to it. The trailer was “open,” and there were three safes on 

it. Tate told defendant that the trailer was stolen and that 

“they needed to get rid of it right away.” Defendant got into 

the passenger seat of her truck and rode along as another 

friend, Smith, drove to a place where they stopped. Smith 

got out of the truck and “unhooked the trailer.” Tate and 

another man drove along to the disposal site in a separate 

vehicle. Defendant testified that she did not get out of the 

truck and that she did not notice that there were safes on 

the trailer, but the trial court found her testimony “somewhat incredible,” noting that it was an open trailer.

The trailer and the safes had been stolen on 

December 24, 2020, during a burglary in which defendant 

did not participate. The people from whom the safes and 

trailer had been stolen kept items of value in the safes, 

including coins. The items of value had been removed from 

the safes by the time the trailer was located on December 25.

The safes had been pried open, and packaging from the stolen coins remained inside the safes. Whether the coins had 

been removed from the safes before or after defendant rode 

along to dispose of the trailer is not clear.
Cite as 333 Or App 581 (2024) 583

ORS 137.106 requires a trial court to order restitution “[w]hen a person is convicted of a crime *** that has 

resulted in economic damages[.]”1 However, a “[d]efendant 

cannot be required to pay restitution for [economic] damages arising out of criminal activity for which he was not 

convicted or which he did not admit having committed.” 

State v. Seggerman, 167 Or App 140, 145, 3 P3d 168 (2000) 

(holding that the court could not order restitution for stolen merchandise based on defendant’s plea of guilty to the 

crime of conspiracy to commit theft because he was not convicted of theft and did not admit to committing theft). It is 

nevertheless clear that “the damages need not be the direct

result of defendant’s criminal activity” to support restitution. State v. Pumphrey, 266 Or App 729, 734, 338 P3d 819 

(2014), rev den, 357 Or 112 (2015) (emphasis in original). As 

we recently explained:

“When restitution is imposed as a sanction in a criminal 

sentence, it is ‘informed by principles enunciated in civil 

cases concerning recoverable 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. AguirreRodriguez, 367 Or 614, 620, 482 P3d 62 (2021).”

State v. Page, 330 Or App 672, 676, 544 P3d 421 (2024).

Defendant disputes causation. She argues that her 

criminal conduct was not a but-for cause of the economic 

loss sustained by the persons from whom the safes were 

stolen because the theft of that property occurred before 

she committed the crime for which she was convicted—

possessing the stolen trailer. She was neither charged with 

nor convicted of burglary. And although she was charged 

with second-degree theft, that charge was for theft of the 

1 ORS 137.106 was amended in 2022, after the events relevant to this appeal 

occurred. Or Laws 2022, ch 57, § 1. We nevertheless cite to the current version of 

the statute because the 2022 amendments do not affect our analysis.
584 State v. Wilson

trailer only and it was dismissed. The state argues that 

defendant’s criminal conduct was a but-for cause of the victims’ loss because there was evidence “sufficient to establish 

that [her] possession of the stolen trailer, while helping to 

dispose of it, facilitated the damage to the safes and theft 

of the safes’ contents.” Although but-for causation is not as 

narrow as defendant argues, it is also not as broad as the 

state suggests.

But-for causation is a test often used in civil cases 

to determine whether the defendant’s negligence was, in 

fact, a cause of the plaintiff’s damages. Haas v. Estate of 

Mark Steven Carter, 370 Or 742, 748-49, 525 P3d 451 (2023). 

The but-for test does not look for a “single cause,” Page, 330 

Or App at 676, and it is not the only test used to measure 

cause-in-fact 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 “substantial factor” test). 

Nevertheless, it is clear that a defendant’s criminal conduct 

must, at a minimum, be a cause of the victim’s economic loss 

before restitution may be imposed as part of the sentence for 

that criminal conduct.

We have upheld restitution awards in cases where 

the defendant’s criminal conduct preceded, but nevertheless facilitated, the economic loss. For example, in State v. 

Stephens, 183 Or App 392, 52 P3d 1086 (2002), we affirmed 

a restitution award against the defendant for economic loss 

associated with tires and wheels that were stolen by someone else from the vehicle after he stole it and left it unattended. We concluded that in the absence of the defendant’s 

criminal conduct, the tires and wheels would not likely have 

been stolen. Id. at 397. We likewise upheld the restitution 

award in State v. Doty, 60 Or App 297, 653 P2d 276 (1982), 

explaining that the defendant was responsible for restitution for “the loss resulting from the purported second burglary facilitated by [the defendant’s] own negligent conduct 

in leaving the victim’s premises unprotected after his own 

criminal conduct ended.” Id. at 300; see also State v. A. E. A., 

332 Or App 584, 587, 549 P3d 590 (2024) (upholding restitution in a juvenile delinquency case for costs incurred to 

repair a damaged vehicle where the youth stole his parents’ 
Cite as 333 Or App 581 (2024) 585

car which was later damaged when his co-offender recklessly drove the vehicle); State v. Spontini, 318 Or App 215, 

218, 506 P3d 1196, rev den, 370 Or 198 (2022) (upholding 

restitution for damage to a motorhome that arose out of 

defendant’s criminal activity of stealing the motorhome).

Relying on Stephens, Doty, and Spontini, the trial 

court explained its view that “the policy behind the restitution scheme in Oregon is if there is some connection then all 

parties who are liable should be responsible for the restitution. ** * [I]t seems to the court that the policy is to favor the 

interests of victims of crime when there is some connection” 

between the crime and the victim’s economic damages. But 

the existence of “some connection” is not the standard by 

which causation is measured for purposes of imposing restitution as part of a criminal sentence.

For example, we reversed a restitution award in 

State v. Mothershed, 323 Or App 16, 522 P3d 921 (2022), 

where the defendant purchased a stolen motorcycle, the 

only evidence was that the ignition was already damaged 

when he purchased it, and it would have required impermissible speculation to find that defendant caused any additional damage. Id. at 23. Here, defendant occupies a position 

in the “post-theft chain of possession” like the defendant 

in Mothershed. And although the trial court did not credit 

defendant’s testimony that she was not aware that there 

were safes on the stolen trailer when she rode along with 

Smith to “get rid of” the trailer, she was not charged with 

or convicted of burglary and she was not charged with or 

convicted of theft of the safes or the content of the safes.2

We defer to the trial court’s assessment of defendant’s credibility and accept as true that defendant helped 

to get rid of the trailer and the safes when she knew that 

they were stolen. But the trial court did not find that defendant participated in damaging the safes or was aware 

that the safes had been damaged or that the items inside 

2 The amount of the restitution award was established based upon a stipulated list that is not in the record on appeal. As best we can tell from the limited 

testimony and arguments at the restitution hearing, the list included values for 

“items included in the safes that were not recovered[.]” We do not know what the 

listed amounts were and we cannot tell whether the list also included amounts 

for damage to the safes.
586 State v. Wilson

the safes were stolen. We reject the state’s argument that

“[t]he fact that three men were needed to drop off a trailer—a 

simple task—is evidence that the additional men joined for a 

more physical task: breaking into the safes and stealing the 

safes’ contents.” That other individuals followed Smith and 

defendant to the place where they dumped the trailer—even 

when considered along with the presence of packaging when 

the trailer was located by law enforcement—would not permit such a finding without speculation.

The presence of three men at the site where they 

planned to get rid of the stolen trailer and safes might have 

been for any number of reasons—perhaps simply to ensure 

the disposal of those items in a place unlikely to be immediately discovered. The state reaches a different conclusion—

that the three men went to the disposal site in order to break 

into the safes. But that conclusion requires the stacking of 

inferences to the point of guesswork. See State v. Bivins, 

191 Or App 460, 468, 83 P3d 379 (2004) (evidence is legally 

insufficient to support an inference when it “requires the 

stacking of inferences to the point of speculation”). Given 

the lack of evidence about the timing of when the safes were 

damaged and when the coins were actually stolen, and the 

lack of evidence connecting the theft of the coins to the 

crime for which defendant was convicted, we cannot say 

that but-for defendant’s criminal conduct—possessing the 

stolen trailer—the safes would not have been damaged and 

the coins would not have been stolen.3

The trial court erred in ordering defendant to pay 

restitution in the amount of $10,527.58. We therefore reverse 

the restitution award and remand for entry of an amended 

supplemental judgment that does not include restitution.

Supplemental judgment reversed; remanded for 

resentencing; otherwise affirmed.

3 Section 876 of the Restatement (Second) of Torts (1979), does not support 

the state’s position that restitution properly includes the value of the content of 

the safes. Because the coins may have been stolen before defendant came into 

possession of the stolen trailer, the evidence does not establish that defendant 

“acted in concert with and provided substantial assistance in accomplishing 

Tate’s own tortious conduct by helping Tate dispose of and thereby conceal the 

stolen property.”