FILED: August 28, 2002

STATE OF OREGON,

Respondent,

v.

CLYDE STEPHENS,

Appellant.

Appeal from Circuit Court, Multnomah County.

Jan G. Wyers, Judge.

Argued and submitted May 29, 2002.

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.

David F. Coursen, Assistant Attorney General, argued the cause for respondent.

With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Landau, Presiding Judge, and Deits, Chief Judge, and Brewer, Judge.

DEITS, C. J.

Affirmed.

DEITS, C. J.

A jury convicted defendant of unauthorized use of a vehicle, ORS 164.135(1), and possession of a stolen vehicle, ORS 819.300. The trial court ordered defendant to pay $4,000 in restitution for damage to the vehicle. Defendant seeks reversal of the award of restitution. We affirm.

In August 1997, defendant met a person named "Chuckie" at a mutual friend's house. According to the investigating officer, defendant told her that, because Chuckie needed money for drugs, defendant offered Chuckie $30 to rent his new BMW convertible for a few hours. Defendant used the car for a few hours, but, when he tried to return it, he was unable to find Chuckie at the friend's house. Defendant testified that he thought about calling Rasmussen Motors, because he suspected that the car had come from there. According to one of the investigating officers, defendant told her that he "'had an idea [the car] was hot.'" Instead of calling Rasmussen, however, he took the car to another location in what he believed to be a safer neighborhood, parked it in the yard of someone he knew, placed a cover over the car, and put the keys in the tailpipe.

Defendant testified that he left word at the mutual friend's house for Chuckie to call him. He did not hear from Chuckie. About three days later, defendant said that he "started feeling [that] something was kind of fishy about this" and went back to check on the car. He testified that the car was fine at that time. When the car eventually was found by the police in September, at the location where defendant had left it, the original tires and wheels were missing. Defendant denies that he took the tires or wheels. However, although defendant disputes this, one of the investigating officers said that defendant told her that he could get the tires and wheels back. Following defendant's conviction, the trial court ordered defendant to pay restitution of $4,000 for damage to the car.

On appeal, defendant assigns error to the trial court's imposition of restitution. Defendant contends that restitution was not properly imposed because the evidence did not establish the required causal connection between defendant's criminal activities and the pecuniary harm on which the restitution award was based.

ORS 137.106 (1995) (1) defined a court's authority to impose restitution at sentencing and provided, in part:

"When a person is convicted of criminal activities, * * * which have resulted in pecuniary damages, * * * [i]n addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim." (2)

"[T]here are three prerequisites to an order of restitution under ORS 137.106(1): (1) criminal activities, (2) pecuniary damages, and (3) a causal relationship between the two." State v. Edson, 329 Or 127, 132, 985 P2d 1253 (1999).

Here, defendant was convicted of criminal activities, and he does not dispute that the car was damaged when the wheels and tires were taken. Thus, the only issue on appeal is whether a causal connection exists between the criminal activities of which defendant was convicted and the damage for which he is being held responsible. Defendant points out that he was convicted only of unauthorized use of a vehicle, ORS 164.135(1), (3) and possession of a stolen vehicle, ORS 819.300. (4) Defendant asserts that he was not charged with the theft of the wheels and tires and that he did not admit to taking them. Accordingly, he reasons that there is no causal connection between his criminal activities and the loss of the wheels and tires, which occurred after defendant left the stolen car parked at his friend's house.

Defendant is correct that there must be a causal connection between the criminal activities and the pecuniary damages on which an award of restitution is based. We have not, however, required that the damage must always be the direct result of the defendant's criminal activity. For example, in State v. Doty, 60 Or App 297, 653 P2d 276 (1982), the defendant was originally indicted for a burglary in which the victim claimed the loss of guns, jewelry, and silver that had a value of more than $3,000. The defendant eventually pleaded guilty to the theft of guns and jewelry that had a value of less than $200. The trial court imposed $2,000 in restitution, based on the value of a number of stolen items that the defendant denied taking and that were not the basis of the defendant's conviction. It was the defendant's position that someone else must have taken the items in a later burglary.

We upheld the restitution award explaining:

"Defendant does not seriously dispute the loss of the missing items but denies having taken the jewelry himself. However, regardless of whether defendant actually stole the jewelry, the entire loss 'resulted' from his 'criminal activities,' including the admitted kicking in of the victim's door, because it at least created free access to the home for the hypothetical subsequent theft.

"Likewise, the loss of jewelry is an item of 'pecuniary damage,' because defendant could have been found liable in a civil action for the loss resulting from the purported second burglary facilitated by his own negligent conduct in leaving the victim's premises unprotected after his own criminal conduct had ended. Cf. Mezyk v. National Repossessions, Inc., 241 Or 333, 336-37, 405 P2d 840 (1965) (complaint alleging owner's negligence in leaving key in car's ignition facilitating theft held sufficient to withstand demurrer). As set out in Restatement (Second) Torts,