STATE v. FUENTEZ TREJO (2026)

Defendant pleaded guilty to, and was convicted of, failure to perform the duties of a driver when property is damaged, ORS 811.700(1), which arose from a collision between defendant's vehicle and V's vehicle. Defendant argues, in his sole assignment of error, that the court erred in requiring him to pay $3,370.23 in restitution to V because the state failed to present sufficient evidence that defendant caused the collision. The state responds that defendant did not preserve his argument on appeal, and even if he did, the record is sufficient to support a finding that defendant caused the collision. The state argues in the alternative that, even if we conclude that the evidence is insufficient to establish that defendant caused the collision, the record supports the imposition of the lost wages portion of the restitution award under the general restitution statute, ORS 137.106. We conclude that defendant's argument is preserved and that the state presented insufficient evidence to support a finding that V's damages were “caused by [defendant] as a result of the incident that created the duties in ORS 811.700,” as required by ORS 811.706, the restitution statute particular to a conviction under ORS 811.700. Our cases explain that ORS 811.706, not ORS 137.106, governs restitution imposed on a conviction for violating ORS 811.700. The state has not developed an argument that this case is distinguishable from those cases. We thus reverse the entire restitution award.

STATEMENT OF FACTS

“We review restitution orders for legal error and are bound by the sentencing court's factual findings so long as they are supported by any evidence in the record.” State v. Torres, 347 Or App 48, 50, 586 P3d 484 (2026). We state the facts consistent with that standard.

On February 10, 2022, there was a vehicle collision that involved defendant and V, each driving their respective vehicles. Defendant left the scene of the collision. V sustained damage to his vehicle and subsequently obtained an estimate of $2,690.23 for the repair cost. V is an independent contractor with an hourly rate of $85.00. He reported missing eight hours of work interacting with the police after the collision and appearing in court, amounting to $680.00 in lost wages.

The state charged defendant with failure to perform the duties of a driver when property is damaged, ORS 811.700(1). Defendant pleaded guilty to that offense, admitting that, “on or about February 10th, 2022, being the driver of a vehicle, being operated on a public highway or premises open to the public and knowing or having reason to believe that the vehicle was involved in a collision, [he] did fail to stop and reasonably investigate.” The parties left sentencing and restitution open as part of the plea agreement, and the trial court proceeded immediately to the sentencing and restitution hearing.

At the hearing, the state called one witness, V, who testified through an interpreter. The state asked V if his vehicle “sustain[ed] any damage from this incident?” V confirmed that his vehicle had been damaged. V also testified that he had lost wages by “doing investigation and report[ing]” and by appearing at the restitution hearing itself.

The state argued that it “established that the victim in this case, [V], suffered economic damages.” In response, defendant argued that the court could not impose restitution because defendant had not pleaded guilty to causing the collision or admitted to causing the collision, citing case law interpreting the general restitution statute, ORS 137.106. The trial court asked defendant about State v. Hval, 174 Or App 164, 25 P3d 958, rev. den., 332 Or 559 (2001), which discusses ORS 811.706, a restitution statute specifically applicable to cases of hit and run. Defendant responded that he had “briefly reviewed the case” but had not “digest[ed] it.” Defendant went on to argue that the trial court could not determine at the restitution hearing whether defendant was at fault for the accident or caused V's damages “with the evidence we have on the record.” The state reiterated that it had met its burden under ORS 137.106(1) because defendant had “pled guilty to the crime of failing to perform [the] duties of [a] driver to [V], that resulted in economic damages, [of] which you heard testimony from [V].”

The court took a brief recess to review case law. When it reconvened, the court reopened the evidence and allowed the state to recall V as a witness, over defendant's objection. The state asked V, “Just to clarify, was your vehicle damaged as a result of [defendant]’s conduct that day on * * * February 10th, 2022?” Before V answered, defendant objected, and the court overruled defendant's objection. The following exchange occurred:

“[V]: (Through interpreter) What I answer? What should I say?

“THE INTERPRETER: He's not sure. Day?

“[PROSECUTOR]: Oh, I'm sorry. Oh, I'm sorry. The day of this incident was your vehicle damaged?

“[V]: (Through interpreter) Yes.”

The parties then presented additional arguments. The state once again argued that defendant “has pled guilty in this case to failing to perform duties of driver to [V]. The damage was caused directly to [V].” Defendant argued that he

“did not plead to causing any damage to the vehicle. He pled to being involved in a collision, but we have no evidence as to who caused that collision. * * * We just have no indication of how this accident occurred, what the damages are, how they're attributable to [defendant]. All we know is that he left the scene.”

The court asked the parties which restitution statute applied. Defendant responded that ORS 137.106 applied. The trial court then imposed restitution, citing Hval and explaining,

“With respect to causation, the named victim in his first testimony testified that this accident caused the damage to his vehicle, so there is evidence on the record, and there was even before he retook the stand, that this incident caused the damage. I found both witnesses to be credible, just for credibility purposes.[1]

“I find that the damages to the automobile are sufficiently established. There's sufficient reliability with respect to the reasonableness of those and that they were caused by the accident, as is true of the wages sought. So I am going to award the full amount.”

ANALYSIS

On appeal, defendant argues that the state failed to prove that defendant caused the collision and thus the trial court could not impose restitution under ORS 811.706. The state first argues that defendant failed to preserve that argument given that his arguments below were premised upon ORS 137.106. We conclude that defendant preserved this issue for appeal.

“[P]reservation requires a party to explain its objection clearly enough for the opposing party, and the trial court, to understand the issue and either avoid an error, or correct an error if one has occurred.” State v. Skotland, 372 Or 319, 327, 549 P3d 534 (2024). One touchstone is whether the trial court would be surprised to be reversed by an appellate court “on this issue, for this reason[.]” Id. at 329 (emphasis omitted).

Here, the trial court would not be surprised that defendant challenges the restitution award based on the argument that the state presented insufficient evidence to establish that defendant caused the collision with V's vehicle. Defendant repeatedly argued that the state failed to meet its burden to establish causation and that, in turn, the trial court could not award restitution to V. Although defendant cited ORS 137.106 instead of ORS 811.706, defendant's mistake did not mislead the trial court. The trial court correctly identified the ORS 811.706 standard explained in Hval. After correctly identifying Hval, the court recessed and, upon retaking the bench, provided the state with another opportunity to present evidence to establish causation. The trial court and the state understood the issue now raised on appeal and had an opportunity to avoid the error. Accordingly, the issue is adequately preserved for our review. We thus turn to the merits.

A person may be convicted under ORS 811.700 when they are the driver of a vehicle involved in a collision, that collision “results in damage to property,” and the driver leaves the scene without providing information and assistance as specified in the statute. This offense is known colloquially as a “hit and run.”

Oregon's general restitution statute, ORS 137.106, only authorizes a court to impose restitution “for pecuniary damages that result from a person's criminal activities,” and in “a ‘hit and run’ case, the criminal activity is leaving the scene without providing information or assistance[.]” Hval, 174 Or App at 176 (internal quotation marks omitted). Because the criminal activity contemplated in ORS 811.700 occurs after the incident that caused property damage, that damage is not a result of the criminal activity, and the requirements for restitution under ORS 137.106 cannot be met. The legislature thus enacted ORS 811.706 to authorize the imposition of restitution when a person convicted of ORS 811.700 “caused the accident that gave rise to the duties that the defendant failed to perform.” Id. (Internal quotation marks omitted.) When a defendant is convicted of ORS 811.700, “the provisions of ORS 137.106 do not apply; rather, ORS 811.706 ‘governs the trial court's authority to order restitution.’ ” State v. Marshall-Lautt, 344 Or App 716, 718, 581 P3d 993 (2025) (quoting State v. Moore, 243 Or App 199, 201, 258 P3d 1249 (2011)).

In this case, defendant pleaded guilty to failure to perform the duties of a driver when property is damaged under ORS 811.700(1). Defendant did not agree to restitution as part of the plea agreement or in the plea petition. As a result, the court's authority to impose restitution derived from ORS 811.706. Marshall-Lautt, 344 Or App at 718. Accordingly, the state had the burden of establishing the “amount of any damages caused by [defendant] as a result of the incident that created the duties in ORS 811.700.” ORS 811.706. Simply demonstrating that the collision caused damage to V's vehicle, without regard to who caused the collision in the first place, would be insufficient, as the parties recognize.

Here, the state did not meet its burden. Defendant's guilty plea did not permit the trial court to find that he caused the collision, as the parties and the trial court recognized, because defendant only pleaded guilty to being “involved” in a collision and to leaving the scene of that collision. Without more, that violation of ORS 811.700 does not establish that defendant caused the damage to V's vehicle. See Hval, 174 Or App at 176 (explaining that ORS 811.706 “does not authorize an award whenever a defendant is convicted of ‘hit and run’ ” (emphasis in original)).

The evidence presented at the sentencing and restitution hearing also falls short. The state asked only one question of its sole witness, V, related to the underlying cause of the collision. However, defendant objected before V could answer, and, although the court overruled this objection, the state abandoned its original question. Instead, the state simply asked, “The day of this incident was your vehicle damaged?” The state elicited no testimony as to the cause of the collision. As such, V's testimony does not provide evidence from which the trial court could find that defendant caused the collision.

The state argues that the exchange is ambiguous. In the state's view, the trial court could have understood V's response to be answering “yes” to the state's original question—the question before the defense objection—with the issue of the date clarified. But the exchange is not ambiguous. V asked for clarification of the question through the interpreter, and the state then only asked whether V's vehicle was damaged on the day of the collision. V was not asked about who caused the collision, and V's testimony cannot reasonably be understood as stating that defendant caused the collision.

The state argues that even if V's testimony was insufficient, the record contains an affidavit from the investigating officer in support of an arrest warrant for defendant that the state filed with the accusatory instrument. As the state acknowledges, the state and the trial court did not rely on the affidavit at the restitution hearing. We are unaware of any authority that permits the state to meet its burden to establish restitution through a probable-cause affidavit filed at the initiation of the case and upon which the trial court did not rely at the restitution hearing, and the state has not pointed us to any. Accordingly, the affidavit cannot provide the basis for the trial court's restitution order.²

In sum, the state failed to show that the damages to V's vehicle were “caused by [defendant] as a result of the incident that created the duties in ORS 811.700.” ORS 811.706. Accordingly, the trial court erred when it ordered defendant to pay restitution for the damage to V's vehicle.

The state argues that even if we conclude that the trial court erred in awarding restitution to V for the damage to his vehicle, we should affirm the award of $680 in lost wages to V because defendant does not specifically challenge that award and “restitution for the lost income was properly awarded under ORS 137.106.” We disagree. On appeal, defendant asks us to reverse the entire restitution award because the state failed to prove that he caused the collision under ORS 811.706. The state does not cite any authority or develop an argument in support of its assertion that ORS 137.106 governs restitution for lost wages caused by a defendant's failure to perform the duties of a driver when property is damaged. But we have previously explained, “when a defendant is convicted under ORS 811.700 or ORS 811.705, the provisions of ORS 137.106 do not apply; rather ORS 811.706 ‘governs the trial court's authority to order restitution.’ ” Marshall-Lautt, 344 Or App at 718 (quoting Moore, 243 Or App at 201-02). The state does not explain how its assertion that ORS 137.106 governs the restitution for lost wages is consistent with ORS 811.706 or our case law interpreting ORS 811.706. We thus follow Marshall-Laut and Moore and conclude that ORS 811.706 governs the entire restitution award in this case. Because the evidence was insufficient to permit the trial court to find that defendant caused “the incident that created the duties in ORS 811.700,” the trial court erred when it ordered defendant to pay $3,370.23 in restitution to V.

Portion of judgment imposing restitution reversed; otherwise affirmed.

FOOTNOTES

1.   Defendant was the other witness. He testified briefly about his financial circumstances.

2.   Even if we could consider the affidavit as evidence in support of the state's request for restitution, in the light most favorable to the state, the affidavit appears to establish only that defendant was guilty of violating ORS 811.700.

O'CONNOR, J.