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 deci-
sion of this case.
606	                                                     State v. Kirschner

    Case Summary: Defendant was convicted of several crimes related to break-
ing 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 crimi-
nal 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 appre-
hended shortly thereafter, and the police found defendant
in possession of drugs and a concealed weapon. Defendant
was charged with various crimes, including burglary, tres-
pass, criminal mischief and carrying a concealed weapon,
as well as several drug offenses. The victim was subpoe-
naed 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 necessi-
tated 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 supple-
    mental 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 catego-
ries 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 hear-
ing—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 mile-
age 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 recover-
able, 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 tes-
tify 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 pre-
clude 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 crim-
inal 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 defen-
dant’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 * * * evi-
dence 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 foresee-
able. 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 judg-
ment of the circuit court are affirmed.
