State v. Rothchild

No. 978 October 14, 2026 683 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. TIFFANY IRENE ROTHCHILD, Defendant-Appellant. Malheur County Circuit Court 22CR60195, 21CR11116; A183187 (Control), A183188 Lung S. Hung, Judge. (Judgment filed October 6, 2023). Erin K. Landis, Judge. (Supplemental Judgment filed January 8, 2024). Submitted October 2, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. POWERS, J. Affirmed. 684 State v. Rothchild Cite as 353 Or App 683 (2026) 685 POWERS, J. In this consolidated criminal appeal, defendant appeals from a judgment of conviction for one count of crim- inal mischief in the first degree and two counts of recklessly endangering another person and from a supplemental judg- ment imposing restitution. In her first assignment of error, defendant challenges the trial court’s denial of her motion to suppress statements made to law enforcement, asserting that she did not waive her constitutional right to silence. In her second assignment of error, defendant argues that the trial court erred when it awarded over a million dol- lars in restitution without jury findings. As explained below, we first conclude that the trial court did not err in denying defendant’s motion to suppress because defendant waived her right to silence by making statements that evinced a willingness and desire to have a generalized discussion about the investigation. We further conclude that the court did not err in imposing restitution without jury findings because restitution proceedings are not “civil cases” for purposes of the Oregon and United States Constitutions. Accordingly, we affirm. The facts are relatively few and undisputed on appeal; the dispute on appeal centers on the legal conclu- sion from those facts. In September 2022, law enforcement investigated an explosion and fire that damaged a prop- erty in Ontario. During that investigation, Officer Llamas of the Ontario Police Department took defendant into cus- tody. Upon arrival at the police department, defendant told Llamas that she did not want to speak to anyone regarding the arson case and that she just wanted to be hauled off to jail. Thirty-five minutes later, defendant called Llamas back to the cell and requested to speak with her. Without prompt- ing from Llamas, defendant made two statements: “They had dynamite in that closet in the bathroom,” and “I have all the messages from everyone that was there.” Llamas did not pursue further questioning. Later that same day, defendant was transported to Malheur County Jail. Lieutenant Swank of the Ontario Police Department arrived at the jail to speak to defendant and was unaware that Llamas and defendant had already 686 State v. Rothchild spoken. Swank advised defendant of her Miranda rights. Swank asked defendant if she understood her rights, and she responded “yeah.” Swank then told defendant why he was talking to her, and defendant denied any involvement in the fire or explosion. It is those statements to Swank that are the focus of the arguments on appeal. Ultimately, defendant was charged with first-degree arson incident to manufacture of cannabinoid extract, unlaw- ful manufacture of a marijuana item, first-degree criminal mischief, and two counts of recklessly endangering another person. Defendant filed a motion to suppress the statements that she made to Swank.1 Denying the motion, the trial court concluded that, although defendant’s invocation of her right to silence when initially speaking to Llamas was unequivocal, she demonstrated a “willingness and desire for a generalized discussion about the investigation” and thus waived the right to silence. Defendant then entered conditional guilty pleas to the first-degree criminal mischief charge and to both counts of recklessly endangering another person, reserving the right to appeal the court’s denial of her suppression motion. The court entered a general judgment to that effect and extended defendant’s probation from a prior conviction. The trial court then held a restitution hearing for the property damage from the explosion and fire. At the hearing, defendant contested the valuation submitted by Farmers Insurance but did not raise an issue of a jury trial being necessary to determine the facts supporting restitu- tion. The court imposed $1,183,900 restitution to Farmers Insurance in a supplemental judgment. Defendant now timely appeals from the general judgment and supplemental judgment, raising two assignments of error.2 In her first assignment of error, defendant contends that the trial court erred in denying her motion to suppress 1 Defendant also moved to suppress evidence that law enforcement seized from two purses left at the site of the explosion and fire. The trial court granted the motion as to one purse and denied the motion as to the second. Those suppres- sion rulings are not at issue in this appeal. 2 Defendant also appeals from the judgment that extended probation in Case No. 21CR11116; however, because defendant does not otherwise challenge that decision and given our disposition on defendant’s two assignments of error, we affirm the judgment in Case No. 21CR11116. Cite as 353 Or App 683 (2026) 687 the statements that she made to Swank in violation of her rights under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. We review the denial of a motion to suppress for legal error. State v. Fink, 285 Or App 302, 308, 395 P3d 934 (2017). The question of what transpired during a custodial interroga- tion is an issue of fact for the trial court. State v. James, 339 Or 476, 481, 123 P3d 251 (2005). We are bound by the trial court’s findings of historical fact if evidence in the record supports them, although we assess anew whether the facts suffice to meet constitutional standards. Id. Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution pro- tect a criminal defendant’s right against compelled self-in- crimination.3 State v. McAnulty, 356 Or 432, 454, 338 P3d 653, cert den, 577 US 829 (2015). The right to silence and right to counsel are derivative of that broader right. State v. Schrepfer, 288 Or App 429, 435, 406 P3d 1098 (2017). To protect those rights, law enforcement is required to give Miranda warnings to persons in custody or otherwise com- pelling circumstances. McAnulty, 356 Or at 454. A crimi- nal defendant can validly waive the right against compelled self-incrimination, even after an initial invocation, if that waiver is knowing, intelligent, and voluntary under the totality of the circumstances. Id. at 455. One of the ways that the state can establish the voluntariness of a defendant’s post-invocation waiver is by showing that the defendant initiated communication with law enforcement in a manner that “evinced a willingness and a desire for a generalized discussion about the inves- tigation.” State v. Crawford, 73 Or App 53, 58, 698 P2d 40 (1985) (citing Oregon v. Bradshaw, 462 US 1039, 1045-46, 103 S Ct 2830, 77 L Ed 2d 405 (1983)). A defendant’s communication with law enforcement will not meet that standard if that communication is merely related to a “routine incident of the custodial relationship.” 3 Although defendant raises challenges under both the state and federal constitution, defendant has not provided a separate argument under federal law. Accordingly, we consider defendant’s arguments together. See, e.g., State v. Anderson, 285 Or App 355, 356 n 1, 396 P3d 984, rev den, 362 Or 94 (2017). 688 State v. Rothchild State v. Cavallaro, 276 Or App 899, 907-08, 369 P3d 1220 (2016) (concluding that the defendant’s statement that he “didn’t really know why he was in jail” merely related to a routine incident of the custodial relationship and did not waive the right to silence). Similarly, statements that are incidental to arrest and that serve as a “meager attempt to exculpate” will not qualify. See State ex rel Juv. Dept. v. Thai/Schmolling, 138 Or App 354, 359, 908 P2d 844 (1995) (determining that the defendant’s question “why?” and sub- sequent refutation were a “meager attempt to exculpate himself” and that there was no waiver). Conversely, a defen- dant that makes unprompted statements that “pertain[ ] directly or indirectly to the substance of the investigation” may waive the invoked right. State v. Meade, 327 Or 335, 341, 963 P2d 656 (1998) (determining that the defendant, who said “You’ve talked a lot. I want to say a few things,” waived the right against compelled self-incrimination). Here, the parties do not dispute that defendant was subject to custodial interrogation and that she unequivocally invoked the right to remain silent. In challenging the trial court’s suppression decision, however, defendant argues that her statements to Llamas constituted an attempt to offer a single piece of exculpatory evidence, not a willingness and desire to have a generalized discussion about the investi- gation that would then permit interrogation by Swank. Defendant contends that Llamas’s lack of reaction corrobo- rates that position. Thus, defendant asserts that she did not waive her right to silence. The state remonstrates that the trial court correctly denied the suppression motion because defendant’s unprompted statements evinced a willingness and desire to have a generalized discussion about the inves- tigation such that defendant waived the right to silence. We agree with the state’s argument. Defendant called Llamas back thirty-five minutes after invoking the right to silence and, unprompted, told Llamas, “They had dynamite in that closet in the bath- room” and “I have all the messages from everyone that was there.” Those statements did not relate to a “routine inci- dent of the custodial relationship.” Cavallaro, 276 Or App at 908. Defendant was not merely asking for water or to Cite as 353 Or App 683 (2026) 689 use the telephone. Defendant was not broadly inquiring as to the charges against her. Defendant was, however, mak- ing unprompted and specific statements to Officer Llamas about the incident underlying the arson charge. Although the provided information referenced other people, defen- dant’s statements demonstrated a willingness to engage in further discussion about the incident, not a meager attempt to exculpate herself by implicating others. Although defendant points to Llamas’s lack of reac- tion as support for her argument, the focus in determin- ing whether defendant waived the right to silence is on the substance of defendant’s statements. Given the trial court’s factual findings—which are binding on appeal given this record—that defendant reinitiated contact with Llamas and made specific, unprompted statements about the investiga- tion, we conclude that defendant waived her right to silence by evincing a willingness and desire to have a generalized discussion about the investigation. It was therefore not improper for Swank to interrogate her later after he pro- vided Miranda warnings. Accordingly, the court did not err in denying defendant’s motion to suppress. In her second assignment of error, defendant asserts that the trial court plainly erred when it imposed restitu- tion without jury findings. Defendant acknowledges that this argument is unpreserved and requests that we exercise plain-error review. For an error to be plain, the error must be “an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). If those prongs are sat- isfied, we then determine whether to exercise our discretion to reach the plain error and correct it. Id. at 630-631. On appeal, defendant advances two arguments. First, defendant contends that she was entitled to a jury determination for the amount of restitution under Article I, section 17, of the Oregon Constitution. Second, defendant argues that she was entitled under the Sixth and Seventh Amendments to the United States Constitution to have a jury determine the amount of restitution. The state asserts that defendant failed to demonstrate plain error because 690 State v. Rothchild defendant was not “obviously” entitled to a jury under the Oregon or United States Constitutions. Defendant’s plain-error arguments are unavail- ing. The Oregon Supreme Court and we have repeatedly concluded that criminal restitution serves a penal function under Article I, section 17, of the Oregon Constitution. State v. Fox, 370 Or 456, 466 n 6, 521 P3d 151 (2022) (reiterating that restitution “is a penalty that serves a penal purpose”); State v. Rich, 349 Or App 48, 69, 591 P3d 1241 (2026) (deter- mining that “restitution is not a civil proceeding”). Indeed, in State v. Myers, 349 Or App 80, 90, 591 P3d 1197, rev allowed, 375 Or 748 (2026), we concluded that the amendments to ORS 137.106 that made restitution mandatory highlight the penal nature of restitution. Similarly, we reject defendant’s arguments under the United States Constitution. First, we have concluded that the Sixth Amendment right to a jury trial does not apply to Oregon’s restitution proceedings. State v. Deslaurier, 277 Or App 288, 289, 371 P3d 505 (2016). Second, the Seventh Amendment does not apply to the states through the Fourteenth Amendment. Parrott v. Carr Chevrolet, Inc., 331 Or 537, 558 n 15, 17 P3d 473 (2001) (citing Minn. & St. Louis R.R. v. Bombolis, 241 US 211, 36 S Ct 595, 60 L Ed 961 (1916)). Defendant does not challenge those cases or provide a meaningful argument to distinguish them. Thus, because defendant’s argument fails to satisfy the first prong of the plain-error test, we do not further consider her unpreserved assignment of error. Affirmed.