State v. Moore

                               579

         Submitted September 19, affirmed November 14, 2019


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                RANDY ALLEN MOORE,
                   Defendant-Appellant.
              Deschutes County Circuit Court
                   14FE1395; A166912
                            

  Walter Randolph Miller, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, Mooney, Judge, and
Hadlock, Judge pro tempore.
  PER CURIAM
  Affirmed.
580                                                          State v. Moore

           PER CURIAM
         On resentencing after remand, the trial court
imposed a $5,000 compensatory fine in connection with
defendant’s convictions for first-degree sexual abuse, which
defendant challenges in this appeal.1 At the resentencing
hearing, the state presented a letter from the child victim’s parents that the child was undergoing counseling as
the result of defendant’s crimes and that the family had
suffered other financial hardship. The court ordered that
the compensatory fine be paid to the child’s mother. As
refined in a memorandum of additional authorities, defendant argues on appeal that the court erred because there
is no evidence that the minor victim “incurred” economic
damages. According to defendant, the fine was awarded for
counseling costs that were or would be expended on behalf
of the minor victim, and, under cases decided after he filed
his brief, in particular, State v. Moreno-Hernandez, 

, 

 (2019), and State v. White, 

, 

 (2019), she cannot be financially responsible for those costs. Defendant contends that the error is
preserved; alternatively, he requests plain error review. We
reject both propositions.
         First, defendant’s arguments to the trial court
below—that the court erred because (1) the state failed
to provide any evidence about the costs of the counseling
and (2) defendant would be unable to pay the fine due to
his lengthy incarceration—are insufficient to preserve his
appellate contention. Second, it is at least questionable
whether the court might permissibly have imposed the fine,
directed to the mother, under the definition of “victim” in
ORS 137.103(4)(b)—that is, “[a]ny person not described in
[ORS 137.103(4)(a)] whom the court determines has suffered
economic damages as a result of the defendant’s criminal
activities.” Moreno-Hernandez, 

 (to impose
compensatory fine, injured victim must meet one of the statutory definitions of “victim” in ORS 137.103(4)); 

 at 190

    1
      In defendant’s first appeal, we concluded that the trial court plainly erred
in imposing the $5,000 compensatory fine in addition to a punitive fine and
reversed and remanded for resentencing on that basis. State v. Moore, 

, 

 (2017).
Cite as 

 (2019)                              581

(remanding for resentencing because, although court erred
in imposing compensatory fine directed to minor victim in
Department of Human Service’s custody, “it may be that a
compensatory fine could be imposed, payable to another victim”). And, defendant has not attempted to explain why that
is not the case. Thus, the error, if any, is not plain. Ailes v.
Portland Meadows, Inc., 

, 

 (1991)
(plain error review requires that the legal error be “obvious,
not reasonably in dispute”); State v. Tilden, 

, 

 (2012) (“[I]t is incumbent upon the appellant to explain to us why an error satisfies the requisites of
plain error and, further, why we should exercise our discretion to correct that error.”). For the same reason, we would
not exercise our discretion to correct the error, even if it was
plain. 

        We reject defendant’s alternative argument—that
the court erred in imposing the compensatory fine because
the record lacks evidence of the “actual costs” of the victim’s
counseling—on the merits without discussion.
        Affirmed.