279
Submitted July 2; supplemental judgment reversed, remanded for resentencing,
otherwise affirmed August 26, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
FERNANDO BOZA,
Defendant-Appellant.
Multnomah County Circuit Court
17CR67870; A169763
473 P3d 1161
Christopher A. Ramras, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.
280 State v. Boza
PER CURIAM
Defendant was convicted of first-degree sexual abuse.
In a supplemental judgment, the trial court ordered defendant to pay restitution, including restitution in the amount
of $240 to the Children’s Center of Clackamas County
(Children’s Center) and $1,522.36 to the Department of
Justice: Crime Victim Services, also referred to by the parties as the Crime Victims Compensation Fund (CVCF).1
Those restitution amounts were based on the cost of the
Children’s Center’s medical evaluation of the victim of
defendant’s crime. On appeal, defendant contends that the
trial court awarded those restitution amounts in error and
asks that we vacate those awards. The state concedes that
the trial court erred when it awarded restitution to the
Children’s Center and CVCF. The state bases its concession
regarding the Children’s Center award on State v. White,
296 Or App 445,
439 P3d 569, rev den,
365 Or 195 (2019),
in which we held that on the record before the trial court,
Child Abuse Response and Evaluation Services (CARES)
did not suffer economic damages by providing services to
the direct victim of the defendant’s crimes and was not a
“victim” to whom the defendant could be ordered to pay restitution under the restitution statute. Here, the state agrees
with defendant that, as in White, the state did not provide
a cognizable legal theory by which defendant could be held
liable for economic damages against the Children’s Center.
See id. at 450. Regarding CVCF, the state concedes that
the restitution award was legally erroneous because, under
ORS 137.103(4)(c), restitution can be awarded to CVCF only
to compensate for expenditures on behalf of a direct victim
who has suffered economic damages; under State v. Moreno-Hernandez,
365 Or 175, 189,
442 P3d 1092 (2019), unemancipated minors do not suffer economic damages for medical expenses—their parents do; and the restitution award
to CVCF was based on expenditures made on behalf of the
minor victim for the costs of the Children’s Center medical
evaluation. See State v. Allida,
300 Or App 819,
455 P3d 1042
(2019) (trial court erred by ordering restitution to Criminal
1
The parties agree that the Crime Victims Compensation Fund appears to
be a different name for the Criminal Injuries Compensation Account, which is
considered to be a “victim” under certain circumstances. ORS 137.103(4)(c).
Cite as 306 Or App 279 (2020) 281
Injuries Compensation Account and insurer for costs of
CARES evaluation for minor victim); State v. White,
299 Or
App 165, 168,
449 P3d 924 (2019) (medical insurance carrier
did not qualify as a victim because unemancipated minor
did not suffer economic damages under ORS 137.103(4)(a)).
We agree with and accept the state’s concession.
Turning to disposition, the state argues that the
proper remedy is to reverse the supplemental judgment
imposing restitution and remand for resentencing to allow
the trial court to determine if it has “other permissible
options by which to hold the defendant financially accountable for the consequences of his crime.” White, 299 Or App at
169 (citing Moreno-Hernandez, 365 Or at 190-91). We agree
with the state.
Supplemental judgment reversed; remanded for
resentencing; otherwise affirmed.
