715
Submitted February 25; portion of supplemental judgment and second amended
judgment imposing special conditions of probation reversed, remanded for
resentencing, otherwise affirmed May 26, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEITH ALLEN THARP,
aka Keith Alan Tharp,
Defendant-Appellant.
Washington County Circuit Court
19CR32867; A172155
489 P3d 1119
Defendant was convicted by guilty plea of second-degree criminal mischief
after he damaged the victim’s car. He appeals from a supplemental judgment,
which imposed probation conditions and a restitution award, and a second
amended judgment, which imposed additional probation conditions. He assigns
error to the trial court’s award of $2,504.37 in restitution, contending that the
state did not present sufficient evidence for the court to determine that the victim’s damages were reasonable. Defendant also assigns error to the trial court’s
imposition of various special conditions of probation. Held: The trial court’s award
of restitution was not error. The evidence of the victim’s damages, which included
a detailed repair estimate that was based on photographs of the damage to the
car and the victim’s testimony, was sufficient under State v. Aguirre-Rodriguez,
367 Or 614,
482 P3d 62 (2021). However, as the state concedes, the court erred in
imposing the special conditions of probation.
Portion of supplemental judgment and second amended judgment imposing
special conditions of probation reversed; remanded for resentencing; otherwise
affirmed.
James Lee Fun, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
716 State v. Tharp
SHORR, J.
Portion of supplemental judgment and second amended
judgment imposing special conditions of probation reversed;
remanded for resentencing; otherwise affirmed.
Cite as 311 Or App 715 (2021) 717
SHORR, J.
Defendant appeals from a supplemental judgment,
which imposed probation conditions and a restitution award,
and a second amended judgment, which imposed additional
probation conditions. Defendant’s appeal follows his guilty
plea to criminal mischief in the second degree. He assigns
error to aspects of his sentencing, including the trial court’s
award of restitution and its imposition of special conditions
of probation. In his first assignment of error, defendant contends that the trial court violated his due process rights
under the Fourteenth Amendment to the United States
Constitution when it admitted into evidence at the restitution hearing a written repair estimate of the damages to
the victim’s car. We conclude that that argument was not
preserved in the trial court and reject it without further
discussion. Defendant next assigns error to the trial court’s
award of $2,504.37 in restitution, contending that the state
did not present sufficient evidence for the court to determine
that the victim’s car damages were reasonable. For the reasons discussed below, we reject that assignment of error and
affirm the court’s restitution award. In his third through
eighth assignments of error, defendant assigns error to the
trial court’s imposition of various special conditions of probation. The state concedes those errors, and we accept the
state’s concessions. As a result, we reverse certain special
conditions of probation in the supplemental judgment and
the second amended judgment and remand for resentencing,
but otherwise affirm.
We begin with defendant’s second assignment of
error, which challenges the trial court’s determination that
the restitution award was reasonable. We recount only
those facts necessary to understand the restitution issue,
which are undisputed. Defendant had previously dated the
victim’s daughter. After his relationship with the daughter
ended, defendant continued “hanging around” the victim’s
apartment trying to contact the daughter. Defendant was
outside the victim’s apartment when she and a passenger
arrived in her car. After the victim told defendant not to
come by anymore, an altercation ensued between defendant
and the passenger. As the victim and her passenger drove
away, defendant threw a rock at the car and then a cinder
718 State v. Tharp
block, which put a “big dent” in the car’s driver’s side door
and scratched the driver’s side windows. As noted above,
defendant ultimately pleaded guilty to criminal mischief in
the second degree, ORS 164.354.
The victim testified at the restitution hearing that
she obtained a repair estimate from Leif’s Auto Collision.
Leif’s is identified on the estimate as an auto repair shop
located in Oregon. She testified that she went to that company because she had used its services before and trusted
it. At the time of the hearing, the victim had not had her car
repaired but intended to do so.
The state offered the repair estimate into evidence.
The estimate stated that it was a “preliminary estimate”
that was based on photographs of the car and that a complete
estimate could occur when the vehicle’s damaged parts were
removed. The estimate identified the parts that needed to
be replaced and the costs of those parts. Those parts ranged
in cost from under $10 for a clip to $365.52 for the front door
glass window. The parts and material estimate amounted to
$803.97. The estimate also identified the labor that needed
to be done, the estimated time for that labor, and the hourly
cost for the labor. The labor costs included labor for sheet
metal work (16.6 hours at $58 per hour), refinishing work
(6.7 hours at $58 per hour), and mechanical and electrical
work (2.0 hours at $115 per hour). The total identified labor
time amounted to 25.3 hours, and the total cost for that
labor totaled $1,581.40.1 The estimate also included a line
item for “sublet repairs” in the amount of $119. As noted, the
total estimate, which combined the parts, labor, and “sublet
repairs” was $2,504.37. The estimate purported to rely on
an estimating program that was proprietary.
Defendant objected to the trial court’s admission and use of the estimate. Among other things, defendant objected that the exhibit “doesn’t state the necessity
or whether it was reasonable or necessary to complete …
this repair.” Defendant further argued that, under State v.
Dickinson, 298 Or App 679,
448 P3d 694 (2019), “there [are]
1
There was also additional time identified for 6.7 hours of painting and
materials at $36 per hour, but that portion was already included in the parts and
material estimate.
Cite as 311 Or App 715 (2021) 719
real concerns here about whether or not it was reasonable
and necessary.”2
The trial court admitted the exhibit and awarded
the $2,504.37 repair-estimate amount as restitution. It
implicitly determined that the estimate amount was reasonable and explicitly determined that the repairs were
necessary. The court distinguished the evidence in the present case, a detailed car repair estimate that was based on a
photograph of the specific car damage, from a medical bill in
which the relation between the criminal conduct, particular
line items within the bill, and the overall cost is not as clear.
On appeal, defendant contends that the trial court
erred because the “bare estimate” of the cost of repairing the
damages that was provided is insufficient to demonstrate the
reasonableness of the victim’s economic damages under ORS
31.710(2)(a) and our case law. In his opening brief, defendant
relied primarily on our decision in State v. Aguirre-Rodriguez,
301 Or App 42,
455 P3d 997 (2019), rev’d,
367 Or 614,
482
P3d 62 (2021) (Aguirre-Rodriguez I). In its answering brief,
the state conceded that, under our decision in Aguirre-Rodriguez I, defendant was correct that the evidence was
insufficient to demonstrate that the damages were reasonable. However, the state noted that it had sought review of
our decision in that case, which was then pending before
the Supreme Court. Shortly after this case was submitted,
the Supreme Court reversed our decision. State v. Aguirre-Rodriguez,
367 Or 614, 624,
482 P3d 62 (2021) (Aguirre-Rodriguez II). We discuss the Supreme Court’s decision at
length below. Before that, however, we address the standard
of review and the statutory requirements for restitution.
On review of an order awarding restitution, we consider whether the evidence was sufficient to support the trial
2
Dickinson addressed whether medical and hospital charges paid by a health
insurance company and reflected on a ledger were necessarily incurred. 298 Or
App at 680, 684-85. In the trial court, defendant argued that it was unclear
whether the repairs were either necessary or a result of defendant’s criminal
conduct, suggesting that some of the car’s damage reflected in the estimate may
have occurred prior to or after defendant’s criminal conduct. On appeal, defendant mentions in his opening brief that the costs were not necessary but fails to
develop that argument beyond such bare mentions. Therefore, we do not address
that argument. Rather, we address only defendant’s developed argument that the
trial court erred when it determined that the repair costs were reasonable.
720 State v. Tharp
court’s determination that the restitution damages imposed
were reasonable. Id. at 620. We view the relevant evidence
in the light most favorable to the state as the party that
prevailed in the trial court. Id. “Because the state prevailed,
the issue … is whether a rational factfinder, accepting all
reasonable inferences, could have found the facts necessary
to support the award.” Id.
We turn to the relevant restitution law. “Under
Oregon law, restitution is to be awarded when a defendant
has been convicted of a crime that results in economic damages to the victim and the state has presented evidence of
those damages.” Id. at 618. With a limited exception not
relevant here, economic damages “[h]as the meaning given
that term in ORS 31.710.” ORS 137.103(2)(a). ORS 31.710,
in turn, provides that economic damages are “objectively
verifiable monetary losses including … reasonable costs
incurred for repair or for replacement of damaged property,
whichever is less.” ORS 31.710(2)(a). The burden of establishing the amount of economic damages is on the state,
but that evidence is subject to rebuttal and a complete challenge by the defendant. Aguirre-Rodriguez II, 367 Or at
618-19. “The [restitution] statute requires only that the damages be objectively verifiable monetary losses that result
from a defendant’s criminal activity.” State v. Ramos,
358
Or 581, 588,
368 P3d 446 (2016) (internal quotation marks
omitted).
As noted, defendant argued in the trial court and
contends again before us that the state did not meet its burden to present sufficient evidence of the reasonableness of
the costs of the repairs. We return to a discussion of Aguirre-Rodriguez II because it addresses the legal issue in this case
and has some significant overlapping facts. In that case,
the Supreme Court stated that it “remains the law” that
“evidence of payment of a charge, on its own and devoid of
explanation, does not establish that the amount charged
was reasonable,” but also concluded that the evidence was
more extensive in that case. Aguirre-Rodriguez II, 367 Or
at 620. The court looked to market value as an appropriate
measure for the reasonable cost of repairs.
Id. at 621. As
the court stated, although reasonable market value cannot
be established by mere speculation, it can be established
Cite as
311 Or App 715 (2021) 721
through reasonable inferences that a factfinder could, but is
not required to, draw from the facts adduced. Id. at 623.
In Aguirre-Rodriguez II, the state presented the following evidence to support the reasonableness of the cost of
repair of a vehicle: the bill for the vehicle’s repairs, evidence
that the bill was paid by the victim’s insurer, the Kelley
Blue Book value of the car itself, “a detailed repair estimate
that was produced using third-party materials and sourced
parts from local suppliers,” and photographs of the damage.
Id. Although noting all of those facts, the court ultimately
relied on only two key facts that permitted the trial court
as factfinder to find the charge was reasonable. The court
concluded that
“[t]he detailed repair estimate and the photographs of the
damage to the truck after the collision were sufficient to
permit a reasonable factfinder to infer that the repair costs
were a reflection of the relevant market rate and, thus,
reasonable. … Considered together, the repair estimate,
prepared using local market rates, and the photographs of
the damage to the victim’s truck, demonstrate a sufficient
nexus to permit the trial court to conclude that the cost of
repairs was reasonable.”
Id. at 623-24.
Here, the key evidence was similar. The state presented evidence of a detailed repair estimate that had a lineitem breakdown of the time required for various repairs, the
hourly labor cost for those repairs, and the cost of the parts
that needed replacement. In Aguirre-Rodriguez II, the court
stated that the estimate was prepared using “industry-standard materials designed to source prices directly from
the local market and to estimate labor rates and the price of
replacement parts.” Id. Although we do not have evidence of
whether the repair estimate was presented using “industry-standard materials” that source local prices and labor rates,
the estimate provided here at least includes references to
software that aided in producing the estimated prices and
the estimate, as in Aguirre-Rodriguez II, identified specific
labor, hourly labor rates, and the cost of replacement parts.
There is also evidence that Leif’s is an Oregon-based auto
722 State v. Tharp
repair shop and much of the cost of the estimate is based
on labor that was to be performed by Leif’s. A defendant
may challenge that estimate and a reasonable factfinder
might infer that the prices were too high, but there was a
basis from which a factfinder at least “could” conclude that
the rates were reasonable. See id. at 623 (“A reasonable
inference is one that a factfinder could infer from the facts
adduced; it is not an inference that a factfinder is required
to draw.” (Emphasis in original.)).
In Aguirre-Rodriguez II, the court also relied on the
fact that there were photographs in evidence showing the
damage. Id. at 624. Here, there were no photographs presented in evidence, but there was evidence that the estimate
itself, which was in evidence, was prepared based on photographs of the damage. Further, at the restitution hearing,
the victim described the damage to the car, namely a “big
dent” in the car door and scratched car-door window. That
testimony would at least allow a factfinder to draw inferences connecting the described damage to the repair estimate, and to assess the types of damage at issue compared
to the repair estimate. Although photographic evidence
might provide more detail than testimony, we do not require
such evidence to prove damages, and testimonial evidence is
commonly relied upon to describe damage. See, e.g., Scholes
v. Sipco Services & Marine, Inc., 103 Or App 503, 506,
798
P2d 694 (1990) (in the civil context, “[a]n owner’s testimony
of the amount of damages generally suffices to withstand
a motion to dismiss or for a directed verdict on the issue of
damages”).
Defendant argues that the state’s proof is weaker
than that presented in Aguirre-Rodriguez because, in that
case, there was a paid bill reflecting the damages and, here,
the estimate had not been paid by the victim. We observe
that, in the end, the Supreme Court did not rely on that fact
in concluding that there was sufficient evidence from which
a factfinder could find that the repair bill was reasonable.
Aguirre-Rodriguez II, 367 Or at 623. Perhaps it could add
slightly to an inference of reasonableness if there is evidence
that the victim had paid the proposed estimate, indicating
that the victim at least thought it reasonable enough to pay.
Cite as
311 Or App 715 (2021) 723
Regardless, the Supreme Court did not resolve that issue in
Aguirre-Rodriguez II and neither do we in this case.3
As noted, the court in Aguirre-Rodriguez II found
it significant that the estimate in that case was based on
“industry-standard materials designed to source prices
directly from the local market and to estimate labor rates
and the price of replacement parts.” 367 Or at 623-24.
Likewise, here, there is evidence that the estimate used
industry software to determine rates. Further, a factfinder
could reasonably infer that the labor used is local labor
based on Leif’s rates because there was evidence that Leif’s
is an Oregon-based repair shop that the victim used previously for her car repairs. From that evidence, a reasonable
factfinder could also infer that this was a proposed armslength transaction between the victim and a local business.
We are unaware whether the replacement car parts are
sourced locally, if such parts are priced based on local markets, or from national suppliers based on national prices.
The Supreme Court did not clarify whether that additional
fact was controlling and always necessary where there is
evidence of a detailed repair estimate from a local car shop
using local labor as well as evidence of corresponding damage to the car. Nevertheless, we conclude that a factfinder
could find the rates in the repair estimate are reasonable
without engaging in impermissible speculation in light of
the significant detail provided in the estimate, the inference
that the labor rates are based on Leif’s rates for local labor
performed at their shop, and the ability of the factfinder to
assess the damage for itself and compare that to the estimated repair costs. See Aguirre-Rodriguez II,
367 Or at 623
(stating that an inference cannot be “supported by mere
speculation” but “must be reasonable, based on the record”).
In sum, we conclude that the state presented sufficient evidence from which the trial court acting as factfinder could
draw the conclusion that the $2,504.37 repair estimate was
reasonable. As a result, we affirm its restitution award.
3
We are unaware of any requirement in the law that a detailed estimate
must be paid to be found reasonable. We note that the victim testified that she
had intended to make the repairs with this auto-body shop and had used them in
the past. We further observe that a person may suffer property damage without
choosing to repair that damage, and that choice does not necessarily reflect on
the reasonableness of the cost of repair.
724 State v. Tharp
Finally, defendant contends in his third through
eighth assignments of error that the trial court erred in
adding special conditions of probation that required defendant to submit to a search of his “person, residence, vehicle and property by the supervising officer” as well as several financial conditions that generally required defendant
to “Provide Financial Records,” submit to a “Financial
Review,” “Be Financially Responsible,” “Disclose Income,”
and “Disclose [financial transactions] Greater Than $200”
to his supervising officer. Further detail of the financial
restrictions imposed are not necessary to this opinion.
Defendant contends that the search condition is
overbroad and invalid because the legislature has already
required probationers to consent to searches, but only “if
the supervising officer has reasonable grounds to believe
that evidence of a violation will be found.” ORS 137.540(1)(i).
Defendant contends that, in State v. Schwab, 95 Or App
593, 596-97,
771 P2d 277 (1989), we vacated a nearly identical probation condition that required the probationer to
unconditionally consent to a search. The state concedes that
Schwab controls this case and the trial court erred in imposing the special condition. We agree and accept the state’s
concession.
Defendant next contends that the trial court erred
in imposing the special financial probation conditions
because they are not reasonably related to his conviction for
criminal mischief for damaging the car or to his needs as
a probationer under ORS 137.540(2).4 The state again concedes that error. Because the record does not support the
imposition of the special conditions of probation relating to
defendant’s finances, we accept the state’s concession.
In sum, we reject defendant’s challenge to the restitution award. However, we agree with defendant’s challenge to the special conditions of probation noted above and
reverse those conditions.
4
ORS 137.540(2) provides, in relevant part, that a court may impose “any
special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation
of the probationer, or both.”
Cite as 311 Or App 715 (2021) 725
Portion of supplemental judgment and second
amended judgment imposing special conditions of probation
reversed; remanded for resentencing; otherwise affirmed.
