State v. Park

                                      692

 Submitted April 16, 2021; portion of judgment imposing restitution reversed,
                   otherwise affirmed February 24, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   JAMES KEE TAIK PARK,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR08009; A172294
                                  

     Defendant appeals a judgment of conviction, challenging the trial court’s
imposition of restitution for the Criminal Injuries Compensation Account (CICA).
Defendant argues that the trial court plainly erred in imposing the restitution
because there was no evidence to establish that CICA suffered economic damages
as a result of defendant’s criminal conduct. Defendant notes that the only record
of services to the victims were their CARES evaluations but argues that a court
is not legally permitted to order restitution to reimburse CICA for CARES evaluation services. The state concedes that the trial court plainly erred because it
was without the legal authority to impose restitution to CICA as reimbursement
for the CARES evaluations. Held: Although the record is insufficient to establish
that the restitution was based on payments that CICA made to CARES for the
victims’ evaluations, the Court of Appeals agreed with the parties that the trial
court plainly erred where there was no factual record to establish that defendant’s criminal conduct resulted in economic damages to CICA. The court exercised discretion to correct the error and determined that, based on the unique
circumstances of the case, the proper disposition was to reverse the portion of the
judgment imposing restitution.
    Portion of judgment imposing restitution reversed; otherwise affirmed.


   D. Charles Bailey, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   ORTEGA, P. J.
   Portion of judgment imposing restitution reversed; otherwise affirmed.
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 (2022)                                               693

           ORTEGA, P. J.
         Defendant appeals a judgment of conviction for
numerous counts of various sex crimes committed against
two minor victims. We reject without written discussion
defendant’s first and second assignments of error and write
only to address defendant’s third assignment, in which he
challenges the trial court’s imposition of $1,581.36 in restitution. For the following reasons we reverse the imposition
of restitution.
         The following facts are undisputed. During trial,
evidence was presented that CARES Northwest conducted
forensic interviews of both minor victims during the criminal investigation. The state filed a restitution notice
requesting $1,581.36 in restitution for the Criminal Injuries
Compensation Account (CICA). Following defendant’s conviction, at sentencing the state requested the same amount
in restitution for CICA. Defendant did not object. The court
imposed $1,581.36 in restitution to CICA and sentenced
defendant to a combined prison term that the state conceded at sentencing was “functionally” equivalent to a life
sentence for defendant.
        On appeal, defendant argues that the trial court
plainly erred in imposing $1,581.36 in restitution to CICA
because there was no evidence to establish that it suffered
economic damages as a result of defendant’s criminal conduct. See ORS 137.103(2)1 and ORS 31.7052 (defining “economic damages” for purposes of restitution in criminal cases);
ORS 137.103(4) (defining “victim” for purposes of restitution).
Defendant notes that the only record of services to the victims
were their CARES evaluations but argues that a court is not
permitted to order restitution to reimburse CICA for CARES
evaluation services. See State v. Herfurth, 

, 

 (2016), rev den, 

 (2017)
(concluding that there was insufficient evidence to support

    1
      ORS 137.103 was amended following the pertinent events of this case. See
Or Laws 2021, ch 478, § 9. However, we refer to the current version of the statute
throughout the opinion because those amendments do not affect our analysis.
    2
      ORS 31.705 was amended following the pertinent events of this case. See
Or Laws 2021, ch 478, § 3. However, we refer to the current version of the statute
throughout the opinion because those amendments do not affect our analysis.
694                                              State v. Park

the imposition of restitution to CICA as reimbursement costs
to CARES for its evaluation of the victim where there was no
evidence to establish a theory of civil liability under which
those costs could be recoverable against defendant, which
is required to constitute “economic damages” under ORS
137.103(2)); see also State v. White, 

,

, rev den, 

 (2019) (concluding that
CARES was not a “victim” under ORS 137.103(4)(b) where
state did not explain “why its provision of services constitutes ‘economic damages’ within the meaning of the restitution statutes”). Therefore, defendant asserts that there was
an insufficient factual record to support imposing restitution
to CICA and that the error is plain. ORAP 5.45(1); State v.
Brown, 

, 

 (1990) (plain error is
an error of law that is obvious and not reasonably in dispute,
and appears on the face of the record). Defendant also urges
that we exercise our discretion to correct the error. See Ailes
v. Portland Meadows, 

, 382 n 6, 

 (1991)
(setting forth considerations in deciding whether to exercise
discretion to correct plain error).
          The state concedes that the trial court plainly erred
in imposing restitution to CICA, although on a slightly different legal basis. The state agrees that the “record does not
reflect what [the restitution] amount was based on” but, like
defendant, notes that the record establishes that CARES
conducted evaluations of the victims. From there, the state
contends that the court was without legal authority to impose
restitution to CICA based on payments it made to CARES
for its evaluations. That is so, according to the state, because
ORS 137.103(4), as interpreted by State v. White, 

, 

 (2019), prohibits CICA from obtaining restitution “for the expenses that a minor incurs for the costs of
undergoing a CARES sex-abuse evaluation or other medical
expense.” See, e.g., id. at 167-68 (concluding that the trial
court was not statutorily authorized to impose restitution
to Providence, the victim’s medical insurer, for costs that
Providence paid to CARES and Randall Children’s Hospital
as reimbursement for their evaluations of the minor victim’s
injuries related to the incident; assuming without deciding
that those costs were properly considered medical expenses,
“the medical expenses of an unemancipated minor child are
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 (2022)                              695

not damages suffered by the child but, instead, are damages
suffered by the child’s parents”). Therefore, on that basis, the
state concedes that the trial court plainly erred in imposing
restitution to CICA. Although the record is insufficient to
establish that the restitution was based on payments that
CICA made to CARES for the victims’ evaluations, we agree
with the parties that the trial court plainly erred in ordering restitution to CICA on this record.

          Here, there was insufficient evidence to establish the
nature of the ordered restitution. See State v. Ixcolin-Otzoy,

, 104, 

 (2017), rev den, 

 (2018) (state’s burden to prove by a preponderance of the
evidence the “nature and amount” of the victim’s economic
damages (internal quotation marks omitted)); ORS 137.106
(providing that state must present “nature and amount” of
economic damages). The parties do not dispute that there
was no evidence explaining who CICA made payments to, or
what the payments were made for. Although the state’s concession assumes that the restitution was based on payments
that CICA made to either the victims’ insurers or directly to
CARES as reimbursement for the costs of the CARES evaluations of the minor victims, there is nothing in the record to
support a nonspeculative inference that that was what happened, or that CARES even sought financial reimbursement
for its services. Further, as the parties agree, there is no
other evidence in the record that would support the imposition of restitution to CICA. Therefore, we conclude that there
was no factual record to establish that defendant’s criminal
conduct resulted in $1,581.36 of economic damages to CICA.
See ORS 137.103(4)(c) (providing that CICA is a “victim” for
purposes of criminal restitution statutes “if it has expended
moneys on behalf of a victim described in paragraph (a) of
this subsection” (emphasis added)); ORS 137.103(4)(a) (defining “victim” as the “person … against whom the defendant
committed the criminal offense, if the court determines that
the person … has suffered or did suffer economic damages
as a result of the offense”); ORS 31.705 (defining “economic
damages” as “objectively verifiable monetary losses”).

        We also conclude that the trial court’s error was
plain based on our case law. See, e.g., State v. Martinez, 250
696                                             State v. Park

Or App 342, 343-44, 

 (2012) (although a restitution exhibit indicated that Care Oregon, as an insurance
carrier, paid a certain amount to one of the victims, the trial
court plainly erred in ordering restitution where there was
no evidence establishing that defendant’s criminal conduct
resulted in economic damages to Care Oregon); State v.
Tippetts, 

, 

 (2010) (concluding that trial court plainly erred in ordering restitution for
counseling costs for the victims and the victims’ mothers
where there was no record to establish that they suffered
those economic damages). And, for the reasons stated in
Martinez, 

, we exercise our discretion to
correct the error.
         Turning to our disposition, both parties request
that we reverse the restitution award without remanding
for resentencing. The state explains that it does not plan to
seek modification of any of the sentencing terms if the case
were remanded. Based on the unique circumstances of this
case, we agree with the parties and conclude that this is an
appropriate case to reverse without a remand for resentencing. Cf. White, 299 Or App at 169 (explaining that, where
court erred in imposing a restitution award, a remand for
resentencing is appropriate if the record indicates that the
trial court may have an alternative basis on which to impose
restitution). Accordingly, we reverse the portion of the judgment imposing restitution and otherwise affirm.
        Portion of judgment imposing restitution reversed;
otherwise affirmed.