542
Submitted February 28, affirmed March 23, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALONZO DELAUNO MASHADDA,
aka Alonzo Delanno Mashadda,
aka Rameal Leon Stroud,
Defendant-Appellant.
Washington County Circuit Court
18CR85602; A174737
508 P3d 81
Defendant appeals from a supplemental judgment in which the trial court
imposed $3,920.36 in restitution. Defendant argues that the trial court plainly
erred in awarding that amount, because the record does not support the specific
amount of restitution ordered. Held: The trial court did not plainly err in imposing the challenged amount of restitution where there was evidence in the record
to support such an award.
Affirmed.
Andrew Erwin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joshua B. Crowther, 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 Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
Cite as 318 Or App 542 (2022) 543
HELLMAN, J.
Defendant appeals from a supplemental judgment
in which the trial court imposed $3,920.36 in restitution.
Although he did not raise this issue below, he asks us to
conclude that the trial court plainly erred in awarding that
amount, because the record does not support the specific
amount of restitution ordered. For the reasons below, we
affirm the decision of the trial court.
In 2019, defendant entered into a global plea agreement to resolve several pending cases. For purposes of this
appeal, the relevant portion of the plea agreement stated:
“Restitution [to be determined] for victim of 19CR19483.”
In that referenced case, which was dismissed as part of the
global agreement, defendant was charged with harassment
based on allegations that he struck the victim in the face
with his backpack while both of them were riding a MAX
train.
The trial court later held a contested restitution
hearing at which the state introduced evidence from the
victim and from a representative of the victim’s insurance
company. The victim testified about the incident and his
understanding of his medical expenses and lost wages. The
insurance company representative testified about the medical payments made on the victim’s behalf and on what his
out-of-pocket expenses were. The state also introduced documentary evidence about the victim’s lost wages and out-of-pocket medical costs, and the amount that the insurance
company had paid on the victim’s behalf. Defendant testified
on his own behalf, in support of his theory that his backpack
hit the victim by accident on a crowded MAX train, and
that the injuries for which the victim was treated occurred
during a later altercation in which the victim had been the
initial aggressor. As a result, defendant argued, he should
not be held responsible for the victim’s medical bills and lost
wages.
The trial court rejected defendant’s theory and
determined that he owed the victim restitution. It awarded
the amounts that the state had requested, which were
“$1,041.69 payable to Anthem Blue Cross as their subrogation amounts. Then to [the victim] the amount of $2,878.67
544 State v. Mashadda
which [includes] both his lost wages, as testified to, and
also his deductible of $1,966.18 and $370.09.” The total was
$3,920.36. Defendant did not object to the amount of restitution. This appeal followed.
On appeal, defendant admits that his assignment
of error is unpreserved, but he argues that the trial court
plainly erred in reaching its restitution amount. According
to defendant, the evidence before the trial court did not allow
a finding that $3,920.36 was a correct restitution amount.
In support of his argument, defendant cites the victim’s
testimony in which he stated that his out-of-pocket medical expenses were only $1,105.42, a discrepancy between
the victim’s testimony about his lost wages and the claimed
amount, and indications that the victim never paid an
ambulance bill. Defendant relies on State v. Morgan, 274 Or
App 161, 165-66,
359 P3d 1242 (2015), in which we reversed
an award of restitution as plain error because the record
below did not include evidence from which the trial court
could have determined the particular amount it awarded.
The state responds that the error is not plain both
because there is some evidence in the record to support the
trial court’s decision and because resolution of the issue
would require us to make a determination between competing factual inferences. We agree with the state.
When an issue is not preserved below, the appellant
can nonetheless ask us to review for “plain error.” ORAP
5.45(1), (4)(b), (7). Plain-error review is a two-step process.
We must first determine that the error is plain, which
means that it is “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
three elements are met, we then must determine whether to
exercise our discretion to correct the error. Ailes v. Portland
Meadows, Inc.,
312 Or 376, 382 n 6,
823 P2d 956 (1991).
Recognizing that his claim was unpreserved below,
defendant requested that we review for plain error. In this
case we begin and end with the first step of the plain-error
analysis. We do not reach the second step because resolution of the issue would require us to make a decision about
Cite as 318 Or App 542 (2022) 545
competing factual inferences in the record. Here, the victim did testify about medical expenses that differed from
those reflected in the billing statements from the hospital
and the insurance company. However, in addition to those
billing statements, the state also introduced testimony
from the insurance representative about the loss amounts.
Determining whether the trial court erred would require
us to decide whether more weight should have been given to
the victim’s testimony, or the insurance representative’s testimony, and the respective weight to give the documentary
evidence. If we have to engage in that kind of analysis to
reach a decision, the alleged error is not plain.
In addition, the trial court’s award of $3,920.36 is
supported by evidence in the record, specifically the billing
records and the insurance agent’s testimony. “[W]here the
prosecutor presents some evidence to support restitution
of a particular amount, and the defendant does not raise
an objection to the amount of restitution pursuant to ORS
137.106(5), the trial court does not plainly err in imposing
restitution in that amount.” State v. West, 249 Or App 257,
258,
274 P3d 892 (2012) (summarizing State v. Gruver,
247
Or App 8, 17,
268 P3d 760 (2011)). The fact that the record in
this case contains the required evidence distinguishes this
case from Morgan, in which the factual record contained
no evidence to support the specific amount of restitution
ordered by the trial court.
In sum, the error in this case is not plain, and review
is unavailable. We affirm the decision of the trial court.
Affirmed.
