State v. Reyes-Castro

                                       220

   Argued and submitted June 15, 2021, affirmed June 8, petition for review
                  denied November 23, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      ROSA REYES-CASTRO,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        18CR18747; A170614
                                   

     Defendant appeals her judgment of conviction for first-degree kidnapping,
ORS 163.235, and the trial court’s imposition of restitution to compensate for
hospital bills resulting from the victim’s injuries. In her first and second assignments of error on appeal, she argues that the trial court erred in denying her
motion for judgment of acquittal (MJOA), contending that there was insufficient
evidence that she aided and abetted her codefendant in the commission of a kidnapping. In her third assignment of error, she assigns error to the trial court’s
imposition of restitution, arguing that she did not personally cause the victim’s
injuries. Held: Defendant’s MJOA at trial differed substantively from the specific
theory of insufficiency that she presents on appeal and, therefore, failed to preserve her first and second assignments of error for review. The trial court also did
not plainly err in convicting defendant of kidnapping on an aid-and-abet theory
where the record contained evidence to support that conviction. Nor did the trial
court plainly err by ordering defendant to pay restitution for the victim’s medical
bills where there was some evidence to support a causal link between the crimes
for which defendant was convicted and the alleged damages.
    Affirmed.


   Donald D. Abar, Judge.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Jonathan N. Schildt argued the cause for respondent.
On the brief were Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and Colm Moore,
Assistant Attorney General.
   Before Mooney, Presiding Judge, and Hellman, Judge,
and DeVore, Senior Judge.*
______________
   * Hellman, J., vice DeHoog, J. pro tempore.
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 (2022)   221

  HELLMAN, J.
  Affirmed.
222                                                State v. Reyes-Castro

           HELLMAN, J.
         Defendant appeals her judgment of conviction for
first-degree kidnapping, ORS 163.235, and the trial court’s
imposition of restitution to compensate for hospital bills
resulting from the victim’s injuries.1 On appeal, she raises
three assignments of error. In her first two, she assigns
error to the trial court’s denial of her motion for judgment
of acquittal (MJOA), arguing that there was insufficient
evidence that she aided and abetted her codefendant in the
commission of a kidnapping. In her third, she assigns error
to the trial court’s imposition of restitution because she did
not personally cause the victim’s injuries. For the reasons
below, we conclude that none of her claims of error were
preserved for appeal. We further conclude that the trial
court did not plainly err in either respect. Accordingly, we
affirm.
                       BACKGROUND FACTS
         We review the evidence supporting the trial court’s
denial of defendant’s motion for judgment of acquittal and
the trial court’s restitution order in the light most favorable
to the state. State v. Hedgpeth, 

, 

(2019); State v. Howard, 

, 

(2018). We state the facts in accordance with that standard.
         Defendant’s kidnapping conviction2 is the result of
her involvement in the detention of the victim, an acquaintance, at defendant’s home. The victim, A, was a roommate
of defendant’s friend, Max. On a night in March 2018, A and
Max were at a bar together when A got into a fight with
friends and was kicked out of the bar. Max told A that he
was no longer welcome to stay at Max’s home, and A left the
bar alone. He returned to Max’s home, shattered a back door
to gain entry, and caused extensive damage to the home
in the course of gathering his own belongings. A also took
Max’s briefcase and an ID for Max’s friend, José, before leaving to stay at his father-in-law’s home.

    1
      Defendant does not challenge her conviction for coercion, ORS 163.275.
    2
      Defendant was charged with and convicted of two counts of kidnapping.
The trial court merged the guilty verdicts and entered a conviction for one count
of kidnapping.
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        Max returned home early in the morning and discovered the damage that A had caused. He immediately
called defendant and her husband, Mario, who came over
to see the damage. Once there, defendant noted that she
thought A might also have been the person who had broken into her and Mario’s home and stolen $50,000 in cash,
among other items, the previous week.
         Later that morning, A called the number on José’s
ID and asked José if he would facilitate a meeting with Max
so that A could apologize to Max. José agreed and picked
up A and drove him to defendant and Mario’s home. A
had never been to defendant’s home before but waited outside with José until Max and Mario arrived a little after
2:00 p.m. The group then entered Mario’s living room, and
A sat down on a couch. Mario retrieved two bats, gave one to
Max, and the two began beating and punching A, apparently
under the impression that A was the one who had broken
into both of their homes. Mario zip-tied A’s hands behind his
back, tied a rope over his chest, and placed duct tape over
his mouth. After turning on a speaker to cover any noise,
Mario would alternately remove the duct tape and ask A,
“Where are my guns?” and “Where are my drugs?” and then
replace the duct tape and beat A when he did not receive an
answer.
         Defendant had left the home just before 1:00 p.m.
that afternoon to run errands with her daughter and was
not home when the assault began. At some point around
2:30 p.m., Mario called defendant in front of A and placed
her on speakerphone. Mario told defendant that they “have
him here,” and defendant responded that she was “at the
school” and “already [had] the girls” and was “coming over.”
A understood that exchange to mean that defendant was
threateningly implying that she had picked up A’s own
daughters from school.
        Defendant arrived back home around 2:30 p.m.
with her own daughter, who she placed in a back bedroom,
but she did not have A’s daughters. Defendant then joined
the men in the living room, where she also began threatening A. When A would not answer defendant’s questions, Max
and Mario would continue beating him.
224                                               State v. Reyes-Castro

         That continued for two to three hours, at which
point Mario decided to release A rather than kill him after
A promised to pay the group $20,000. As A was leaving,
defendant told him not to call the police because her family
was “military in Mexico.” A called the police and reported
the incident the next day. He was then taken to the hospital,
where he spent four to five days undergoing treatment for
injuries to his arm and knee and suicidal thoughts.
         Defendant, Mario, and Max were jointly charged
with two counts of first-degree kidnapping, ORS 163.235,
and one count each of second-degree assault, ORS 163.175,
third-degree assault, ORS 163.165, first-degree robbery,
ORS 164.415, and coercion, ORS 163.275. Defendant and
Mario proceeded to a joint bench trial; at the time, Max had
absconded and was unable to be located. At the start of trial,
the state dismissed the assault and robbery charges as to
defendant. As to the remaining first-degree kidnapping
charges, the state proceeded against defendant on an aid- and-abet theory, arguing that she had helped plan and commit the kidnapping by threatening A while he was bound
and beaten by Mario.3
         Both defendant and Mario primarily argued at trial
that the events as alleged by A did not occur. Defendant testified that, on the day of the kidnapping, she had been running errands and arrived home with her daughter around
2:30 p.m. to find A and Max talking alone in her living room.
She testified that her husband told her that A was there to
apologize to Max for the damage caused at Max’s home. She
testified that she did not see A bound or tied up, that A was
not injured in any way, and that he was “walking fine.” She
testified that she and her husband left 10 minutes later to
go teach a waltz lesson.
         At the close of the state’s case, defendant and Mario
each moved for a judgment of acquittal. As to the first-degree kidnapping charges, Mario argued that there was

    3
      First-degree kidnapping as defined in ORS 163.235 requires that a person
commit a second-degree kidnapping under ORS 163.225 along with one of the
specific purposes listed in ORS 163.235. Here, the state alleged that defendant
aided and abetted a kidnapping with the purpose of causing physical injury to
the victim, ORS 163.235(1)(c) (Count 1), and with the purpose of terrorizing the
victim or another person, ORS 163.235(1)(d) (Count 2).
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not sufficient evidence to satisfy the elements of first-degree
kidnapping that the victim was “secretly confined,” ORS
163.225,4 or that Mario had the “purpose to terrorize.” ORS
163.235.5 The trial court denied Mario’s MJOA. Defendant
then made her own MJOA, similarly arguing that, even
if the court did “believe the State’s theory that this thing
happened,” there was insufficient evidence to convict her of
the underlying first-degree kidnapping charge where the
evidence did not show that A had either been “secretly confined” or that defendant had directly “terrorized” A.
         Given that A testified that defendant did not arrive
home until he was already detained and did not participate
in the actual assault, the trial court then asked the state
to clarify its kidnapping theory as to defendant. The state
argued that defendant’s threats both on the phone call and
while Max and Mario were beating A showed that she had
participated and aided and abetted in the kidnapping of A.
Defendant did not respond to the state’s aid-and-abet theory. The trial court took defendant’s motion under advisement until the end of the trial.
        At the start of her closing argument, defendant
renewed her MJOA and previous arguments and added that
her argument would “follow through my closing.” The trial
court denied defendant’s motion.
        In her closing argument, defendant again argued
that there was not sufficient evidence to fulfill the “secretly

   4
     ORS 163.225 provides:
       “(1) A person commits the crime of kidnapping in the second degree if,
   with intent to interfere substantially with another’s personal liberty, and
   without consent or legal authority, the person:
       “(a) Takes the person from one place to another; or
       “(b) Secretly confines the person in a place where the person is not likely
   to be found.”
   5
     ORS 163.235 provides:
       “(1) A person commits the crime of kidnapping in the first degree if the
   person violates ORS 163.225 with any of the following purposes:
       “(a) To compel any person to pay or deliver money or property as ransom;
       “(b) To hold the victim as a shield or hostage;
       “(c) To cause physical injury to the victim;
       “(d) To terrorize the victim or another person[.]”
226                                    State v. Reyes-Castro

confined” element of kidnapping, nor sufficient evidence to
support the first-degree kidnapping theory that she had
acted with the purpose to cause injury or terrorize the victim. Her argument came down to a credibility contest, with
defendant arguing that the sequence of events did not occur
as A testified and that his testimony consisted of “inconsistencies and omissions and … exaggerations.” She ultimately argued that she believed Max and A were in a “lovers’ spat” that she “somehow … has got sucked into.”

            The trial court found defendant guilty of both
counts of first-degree kidnapping on an aid-and-abet theory.
The court explained that it “did find the victim’s testimony
credible” and “didn’t find [defendant’s] testimony credible at
all ….”

         On appeal, defendant first assigns error to the trial
court’s denial of her MJOA, arguing that there was insufficient evidence to convict her of first-degree kidnapping on
an aid-and-abet theory. She argues that where the evidence
is insufficient to show that A was “secretly confined” or that
defendant acted with the purpose of terrorizing or causing physical injury to the victim, the evidence was insufficient to show that defendant intended to aid and abet a
kidnapping. Defendant also assigns error to the trial court’s
imposition of restitution to the Oregon Health Plan for A’s
medical bills. Defendant argues that the trial court plainly
erred, because there was no evidence that A’s injuries were
caused by the kidnapping and that they were instead solely
the result of the assault, a crime for which defendant was not
convicted.

         The state argues that defendant’s MJOA did not
preserve her arguments as presented on appeal and that
the trial court did not plainly err in convicting defendant
where the record contains evidence that defendant assisted
in either the planning or commission of the kidnapping. The
state also argues that the trial court did not plainly err in
imposing restitution on defendant where it is not obvious on
this record that the kidnapping with intent to cause physical injury for which defendant was convicted did not cause
the victim’s injuries.
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               PRESERVATION OF ERROR
         Before we reach the merits of whether the trial
court erred in denying defendant’s MJOA as to the kidnapping charges or in imposing restitution, we must first determine whether defendant’s challenges were preserved below.
Peeples v. Lampert, 

, 

 (2008);
State v. Paragon, 

, 

 (2004).
         The preservation rule serves practical purposes.
Requiring parties to first present their challenges to the
trial court gives that court an opportunity to correct any
error at the time it occurs. Peeples, 

. It also
ensures that when the trial court rules on the issue, it has
the benefit of hearing from both sides, because the opposing
side has an opportunity to present its position at the time
the challenge is raised. 

 Finally, if one party believes that
the issue was not correctly resolved and raises it on appeal,
we have the benefit of a fully developed record to consider
when reaching our decision on the issue. 

        Because the preservation rule is a practical one, we
have determined that issues were effectively preserved even
when they were not specifically raised by the parties. State
v. Roberts, 

, 

 (2018). But we
only do so when the issues were actually argued and ruled
on and the purposes of the preservation requirement appear
to have otherwise been served. Id.; see also State v. Walker,

, 

 (2011). We evaluate defendant’s assignments of error under that legal framework.
              DEFENDANT’S MJOA ON THE
                KIDNAPPING CHARGES
         In this case, defendant’s presentation to the trial
court in her MJOA and closing argument did not explicitly
preserve the claim she raises on appeal regarding the insufficiency of evidence on her aiding and abetting conviction.
To understand why, it is necessary to be clear about what
defendant argued below and what she assigns as error to
us.
       In the trial court, defendant took the position that
no crime occurred. Her trial testimony characterized the
228                                    State v. Reyes-Castro

events as a voluntary conversation among herself, Mario,
and A. She aligned herself with her codefendant’s arguments regarding the lack of evidence to prove that a kidnapping took place or that it was committed with the purpose to terrorize or to cause physical injury to the victim. In
her MJOA, she urged the trial court to discount the victim’s
version of events because his testimony was inconsistent,
exaggerated, and untrustworthy. Notably, in her MJOA and
in her closing argument, defendant never argued that, even
if the events occurred the way in which the state alleged,
her minimal involvement in those events was legally insufficient for an aiding and abetting conviction.

         On appeal, defendant’s argument has changed. She
now argues that her minimal participation in the crime was
legally insufficient to hold her criminally liable for aiding
and abetting her husband. Defendant uses her arguments
against her direct liability that she raised at the trial court
as evidence that she lacked the required specific intent
under ORS 161.155(2)(b) to aid and abet her husband’s commission of first-degree kidnapping. But just because defendant raised an MJOA and made those arguments does not
automatically mean that she has preserved her specific
claim for the purposes of appeal. An MJOA must state
the specific theory on which the state’s proof was insufficient. State v. Graham, 

, 

(2012); see also State v. Bistrika, 

, 

, rev den, 

 (2014), cert den, 

(2015) (explaining that the defendant’s argument presented
to the trial court “differed substantively from the theory”
presented on appeal).

         At trial, defendant’s specific theory was that the
state failed to prove a first degree kidnaping because there
was legally insufficient evidence that the victim had been
“secretly confined” under ORS 163.225 or that defendant
had the purpose to terrorize the victim under ORS 163.235.
Even when alerted at both the MJOA hearing and in closing arguments that the state was proceeding against her
on an aiding and abetting theory, defendant never directly
challenged the aiding and abetting theory by raising the
argument that she now presents to us.
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          Defendant argues that her closing argument sufficiently preserved the issue, because trial counsel argued
that her actions did “not make her a participant, an aider
or abettor of any crime.” We disagree. When viewed in context, it is clear that that statement was part of defendant’s
continuing effort to persuade the trial court, as factfinder, to
disbelieve the victim’s version of events. Defendant argued:
      “As I said in the beginning, in my opening statements,
   I would ask the Court to kind of focus on [the victim’s] testimony as far as the inconsistencies and omissions and the
   exaggerations.
       “And I think more importantly, when I look at this case,
   I think this is really kind of a … lovers’ spat, squabble
   between Max and [the victim] that somehow my client has
   got sucked into. And that does not make her a participant,
   an aider or abettor of any crime. It doesn’t make her a participant in a crime.
      “But somebody who is hurt and did a—kind of a violent
   smashing up of Max’s house, … it wouldn’t be a far stretch
   to see how he would want to hurt people that knew Max.
   And this is, I think, what happened. And I think that’s reasonable doubt enough not to find my client involved in this
   kidnapping.”
(Emphasis added.)
         That kind of fact-based credibility argument is distinct from one of legal insufficiency. As we recently held, the
former type of argument “seeks to convince the trial court
that, although the court could find for the opposing party
because that party has produced at least some evidence in
support of its position, the court should not find for the party
because its evidence is not persuasive.” Rookstool-Moden
Realty, LLC v. Gallagher, 

, 

(2020) (emphasis in original). The latter type of argument
“asserts that the trial court cannot return a verdict for the
opposing party because that party has failed to produce
any evidence supporting at least one element of its claim or
defense.” Id.; see also State v. R. W. G., 

, 240-
41, 

 (2017). Although neither Rookstool-Moden
Realty nor R. W. G. were criminal cases, we see no reason
to analyze preservation of claims of insufficiency of the evidence any differently in criminal cases.
230                                   State v. Reyes-Castro

         Defendant further argues that the claim was preserved because the trial court was aware of and ruled on
the MJOA on the aiding and abetting theory. Again, we disagree. Because defendant only challenged the sufficiency of
the evidence as to the elements of the underlying kidnapping charge, the trial court was not aware of any potential
issue regarding the sufficiency of the evidence as to an aid- and-abet theory, nor did the state have an opportunity to
respond. Importantly, as noted above, aiding-and-abetting
liability requires the state to prove a specific intent separate and apart from that of direct liability. See State v.
Kimbrough, 

, 

 (2018) (explaining
that “an individual who assists in or solicits the criminal
conduct that will be committed wholly by someone else does
not, and does not intend to, personally engage, … in the
conduct which will constitute the crime” (internal quotation marks omitted)). By not alerting the trial court or the
state that she was pursuing such a separate and distinct
legal theory, defendant did not satisfy the purposes of issue
preservation.
          To be sure, the trial court considered defendant’s
arguments about her lack of participation in the events.
But that was in the context of determining whether a crime
occurred at all. The trial court was never asked to, nor did
it, rule on a challenge to whether defendant’s minimal participation in the events was legally sufficient for aiding- and-abetting liability. Indeed, such a theory would have run
contrary to defendant’s unwavering position at trial that the
events simply did not occur as the victim claimed they did.
The trial court’s lack of a specific ruling on that theory of
sufficiency differentiates this case from instances where a
court raising an issue sua sponte and subsequently issuing
a specific ruling on the particular argument shows that the
court was independently aware of the legal issue. See State
v. Smith, 

, 

 (2012) (determining that an issue was preserved where the court ruled on
the particular argument after raising the issue sua sponte).
         In sum, defendant is relying on a MJOA supported
by fact-based arguments that the events did not occur at
all, to support a claim on appeal that even if the events
occurred, her minimal participation in them was legally
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insufficient to support an aid-and-abet theory of liability for
kidnapping under ORS 161.155. Under those facts and our
caselaw, defendant’s MJOA failed to preserve her first and
second assignments of error for review.
         Defendant finally argues that even if her argument
challenging the denial of her MJOA is unpreserved, the
trial court plainly erred by not acquitting her of kidnapping
on an aid-and-abet theory. 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, 

, 

 (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., 

, 382 n 6,

 (1991).
         In this case, we begin and end with the first step
in the analysis. Viewed in the light most favorable to the
state, the record contained evidence to support defendant’s
convictions. Defendant testified that she knew of the victim
as Max’s roommate and that, after seeing the damage that
the victim caused to Max’s home, she suspected that he was
the person who had broken into her home the previous week.
There was evidence that defendant and her husband had a
conversation on speakerphone in which her husband said
“we have him” and defendant indicated that she was coming over. The victim testified that, while he was detained
in defendant’s home and was bound, gagged, and beaten,
defendant repeatedly threatened the safety of his daughters and his own life. Where there is evidence in the record
to support a defendant’s conviction, any error is not plain.
State v. Graham, 

, 

 (2012)
(citing State v. Brown, 

, 

 (1990)).
                       RESTITUTION
        As to defendant’s third assignment of error regarding restitution, the record does not reflect that defendant
presented her current causation argument to the trial court
232                                    State v. Reyes-Castro

at the restitution hearing, and defendant does not develop
an argument to explain how it is preserved. We therefore
treat her argument as unpreserved and proceed with our
analysis solely in response to defendant’s request for plain
error review.
         Defendant argues that the trial court erred in ordering her to pay restitution for A’s medical costs because she
did not personally cause the victim’s injuries. She argues
that defendant’s injuries and resulting medical bills were
instead solely the result of the assault for which her husband was convicted. We review whether a trial court has
complied with the requirements for imposing restitution for
errors of law, and we are bound by the trial court’s factual
findings if they are supported by any evidence in the record.
State v. Parsons, 

, 

, rev den,

 (2020). Evidence supporting the restitution award
is viewed in the light most favorable to the state. State v.
Howard, 

, 

 (2018).
         Using the same plain-error standard discussed
above, we conclude that the trial court did not plainly err in
determining that the victim’s medical bills were the result
of the crimes for which defendant was convicted. In State v.
Gerhardt, 

, 

 (2016), the Supreme
Court reaffirmed that “restitution may be awarded under
ORS 137.106 if defendant’s crime was a factual cause of the
victim’s economic damages and those damages were the
reasonably foreseeable consequence of the crime.” Damages
are “reasonably foreseeable” if “a reasonable person in the
defendant’s position would have foreseen that someone in
the victim’s position could reasonably incur damages of the
same general kind that the victim incurred.” State v. Ramos,

, 

 (2016).
         Here, the trial court did not plainly err by ordering
defendant to pay restitution for A’s medical bills. Defendant
was convicted of aiding and abetting a kidnapping committed with the intent to cause physical injury to the victim.
The victim testified that he was hospitalized for at least four
days for injuries he incurred as a result of the kidnapping
and assault, including a broken arm, broken kneecap, and
suicidal thoughts. Even if defendant did not personally beat
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the victim, this record demonstrates that the kidnapping
had the required causal link to the victim’s injuries, and
that those injuries were a “reasonably foreseeable” result of
the kidnapping for which defendant was convicted. See State
v. Jensen, 

, 

 (2021) (determining that even where the defendant did not cause the
victim’s more serious injuries, defendant’s actions “[made]
the victim vulnerable to further harm from his two codefendants”). This is not a case where the state presented no
evidence to support a causal link between a defendant’s convictions and the alleged damages. Cf. Howard, 

 (finding plain error as to the causation requirement
of a restitution order where the state presented no evidence
linking the alleged damages to the defendant’s convictions).
Therefore, the trial court did not plainly err when it ordered
defendant to pay restitution based on the medical bills the
victim incurred as a result of his injuries.
         In sum, defendant’s challenges to the trial court’s
denial of her MJOA and imposition of restitution were both
unpreserved, and the trial court did not plainly err in either
respect.
        Affirmed.