373
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted August 23; remanded for resentencing, otherwise affirmed
October 12, petition for review denied December 29, 2022 (370 Or 694)
STATE OF OREGON,
Plaintiff-Respondent,
v.
KENNETH KETCHEM,
Defendant-Appellant.
Marion County Circuit Court
19CR05609; A175021
Thomas M. Hart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Remanded for resentencing; otherwise affirmed.
374 State v. Ketchem
PAGÁN, J.
In this criminal case, defendant appeals from a
judgment convicting him of second-degree burglary, ORS
164.215 (Count 1); second-degree criminal trespass, ORS
164.245 (Count 2); fourth-degree assault, ORS 163.160(2)
(Count 3); menacing, ORS 163.190 (Count 4); first-degree
burglary, ORS 164.225 (Count 5); first-degree arson, ORS
164.325 (Count 7); and first-degree animal abuse, ORS
167.320(3) (Count 10). Defendant raises 10 assignments of
error. In his first three assignments, defendant contends
that a police detective was not qualified to testify as a fire
investigation expert, and that the trial court erred in admitting the detective’s opinions regarding whether devices used
by police caused a fire. In his fourth assignment of error,
defendant claims that the jury’s verdict was inconsistent on
two counts, and thus he is entitled to a new trial. In his fifth
assignment of error, defendant contends that the trial court
erred by failing to shift his criminal history score to “I” on
Count 5. In the sixth and seventh assignments, defendant
claims that the trial court erred in imposing a sentence on
Count 5 using a criminal history score incorporating the
convictions on Counts 3 and 4. Finally, in his eighth, ninth,
and tenth assignments of error, defendant contends that the
restitution award for the costs of repairs, replacement, and
loss of use of property was not reasonable.
As explained below, we conclude that defendant did
not preserve his fourth assignment of error and we decline
to address it as plain error. Regarding the fifth assignment
of error, the state concedes that the trial court erred in failing to “shift-to-I” before imposing the sentence on Count 5.
We agree with and accept the state’s concession which obviates the need to address the sixth and seventh assignments
of error. We further conclude that the trial court did not err
in admitting the detective’s testimony and it did not err in
awarding restitution, thus disposing of defendant’s remaining assignments of error. We remand for resentencing and
otherwise affirm.
A detailed discussion of the facts of this case would
not benefit the bench, bar, or public. We begin with the challenges to the expert testimony. Defendant asserts that the
Nonprecedential Memo Op: 322 Or App 373 (2022) 375
trial court erred in determining that a police detective was
qualified to testify as a fire investigation expert. The detective was present during part of the incident, which involved
defendant entering a house in Salem, and the house being
subsequently damaged in a fire. Defendant does not dispute
that the fire began inside the house. While attempting to
take defendant into custody, police used “flash bang” devices
and canisters of CS (tear) gas. The detective opined that
those devices did not cause or contribute to the fire because
the “flash bang” devices were used outside the house and
police used the CS canisters after the fire had already
started.
We conclude that the detective’s specific testimony
was not scientific because it was based in part on the detective’s observations, and, in arriving at those opinions, the
detective did not rely on principles of science or a scientifically validated method. See OEC 702; State v. Evensen, 298
Or App 294, 311-17,
447 P3d 23, rev den,
366 Or 64 (2019)
(analyzing when expert testimony is scientific and determining jury would not have regarded detective’s testimony
as scientific). In addition, we conclude that the detective was
qualified to offer opinions about whether the devices caused
the fire based on his training and experience. See State
v. Rivera-Ortiz,
288 Or App 284, 293,
406 P3d 73 (2017),
rev den,
362 Or 665 (2018) (officer’s training and experience
supported the specific opinions provided). It was not error to
admit the detective’s testimony.
In his fourth assignment of error, defendant claims
that the jury’s verdict was inconsistent as to two counts. We
do not address that argument because defendant did not preserve it below and we decline to address it as plain error. See
State v. Zweigart, 344 Or 619, 630-31,
188 P3d 242 (2008),
cert den,
558 US 829 (2009) (noting that verdicts might have
been inconsistent but the defendant made no objection when
the jury was present and failed to invoke statutory procedure to obtain clarification from the jury; rejecting plain
error review); State v. Bentley,
301 Or App 347, 354,
456
P3d 651 (2019) (“[D]efendant did not preserve an argument
below that the trial court’s verdict was inconsistent, and,
thus, we do not address it.”).
376 State v. Ketchem
In his eighth, ninth, and tenth assignments of
error, defendant challenges the trial court’s imposition of
$434,866.83 in restitution. Whether a restitution amount is
reasonable is a challenge to the sufficiency of the evidence.
State v. Aguirre-Rodriguez, 367 Or 614, 620,
482 P3d 62
(2021). “We review questions of the sufficiency of the evidence by examining the evidence in the light most favorable to the state, as the party that prevailed in the trial
court.”
Id. Regarding the costs for repairs to the house damaged by the fire, the court was provided photographs of the
substantial damage. An experienced insurance adjuster
testified regarding her assessment and supervision of the
repairs, and she visited the property several times. The
insurance adjuster explained that, based on an estimate
for the repairs, she had discussions with the general manager or project manager and others before agreeing to the
amount. Following the adjuster’s visits and estimates with
contractors, the insurance company paid for the repairs.
Considered together, that evidence supports an inference
that the costs for repairs were reasonable. See
id. at 623
(detailed repair estimate and photographs of damage “sufficient to permit a reasonable factfinder to infer that the repair
costs were a reflection of the relevant market rate and, thus,
reasonable”).
Defendant challenges whether the restitution amounts
for replacement items and temporary housing were reasonable. The state contends that that argument was not preserved. We conclude otherwise. Defendant objected to the
state’s request for the total amount of restitution, which
included payment for replacement items and temporary
housing. That objection was sufficient to preserve his challenge to all aspects of the restitution award. State v. Wirfs,
250 Or App 269, 273,
281 P3d 616, rev den,
352 Or 378 (2012)
(“Whether a party adequately presented a contention to the
trial court varies depending on the nature of the claim or
argument.”).
The evidence for the cost of replacement items
included photographs of damage to items inside the house.
The insurance adjuster was involved in refurbishing the
home, and the insurance company paid less for replacement
Nonprecedential Memo Op: 322 Or App 373 (2022) 377
items than the amount stated by one of the victims, who
testified regarding the value of her destroyed art and
supplies. Regarding loss of use, there was evidence that
the fire rendered the house uninhabitable. The insurance adjuster moved some victims from a hotel to a rental
property and she made efforts to ensure that the repairs
to the house occurred in “a timely manner.” That evidence
was sufficient to support a conclusion that the restitution
amounts for replacement items and temporary housing were
reasonable.
Defendant’s fifth, sixth, and seventh assignments
of error concern sentencing. Defendant asserts, and the
state concedes, that the trial court erred in failing to apply
the “shift to I” rule when sentencing defendant on Count 5.
As we have explained, “when multiple consecutive sentences
are imposed for crimes committed during the same criminal episode, only the primary offense is sentenced based on
the offender’s true criminal history; the additional offenses
are classified under column I as required by OAR 213-012-
0020(2)(a)(B).” State v. Decleve, 299 Or App 528, 531,
450
P3d 999 (2019). Here, the state concedes that the crimes
in Counts 5 and 7 were committed during the same criminal episode. The conviction for arson in Count 7 was the
primary offense. OAR 213-003-0001(17) (defining “primary offense” in sentencing rules). Thus, when sentencing
defendant on Count 5, the trial court should have shifted
defendant’s criminal history score to “I.” OAR 213-012-
0020(2)(a)(A) (explaining application of “shift to I” rule).
The trial court failed to do so. Therefore, we remand for
resentencing.
In his sixth and seventh assignments of error, defendant makes the alternative argument that the trial court
erred in reconstituting his criminal history score on Count 5
using the convictions from Counts 3 and 4. The state does
not concede that the crimes in Counts 3 and 4 occurred
during the same criminal episode as those in Counts 5 and 7.
However, applying the “shift to I” rule on Count 5 means
that the sentence for that crime will be “calculated as though
the defendant had no prior criminal history.” State v. Worth,
274 Or App 1, 26,
360 P3d 536 (2015), rev den,
359 Or 667
378 State v. Ketchem
(2016) (internal quotation marks omitted). Thus, as a result
of the remand for resentencing, we do not need to address
the sixth and seventh assignments of error.
Remanded for resentencing; otherwise affirmed.
