State v. Tejeda-Serrano

                                       656

                Submitted August 30, affirmed October 18, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  ALFREDO TEJEDA-SERRANO,
                      Defendant-Appellant.
                   Marion County Circuit Court
                      20CR68886; A177070
                                   

     Defendant appeals an amended judgment imposing criminal restitution.
Defendant pleaded guilty to one count of first-degree arson, ORS 164.325, after
she set fire to and damaged a home in Salem. The homeowner’s insurance company compensated the homeowner for lost rent, and the trial court ordered restitution to compensate the insurance company for those costs. Defendant argues
that the trial court erred in awarding compensation for lost rent in the amount
of $6,210 because the state failed to present sufficient evidence that that amount
was reasonable. Defendant contends that is so because the state did not introduce
evidence of the rent that the homeowner had actually charged or evidence of rent
for comparable properties. Held: The Court of Appeals determined that the state
did introduce evidence of the rent that the homeowner had actually charged. The
court also determined that the factfinder could draw upon common knowledge—
in addition to information about the characteristics of the property—to assess
the reasonableness of a given monthly residential rental rate. Thus, the court
concluded that the evidence in the record was sufficient for the factfinder to determine that the amount paid for lost rent was reasonable. Accordingly, the trial
court did not err when it awarded restitution for lost rent in the amount of $6,210.
    Affirmed.



    Janet A. Klapstein, Judge pro tempore.
    Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
    TOOKEY, P. J.
    Affirmed.
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        TOOKEY, P. J.
         Defendant appeals an amended judgment imposing
criminal restitution. Defendant argues that the trial court
erred in awarding compensation for lost rent in the amount
of $6,210 on the ground that the state failed to present sufficient evidence that that amount was reasonable. We conclude that the record contains sufficient evidence for the trial
court to determine that $6,210 was reasonable. Therefore,
we affirm.
         Defendant pleaded guilty to one count of first-degree arson, ORS 164.325, after she set fire to and damaged a home in Salem on December 20, 2020. Three days
after the fire, a fire claim representative for State Farm
Insurance inspected the property and prepared an estimate
of the damages. The fire claim representative’s estimate
included a detailed floor plan of the house; itemization of
observed damages and estimated repair costs; and information about lost rent for the period during which the house
would be under repair. State Farm ultimately compensated
the homeowner for losses caused by the fire, including lost
rental income.
         On July 12, 2021, the trial court entered a judgment
of conviction, and on September 7, 2021, the state moved to
amend the judgment to include restitution in favor of State
Farm. At the restitution hearing, the State Farm fire claim
representative testified as to the methodology he used to
estimate the cost of the repairs, explaining that State Farm
routinely uses a computer program to help claim representatives estimate dollar values using data about local markets. The fire claim representative did not specifically testify as to how State Farm arrived at the lost rent estimate,
but the state offered the State Farm-generated “Summary
of Loss” form into evidence, and the trial court admitted
it. The “Summary of Loss” form contains a section entitled
“Coverage C – Lost Rent.” In that section, the form indicates
State Farm’s “Limit of Liability” as “actual,” and the section
contains a table showing the rent calculation using a rate
of $1,150 per month, prorated for 11 days of December 2020
and applied in full to January through May of 2021, for a
total amount of $6,210. The “Summary of Loss” form also
658                                          State v. Tejeda-Serrano

includes a detailed description of the property including
dimensions and features of the structure: The property in
question is a 1,610 square foot, four-bedroom, two-bathroom
home in Salem. The state also offered—and the trial court
admitted—photos showing the damage that the fire caused
to the property. The trial court awarded restitution in the full
amount requested by the state, $80,686.86, which included
$6,210.00 for five months and 11 days of lost rental income
for which State Farm had compensated the homeowner.
         On appeal, defendant challenges only the $6,210 that
the trial court imposed to compensate State Farm for its payment to the homeowner for the lost rent. Defendant contends
that the state failed to offer sufficient evidence to determine
that that amount was reasonable. In defendant’s view, that
is so because the state failed to present evidence as to what
the homeowner had been charging for rent prior to the fire
or evidence “that the rent for comparable properties in the
area was similar.” Defendant contends that the “entirety of
the evidence is that State Farm paid [$6,210] to the property
owner.”
           “In reviewing a restitution award, we examine the
trial court’s legal conclusions for legal error and its factual
findings for any evidence.” State v. Skeen, 

, 

 (2021) (internal citations omitted). “We
review the evidence supporting the trial court’s restitution
order in the light most favorable to the state.” 

 (internal
quotations omitted); see also State v. Aguirre-Rodriguez, 

, 

 (2021). Under ORS 137.106(1)(a)
(2020), amended by Or Laws 2022, ch 57, § 1,1 “a key ‘purpose
of … criminal restitution is to make a victim whole.’ ” State
v. Wagnon, 

, 

 (2023) (quoting
State v. Islam, 

, 

 (2016)). The
state bears the burden of providing sufficient evidence to
support the reasonableness of the restitution award. 

 (citing ORS 137.106(1)(a)). The issue in this case is whether the
state provided sufficient evidence for a rational factfinder
to have determined that the $6,210 in lost rent that State
Farm paid to the homeowner was reasonable.

    1
      ORS 137.106 was amended in 2022. We cite the version of the statute in
effect at the time of the hearing. Wagnon, 

 n 2.
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          As noted, defendant argues that the evidentiary
record was insufficient for the trial court to determine that
the amount requested for lost rental income was reasonable,
because there was no evidence of what the homeowner had
been charging to rent the premises. On that issue, the state
contends that the word “actual,” on the “Limit of Liability”
line in the “Coverage C – Lost Rent” section of the “Summary
of Loss” form, means that State Farm compensated the
homeowner based on the actual rent the homeowner had
previously received as rent for the home. We think it is a
reasonable inference that the word “actual” in this context
means that State Farm’s liability to the homeowner was
limited by the actual rent that the homeowner had previously received as rent for the property. The calculations set
forth on the form support that inference by applying a rate of
$1,150 per month to a time period of five months and 11 days
to arrive at the total figure of $6,210 for lost rent. In our
view, that is sufficient for a factfinder to determine that
State Farm reimbursed the homeowner for lost rent in an
amount equal to that which the homeowner had previously
received as rent for the home.
        Defendant also argues that the evidentiary record
was insufficient for the trial court to determine that the
amount requested for lost rental income was reasonable
because the state did not present evidence of “the rent for
comparable properties.” We have never addressed whether
the state must present evidence of the rent for comparable
properties to establish the reasonableness of a restitution
award for lost rent. However, our past decisions concerning the reasonableness of restitution awards for medical
expenses provide useful guidance on that question.
          When the state seeks restitution for paid medical
expenses—as with all types of expenses—it must show that
the charges were reasonable. Wagnon, 

 (citing State v. Gastiaburu, 

, 

 (2022)). A charge “is reasonable if it is at (or below) the
market rate for the services, drugs, or other medical items
provided.” 

 at 19 (quoting State v. Workman, 

, 

 (2019)). The “submission of a hospital bill, without more, is insufficient proof for recovery of
660                                              State v. Tejeda-Serrano

‘reasonable’ hospital or medical services” and “[s]ome additional testimony or evidence is required to support the reasonableness of the bill[.]” State v. McClelland, 

, 

 (2016). However, in some situations,
“it is appropriate for a factfinder to rely on common sense
and practical experience” to assess reasonableness. State v.
Aguirre-Rodriquez, 

, 

 (2019),
rev’d on other grounds, 

 (2021). “[A] factfinder’s
common knowledge can supply the bridge to a factfinder’s
reasonable inference.” State v. Hedgpeth, 

,

 (2019) (so noting in the context of blood alcohol
concentration).
         Here, the state argues, and we agree, that the residential rental market is an area in which a factfinder’s common knowledge may appropriately inform the factfinder’s
assessment of reasonableness.2 In Wagnon, we distinguished
medical copays from medical expenses with regard to the
extent of evidence needed to determine reasonableness. We
made that distinction on the basis that while “copays are
a standard feature of health insurance,” and “the rates for
copays are a matter of common knowledge,” that is not the
same for charges for other medical expenses. Wagnon, 

. In our view, rent payments are more similar to
medical copays than they are to other medical expenses; just
as people who pay copays do so on their own behalf, those
in the rental market also typically pay their rent on their
own behalf. Cf. Wagnon, 

 (“Unlike other
charges related to medical services, the copay is the amount
that is typically paid by the individual consumer.”). And,
just as many people have experience paying copays, many
people have experience paying rent. So, in cases where the
state seeks restitution for lost rent, we believe the factfinder
can draw upon “common knowledge” or “common sense and
practical experience” to assess the reasonableness of a given
monthly residential rental rate.
     2
       The state also argues that State Farm’s estimate of lost rent is per se reasonable because State Farm has a market incentive to reimburse the insured
based on fair rental value of the insured’s property. In view of our analysis set
forth above, we need not address that specific argument in this case. See State v.
Gastiaburu, 

, 

 (2022) (The fact that an “institutional player” might have a business incentive against paying an unreasonable
bill is insufficient to support the reasonableness of said bill.).
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          Having addressed defendant’s arguments, we conclude that, in this case, the evidence in the record was sufficient for the factfinder to determine that the restitution
that the state requested to cover State Farm’s payment for
lost rent was reasonable. The factfinder had access to the
“Coverage C – Lost Rent” section of the “Summary of Loss”
form, from which the factfinder could reasonably infer the
amount of rent the homeowner had previously received. The
factfinder also had evidence from the State Farm fire claim
representative that the property in question was a 1,610
square foot, four-bedroom, two-bathroom home in Salem,
and that State Farm had used this information to determine the value of losses to the home. The “Summary of Loss”
form and the fire claim representative’s testimony, coupled
with the factfinder’s “common knowledge” or “common sense
and practical experience” regarding residential rental rates,
amounted to sufficient evidence to support the factfinder’s
determination that $1,150 per month was reasonable rent
and, thus, that the total restitution award for lost rent in the
amount of $6,210 was reasonable.
         Therefore, we conclude that the trial court did not
err when it awarded restitution to State Farm in the amount
of $6,210 to compensate for the lost rent that State Farm
paid to the homeowner.
        Affirmed.