602 October 23, 2024 No. 749
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMIE LORRAINE ROCHA,
Defendant-Appellant.
Washington County Circuit Court
21CR54643; A179850
Eric Butterfield, Judge.
Submitted July 16, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 335 Or App 602 (2024) 603
ORTEGA, P. J.
Defendant was convicted of failure to perform the
duties of a driver when property is damaged, ORS 811.700.
She appeals a supplemental judgment awarding the victim
$1,500 in restitution for two days’ lost wages. The victim
had been subpoenaed for the restitution hearing and an earlier court date and arranged to miss work on those days,
but defendant argues that she did not cause the victim’s lost
wages. The state responds that defendant did not preserve
her arguments and has not demonstrated a plain error and
that, regardless, the court did not err in awarding restitution. We conclude that the claim of error is unpreserved and
does not qualify as plain error and, accordingly, we affirm.1
We review restitution awards for errors of law, and
we are bound by the trial court’s factual findings if there
is any evidence to support them. State v. McClelland, 278
Or App 138, 141,
372 P3d 614, rev den,
360 Or 423 (2016).
The relevant facts are largely procedural and
undisputed. Defendant crashed her car into the victim’s
parked pickup truck, causing damage. At the restitution
hearing, the state presented the victim’s request for $9,100
in lost wages. The victim testified that he had arranged for
the damaged truck to be repaired and was without it for
11 days, during which he did not go to his job in Vancouver
from his home in Hillsboro. The victim did not rent a car or
use a rideshare service like Uber or Lyft because he would
have had to pay out of pocket and be reimbursed and did not
consider the rideshare services to be sufficiently reliable.
In addition, the victim requested days off from work on the
dates of two different court hearings, as well as the date of
the restitution hearing. He testified that he had been subpoenaed to at least one of the hearing dates and also the
1
As we will explain, part of defendant’s argument on appeal is preserved,
but it is a part that we need not address because there was more than one possible basis for the trial court’s ruling. To prevail, defendant had to show that all of
the possible bases for the ruling were erroneous. Because the court’s restitution
award could have been based on facts and conclusions that defendant has not
established as erroneous, we need not address the other basis. National Union
Fire Ins. Co. v. Starplex Corp., 220 Or App 560, 580 n 5,
188 P3d 332, rev den,
345 Or 317 &
345 Or 417 (2008) (“It is axiomatic that, when a trial court bases
a decision on multiple grounds, an appellant may prevail on appeal only after
demonstrating that all of the bases for the court’s decision were erroneous.”).
604 State v. Rocha
restitution hearing. He produced a pay stub and testified
that his wages for one day of work were typically about $750.
Defendant argued at the restitution hearing that
the court could not award the victim lost wages for missing
work while his car was being repaired, because he chose not
to rent a car or use a rideshare service and that he had a
duty to mitigate his damages. Defendant argued that the
victim’s choice not to go to work caused his damages rather
than defendant’s criminal conduct.
In response, the state points out that the trial court
could have based its restitution award on lost pay for two of
the workdays that the victim missed because he was subpoenaed to court. The state points out that defendant did not
preserve an objection to restitution on that basis before the
trial court. In reply, defendant argues that the issue was preserved and, alternatively, asks us to review for plain error.
At the hearing, the victim testified on direct examination that he had requested three days off work to attend
two prior hearings and the restitution hearing, and that he
had been subpoenaed for at least one of the two prior hearings. The victim said that the two prior hearings “got cancelled for some reason.” Defendant did not follow up on that
testimony on cross-examination of the victim.
The trial court ultimately ordered defendant to
pay the victim $1,500 in restitution. It did not include any
explanation of how it arrived at that figure. Defendant has
assigned error to that restitution award, which amounts to
two days’ worth of lost pay.
On appeal, she points out that each of the two preceding court dates were cancelled 11 days in advance of the
hearing date. One can discern from the trial court file that
it was the trial court that cancelled those hearings; consequently, defendant posits, the court was aware that they
had been cancelled and how far in advance that happened.
Defendant further argues that, because it was the state’s
burden to establish that the victim suffered economic damages, any gaps in the record accrue to defendant’s benefit.
Nonprecedential Memo Op: 335 Or App 602 (2024) 605
We are not persuaded. We first conclude that defendant did not preserve the challenge that she raises on appeal
as to whether the record supports that the victim missed two
days of work because he had arranged to take them off to
attend court hearings. We also conclude that the claim of error
does not satisfy the requirements for plain error review. Ailes
v. Portland Meadows, Inc., 312 Or 376, 381-82,
823 P2d 956
(1991) (establishing the requirements for plain error, including
that “the reviewing court must not need to go outside the record
to identify the error or choose between competing inferences,
and the facts constituting the error must be irrefutable”).
Defendant is correct that the burden of establishing the damages rested with the state—but the state (on
behalf of the victim) and the trial court did not have notice
of the argument that defendant raises for the first time on
appeal. Had defendant raised the issue, the state potentially could have adduced further evidence concerning when
the victim learned that the court dates had been rescheduled, whether he could rescind his request to take time off
work to attend those hearings, and with how much notice.
In addition, accepting defendant’s assertion that the trial
court would have known how much notice the victim had
when the court dates were cancelled or rescheduled would
require us to choose one possible inference from the record
and reject others, which is not consistent with our standard
of review. The court may have remembered at the October
restitution hearing what action it had taken during the first
half of July, or it may not have had such specific recollection
as to the rescheduling of those prior hearings. The court
may well have needed defendant to bring the issue to its
attention in order to further consider the victim’s testimony
that he missed work because he requested those days off.
Having concluded that the argument concerning
the victim’s scheduled court appearances is unpreserved, we
further conclude that any error is not plain. Ailes, 312 Or at
381-82. In particular, reviewing defendant’s challenge would
require choosing between competing inferences and going
outside the record, or stated differently, it would involve resolution of disputed issues of fact.
Affirmed.
