State v. Smith

No. 102             February 12, 2025                817

   This is a nonprecedential memorandum opinion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.
          JALEN BAJAJUAN NAZEDEKY SMITH,
             aka Jalen Bajajuan Nazede Smith,
                   Defendant-Appellant.
             Washington County Circuit Court
                   22CR27737; A180649

  Erik M. Bucher, Judge.
  Argued and submitted December 19, 2024.
   David Ferry, Deputy Public Defender, argued the cause
for appellant. On the brief was John Evans, Deputy Public
Defender, Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Oregon Public Defense Commission.
   Adam Holbrook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, Pagán, Judge, and
Armstrong, Senior Judge.
  PAGÁN, J.
  Affirmed.
818                                            State v. Smith

        PAGÁN, J.
         Defendant pleaded guilty to three counts of stalking,
ORS 163.732(2)(a), and three counts of harassment, ORS
166.065(4). The trial court sentenced defendant to three years
of probation and ordered him to pay a $5,000 compensatory
fine. After a contested hearing, the trial court ordered defendant to pay additional restitution of over $22,000 to three
victims consisting primarily of attorney fees and lost wages.
On appeal, in four assignments of error, defendant challenges
the restitution awards. We conclude that defendant failed to
preserve the issue of whether the American Rule bars restitution, and the trial court did not plainly err in making the
awards. Given defendant’s conduct, which included repeatedly
violating a no-contact order and evading service of process,
it was reasonably foreseeable that the victims would incur
attorney fees and miss work to obtain restraining orders and
attend hearings. We therefore affirm the supplemental judgment awarding restitution to the three victims.
         We review the trial court’s imposition of restitution
for legal error, bound by that court’s factual findings that
are supported by any evidence in the record. State v. Lobue,

, 

, rev den, 

 (2020).
         The victims are defendant’s ex-girlfriend, K, her
mother, M, and her father, H. After defendant repeatedly violated a no-contact order, the victims sought civil
restraining orders. K obtained a temporary Family Abuse
and Prevention Act (FAPA) restraining order, and her parents obtained a temporary stalking protective order (SPO).
Because defendant evaded service, the victims hired an
attorney. With the attorney’s help, they effected alternative
service and obtained restraining orders against defendant.
         After defendant pleaded guilty to stalking and
harassment, the state sought restitution for the attorney
fees and costs that the victims incurred to obtain the protective orders. In a supplemental judgment, the trial court
awarded restitution for legal fees to K and H, and for lost
wages to M. Defendant appeals those awards.
        ORS 137.106(1)(a) requires restitution when a person is convicted of a crime that has resulted in economic
Nonprecedential Memo Op: 

 (2025)            819

damages. Restitution is “informed by principles enunciated
in civil cases concerning recoverable economic damages.”
State v. Islam, 

, 

 (2016). Under
the American Rule, a party in a civil action generally cannot recover attorney fees incurred in that proceeding, unless
prescribed by statute or contract. State v. Ramos, 

, 

 (2016). However, that rule does not bar a
claim for attorney fees incurred in a third-party action. 

. At the same time, courts are not permitted to
award restitution for attorney fees that a victim chooses to
incur in a criminal case to protect their interest in obtaining restitution. State v. Fox, 

, 

(2022).
         Preliminarily, we consider whether defendant preserved the arguments he makes on appeal. In his first two
assignments of error, defendant argues that the trial court
erred in awarding restitution for attorney fees associated
with obtaining protective orders. Defendant acknowledges
that petitioners in SPO and FAPA proceedings may recover
attorney fees, but he argues that the victims did not comply with the relevant statutory requirements or ORCP 68.
However, at the restitution hearing, defendant did not mention the American Rule, ORCP 68, or the statutory requirements for an award of attorney fees in SPO or FAPA cases.
Instead, defendant focused on whether it was reasonably
foreseeable that the victims would incur substantial attorney fees. That argument did not preserve the issue defendant raises on appeal. See State v. Skotland, 

, 

 (2024) (“[P]reservation requires a party to
explain its objection clearly enough for the opposing party,
and the trial court, to understand the issue and either avoid
an error, or correct an error if one has occurred.”).
         In the alternative, defendant argues that the trial
court plainly erred in awarding attorney fees. An error is
“plain” when it is an error of law, is obvious and not reasonably in dispute, and is apparent on the record without having
to choose among competing inferences. State v. Vanornum,

, 

 (2013). It is a matter of discretion whether we will correct a plain error. State v. Gornick,

, 

 (2006).
820                                           State v. Smith

         Here, there was no plain error. It is not obvious or
beyond reasonable dispute that the trial court could not
award the victims the attorney fees that they incurred seeking protective orders against defendant. See Ramos, 

 (observing that “there are instances in which attorney fees and litigation costs incurred in separate litigation
may be recovered as an element of a plaintiff’s damages”).
In the instant case, the attorney fees related to separate
litigation—the SPO and FAPA proceedings—so it was not
plain error to award restitution for those fees. See State v.
Gerhardt, 

, 

 (2016) (upholding
an award of restitution for attorney fees that the victim
incurred to enforce a no-contact order and to obtain a permanent protective order).
        The trial court also found that defendant’s conduct
made it foreseeable that the victims would seek the help of
an attorney, especially when defendant’s evasion of service
prolonged and complicated the SPO and FAPA proceedings.
Those findings are supported by the record. See Gerhardt,

 (noting that foreseeability “ordinarily poses
a question of fact”). It was reasonably foreseeable that
defendant’s conduct—which included making death threats
against K and her family and breaking windows at their
home—would result in the victims incurring attorney fees
in an effort to protect themselves. See Ramos, 

. We therefore reject defendant’s first two assignments of
error.
          In his third and fourth assignments, defendant
argues that the trial court erred in awarding restitution for
lost wages to M. The third assignment concerns lost wages
associated with obtaining protective orders, and the fourth
assignment relates to lost wages associated with attending
hearings. For the reasons explained above, defendant did
not preserve the argument that the American Rule precludes such an award, nor can we say that it was plain error
to award restitution for lost wages. See State v. Kirschner,

, 

 (2016) (upholding restitution
for lost wages associated with a hearing that the victim was
required to attend). In addition, ORS 30.866(4)(c) expressly
provides that a petitioner in an SPO case may recover not
Nonprecedential Memo Op: 

 (2025)            821

only reasonable attorney fees but also reasonable costs.
Thus, it is not obvious or beyond reasonable dispute that
the trial court erred in awarding lost wages to M to obtain a
protective order against defendant.
         With respect to defendant’s argument that it was not
reasonably foreseeable that M would miss work as a result
of his criminal conduct, the record supports the trial court’s
findings that M was required to do so to assist her daughter obtain a restraining order, and M was also required to
obtain her own protective order. For the hearings that M
attended, the trial court did not award her lost wages for all
of them, but it did for five hearings that involved defendant’s
potential release from custody, an issue on which M had a
right to be heard. See State v. Skeen, 

,

 (2021) (affirming award of lost wages for two
family members who gave victim impact statements at the
defendant’s sentencing hearing). It was reasonably foreseeable that M would incur those damages. See Ramos, 

. In addition, for most of the hearings, the trial court
awarded M only half of the requested amounts. We therefore
reject defendant’s third and fourth assignments of error.
        Affirmed.