State v. Herfurth

• Decision Date: 29 December 2016
• Docket Number: A153632
• Citation: 283 Or.App. 149,388 P.3d 1104
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jason P. HERFURTH, Defendant-Appellant.
• Court: Oregon Court of Appeals

283 Or.App. 149

388 P.3d 1104

STATE of Oregon, Plaintiff-Respondent,

v.Jason P. HERFURTH, Defendant-Appellant.

A153632

Court of Appeals of Oregon.

Submitted March 16, 2015.

December 29, 2016

Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN, P.J.

Defendant, who was convicted of sex crimes against a teenage victim, MD, appeals, asserting, among other claims, that the trial court erred by ordering him to pay restitution for attorney fees incurred by MD's family and for the costs of a sexual abuse evaluation of MD. We conclude that the trial court did not err in ordering defendant to pay restitution for the attorney fees, but did err in ordering him to pay for the costs of the evaluation. Accordingly, we remand for resentencing and otherwise affirm.¹

We begin with the relevant facts. The state charged defendant with multiple sex crimes. The charges were based on defendant's sexual relationship with MD, which began when MD was 15 years old and lasted for more than one year.

After MD disclosed the relationship to her family and law enforcement, MD's family retained a lawyer to advise them throughout the course of the criminal prosecution. MD also underwent an evaluation at CARES, a child abuse assessment center. The evaluation included an interview that was observed by a police detective, who later searched defendant's house for items MD mentioned during the interview.

The state tried the case to a jury, which found defendant guilty of one count of rape in the third degree, ORS 163.355, and nine counts of sexual abuse in the second degree, ORS 163.425.

After trial, the state requested restitution, including $5,162.50 to be paid to MD's father for attorney fees and $165.57 to be paid to the Criminal Injuries Compensation Account to reimburse it for its payment of a portion of the cost of the CARES evaluation.² At a hearing on the restitution request, the state presented testimony from MD's father and MD's family's attorney. MD's father testified that the attorney helped the family inform MD's friends and their families, who also knew defendant, about defendant's abuse. The attorney explained that those efforts were intended to ensure that MD's family would not be liable for failing to disclose information. MD's father and the attorney also testified that the attorney guided and supported the family throughout the criminal case. Specifically, the attorney helped prepare family members to testify at the trial and accompanied them to closing arguments and sentencing.

Defendant objected to the request for the attorney fees, asserting that restitution is for economic damages and attorney fees are not economic damages. Defendant also objected to the request for restitution for the CARES evaluation, asserting that CARES functions "in a forensic capacity rather than in a treatment capacity," and a court cannot impose restitution to reimburse CARES "for forensic work as part of an investigation." The trial court rejected defendant's arguments and ordered defendant to pay the full amount of the requested restitution.

Defendant appeals, assigning error to the imposition of restitution for the attorney fees and the CARES evaluation. Whether a trial court complied with the requirements for imposing restitution is a question of law, which we review for errors of law. State v. Morgan , 274 Or.App. 161, 164, 359 P.3d 1242 (2015).

"Restitution" means "payment of economic damages to a victim." ORS 137.103(3).³ A trial court is required to order a defendant to pay restitution to a victim in the full amount of the victim's economic damages, unless the victim consents to a lesser amount. ORS 137.106(1).⁴ For the purposes of the restitution statutes, the term "victim" includes:

"(a) The person or decedent against whom the defendant committed the criminal offense, if the court determines that the person or decedent has suffered or did suffer economic damages as a result of the offense.

"(b) Any person not described in paragraph (a) of this subsection whom the court determines has suffered economic damages as a result of the defendant's criminal activities.

"(c) The Criminal Injuries Compensation Account, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.

"(d) An insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this section."

The term "economic damages" "[h]as the meaning given that term in ORS 31.710, except that ‘economic damages' does not include future impairment of earning capacity[.]" ORS 137.103(2). In turn, ORS 31.710(2)(a) provides:

" ‘Economic damages' means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less."

To summarize, the restitution statutes establish that (1) a trial court is required to order a defendant to pay a victim restitution for the full amount of the victim's economic damages, unless the victim consents to a lesser amount; (2) the term "victim" includes persons who have suffered economic damages as a result of a defendant's criminal activities, as well as the Criminal Injuries Compensation Account, if it has expended monies on behalf of the person against whom the defendant committed the criminal offense, if that person has suffered economic damages; and (3) "economic damages" are "objectively verifiable monetary losses."

In addition, as the Supreme Court recently explained in State v. Ramos , 358 Or. 581, 590, 368 P.3d 446 (2016), for the purposes of the restitution statutes, "economic damages" are objectively verifiable out-of-pocket losses that a person could recover against the defendant in a civil action arising out of the defendant's criminal activities.⁵

In this case, defendant challenges the award of restitution to MD's father for the attorney fees. Defendant does not dispute that MD's father incurred the attorney fees as a result of defendant's criminal activity, but he does dispute that the attorney fees are "economic damages." Defendant argues that the attorney fees are not economic damages because "attorney fees are not damages when sought in the same action in which the services are rendered." Defendant's argument is based on "the American Rule," under which " ‘[e]ach litigant pays his own attorney fees, win or lose, unless a statute or contract provides otherwise.’ " Ramos , 358 Or. at 600, 368 P.3d 446 (quoting Baker Botts L.L.P. v. ASARCO LLC , 573 U.S. ––––, 135 S.Ct. 2158, 2164, 192 L.Ed.2d 208 (2015) ). As we understand it, defendant's argument is that, because, for the purposes of the restitution statutes, "economic damages" are those that could be recovered against the defendant in a civil action, and, under the American Rule, "economic damages" do not include attorney fees incurred in the action itself, MD's "economic damages" in this criminal case do not include the attorney fees her family incurred in the criminal case.

The Supreme Court rejected that argument in Ramos , which was decided after the parties filed their briefs in this case. In Ramos , the court held that, even assuming that the American Rule applies by analogy to restitution hearings, "that rule would not preclude a victim from recovering attorney fees and costs that the victim incurred as a result of the victim's involvement in the underlying criminal prosecution." 358 Or. at 602, 368 P.3d 446. The court explained that, in a tort action against a defendant for damages, the American Rule does not preclude a plaintiff from recovering fees and costs incurred in a separate proceeding and, therefore, the rule does not preclude a plaintiff, who brings a tort action against a defendant for criminal activities, from recovering attorney fees incurred in connection with the separate criminal prosecution of the defendant. Id . at 601–02, 368 P.3d 446. The court further explained that "[a] victim in a restitution proceeding is not required to bring a separate tort action to obtain an award of damages, and therefore the prosecution of the defendant and the award of damages occur in the same criminal proceeding[,]" and

"the combined procedure does not deprive the state from seeking, on behalf of the victim, the same damages that the victim could have obtained if the victim had filed a separate action, and that those damages may include attorney fees and litigation costs that the victim incurred in the underlying criminal prosecution."

Id . at 602–03, 368 P.3d 446. See also State v. Kirschner , 358 Or. 605, 610, 368 P.3d 21 (2016) (the American Rule did not preclude the trial court from awarding restitution for wages the victim lost in order to testify at defendant's restitution hearing in response to the state's subpoena); State v. Mahoney , 115 Or.App. 440, 443, 838 P.2d 1100 (1992), adh'd to as modified on recons , 118 Or.App. 1, 846 P.2d 413, rev. den. , 316 Or. 142, 852 P.2d 838 (1993) (the trial court did not err in ordering the defendant, who was convicted of sexual abuse in the second degree, to pay restitution to the victim, who he supervised at work, for attorney fees she incurred in seeking "legal advice to help her deal with defendant and her employer and to work toward an...