State v. McClelland, 13CR1432

• Decision Date: 04 May 2016
• Docket Number: 13CR1432,A157254.
• Citation: 278 Or.App. 138,372 P.3d 614
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Andrew Duane McCLELLAND, Defendant–Appellant.
• Court: Oregon Court of Appeals

278 Or.App. 138

372 P.3d 614

STATE of Oregon, Plaintiff–Respondent

v.Andrew Duane McCLELLAND, Defendant–Appellant.

13CR1432

A157254.

Court of Appeals of Oregon.

Submitted Jan. 27, 2016.

Decided May 4, 2016.

Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Dustin Buehler, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.

SHORR

, J.

Defendant assigns error to the trial court's order that he pay $55,490.69 in restitution following his convictions for misdemeanor assault in the fourth degree, ORS 163.160

, and interfering with a peace officer, ORS 162.247. In the underlying assault, defendant caused the victim to incur substantial medical bills, the largest of which arose out of the victim's resulting knee surgery. In his first assignment of error, defendant claims that the trial court erred in ordering restitution of $27,677.50, the amount of the hospital bill for the victim's knee surgery, because there was no testimony or evidence that the hospital bill was reasonable. In his second through seventh assignments of error, defendant challenges the trial court's imposition of various smaller restitution charges, ranging from $134 to $7,701 for assorted medical services, equipment, and medication.¹ Defendant acknowledges that he did not preserve his second through seventh assignments of error by raising objections in the trial court to the imposition of those costs, but asks us to exercise our discretion under ORAP 5.45(1) to review those assignments as error apparent on the record.

For the reasons discussed below, we conclude that the trial court erred when it ordered restitution of $27,677.50 for the hospital bill arising out of the victim's knee surgery because the state did not present evidence that the hospital bill reflected “reasonable charges.” Because we remand this case for resentencing, we do not reach defendant's second through seventh assignments of error.

We begin by stating the facts in the light most favorable to the state. State v. Gibson, 338 Or. 560, 562, 113 P.3d 423

, cert. den., 546 U.S. 1044, 126 S.Ct. 760, 163 L.Ed.2d 591 (2005) (reviewing the facts in the light most favorable to the state where the jury found the defendant guilty); see also

State v. Kirkland, 268 Or.App. 420, 421, 342 P.3d 163 (2015) (stating “[w]e review the evidence supporting the trial court's restitution order in the light most favorable to the state”). In September 2013, defendant was dating and living with the victim's sister at her apartment in Bandon, Oregon. The victim lived in an apartment above his sister. Defendant and the victim's sister got into an argument and were yelling at each other. Defendant stood up to leave and knocked the victim's sister over on his way out of the apartment. Defendant also grabbed her keys on his way out, and the commotion spilled out into the driveway and adjoining street.

Upon hearing the commotion below, the victim came out of his upstairs apartment, saw his sister crying and upset, and began to yell at and walk towards defendant. Defendant sprinted back towards the victim, tackled him from the side, bit him, and then began punching him in the head. As a result, defendant dislocated the victim's shoulder, broke his nose, and caused significant damage to his left knee, including the tearing

of the victim's anterior cruciate ligament.

Following defendant's conviction for assault, as well as a conviction for interfering with a peace officer, the state sought restitution of $55,490.69. That amount reflects the victim's various medical expenses caused by the assault and his lost wages resulting from the assault. As noted above, defendant objected at the restitution hearing to the hospital bill for the victim's knee surgery, which totaled $27,677.50. Defendant objected that the hospital bill alone did not establish that the charges were “reasonable” medical charges as required by the criminal restitution statute, ORS 137.106(1)(a)

, and its definition of recoverable “economic damages” under ORS 31.710. Although defendant had some additional objections to the victim's mileage and gas costs for travelling to the doctor, had questions about insurance reimbursements, and raised an issue about defendant's ability to pay restitution, defendant did not object to any of the other medical bills as unreasonable.

In response to the objection to the hospital bill, the trial court noted that “usually in civil cases the reasonableness of the fees is presented through a doctor or somebody who is sufficiently expert in that to come in and say * * * this was reasonable.” The trial court noted that there might be a distinction between economic damages in civil law when compared to criminal restitution, but ultimately concluded that, while a one-day hospital bill for surgery of $27,677.50 may “seem very high,” it was reasonable in light of the fact that it arose from and was necessary to address the victim's significant knee injuries

. The trial court also relied on an assertion that it was “common sense” and there was no objection to the nature of the knee injury. Defendant first assigns error to that ruling.

Turning to the standard of review, we review orders of restitution for errors of law. State v. Thorpe, 217 Or.App. 301, 303, 175 P.3d 993 (2007)

. “We are bound by the trial court's factual findings if they are supported by any evidence in the record[.]” State v. Pumphrey, 266 Or.App. 729, 730, 338 P.3d 819 (2014), rev. den., 357 Or. 112, 346 P.3d 1212 (2015).

The process by which the state may seek to recover restitution against a criminal defendant and on behalf of a victim is set forth by statute. ORS 137.106(1)(a)

provides, in relevant part:

“When a person is convicted of a crime * * * that has resulted in economic damages, the district attorney shall investigate and present to the court * * * evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court.”

(Emphasis added.) “Economic damages” is specifically defined by statute. ORS 137.103(2)

. With one exception not relevant here, “[e]conomic damages * * * [h]as the meaning given that term in ORS 31.710.” Id. ORS 31.710(2)(a), in turn, defines the term to mean, in relevant part, “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.” (Emphasis added.)

We have concluded that “there are three prerequisites to an order of restitution: (1) criminal activities, (2) economic damages, and (3) a causal relationship between the two.” Pumphrey, 266 Or.App. at 733, 338 P.3d 819

. Defendant's appeal implicates only the second prerequisite, economic damages, and particularly that term's definition as “reasonable charges necessarily incurred for * * * hospital * * * services.”

We have reviewed the definition of economic damages in ORS 31.710

many times, both in the context of criminal restitution orders and civil cases. Although criminal restitution has just three simple elements and is set forth in the criminal statute, ORS 137.106(1)(a), that statute, through ORS 137.103(2), incorporates the civil statutory definition of economic damages set forth in ORS 31.710(2)(a). As the Supreme Court recently explained in State v. Ramos, 358 Or. 581, 588, 368 P.3d 446 (2016), “neither ORS 137.106 nor the definition of economic damages in ORS 31.710(2)(a)

requires that the damages awarded in restitution be the damages that would be recoverable in a civil action” because such damages must only be those that “result from defendant's criminal activity.” (Emphasis added.) Still, “the legislature's cross-reference to the definition of ‘economic damages' applicable in civil actions, and the legislature's purpose in creating the restitution procedure as a substitute for a civil proceeding, makes civil law concepts relevant to our interpretation of ORS 137.106.” Id. at 594, 368 P.3d 446.

With respect to the general definition of economic damages in ORS 31.710(2)(a)

, we have concluded that such damages do not have to be proved as “objectively verified, ” but rather the legislature only required that they be “objectively verifiable monetary losses.” See

DeVaux v. Presby, 136 Or.App. 456, 463, 902 P.2d 593 (1995) (noting distinction with respect to former ORS 18.560 (1987), renumbered as ORS 31.710 (2003) (emphasis in original)).² Thus, as a general matter, damages that are not verified or quantified, but are “capable of verification through objective facts” or “capable of quantification,” are “economic damages.” Id. Additionally, as discussed further below, we have held that, in enacting ORS 31.710(2)(a), the legislature did not intend to impose “any particular pleading or proof requirements” to prove objectively verifiable economic damages. Id. at 463–64, 902 P.2d 593

(rejecting the argument that former ORS 18.560 (1987) imposed any particular “quantum of proof for recovery” of economic damages).

In recent cases, we have examined the specific types of economic damages that the state may recover under ORS 31.710(2)(a)

as well as the kind of evidence available to prove those damages. In State v. Labar, 259 Or.App. 334, 337, 314 P.3d 328 (2013), rev. den., 355 Or. 317, 327 P.3d 1167 (2014), we held that evidence of the retail price of Oxycontin tablets was sufficient evidence of “economic damages” for the trial court to award restitution to the victim...