State v. Mendez, 200324084.

• Decision Date: 14 March 2007
• Docket Number: A126177.,200324084.
• Citation: 211 Or. App. 311,155 P.3d 54
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christine Ann MENDEZ, Defendant-Appellant.
• Court: Oregon Court of Appeals

155 P.3d 54

211 Or. App. 311

STATE of Oregon, Plaintiff-Respondent, v. Christine Ann MENDEZ, Defendant-Appellant.

200324084.

A126177.

Court of Appeals of Oregon.

Argued and Submitted January 31, 2007.

Decided March 14, 2007.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Elizabeth A. Gordon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM,^* Judges.

HASELTON, P.J.

Defendant, who was convicted of first-degree criminal mischief, ORS 164.365, appeals, challenging the trial court's imposition of restitution in an amount greater than $1,000. Defendant raises two arguments: (1) The trial court, in awarding restitution of $1,665.99, impermissibly "re-examined" a "fact tried by a jury," violating Article VII (Amended), section 3, of the Oregon Constitution.¹ Specifically, defendant contends that, because the jury had previously found, for purposes of determining the crime seriousness of defendant's offense, that the "value of the damage" caused by defendant's conduct was not "more than $1,000," the court was constitutionally precluded from awarding restitution in a greater amount. (2) Under the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the determination of the amount of the victim's "economic damages" for purposes of restitution, ORS 137.106(1), should have been submitted to the jury.

As amplified below, we reject both arguments. First, whatever the precise scope of the first sentence of Article VII (Amended), section 3, it is apparent, at least, that a court does not impermissibly "re-examine[]" a "fact tried by a jury" where the court neither abrogates the jury's finding nor determines the same fact inconsistently with the jury's finding. Here, the trial court did not abrogate the jury's finding for purposes of crime seriousness classification; rather, the court imposed sentence in accordance with that finding. Further, because the jury and the court applied different standards of persuasion—beyond a reasonable doubt and by a preponderance of the evidence, respectively—the latter's determination of the amount of damages was not inconsistent with the former's. Thus, there was no violation of Article VII (Amended), section 3. For the reasons stated in State v. McMillan (A112613), 199 Or.App. 398, 402-03, 111 P.3d 1136 (2005), we also reject defendant's second, Blakely-based challenge without further discussion. Accordingly, we affirm.

The facts material to our review are undisputed. On September 26, 2003, Price, who was driving a van, and defendant, who was a passenger in a truck, had an unpleasant interchange in a Wal-Mart parking lot in Springfield. Defendant and the driver of the truck took issue with Price's driving and began cursing her. After she got out of her van and walked toward the store, Price, concerned, kept an eye on the van. She saw defendant, with a key in her hand, approach the side of the van. Price called 9-1-1 and, after police and store security guards responded, she returned to the van. Running from the front left quarter panel, across both the driver's and passenger's doors, to the back left quarter panel was a fresh, "really deep scratch"—"the paint was gone." According to one of the investigating officers, Parrish, the scratch was not merely a "surface marking"; instead, "[i]t penetrated all the way through to the paint, down to the primer. And in spots it had hit metal."

Defendant was charged, by indictment, with criminal mischief in the first degree, ORS 164.365.² The indictment further alleged that "the amount of loss caused by the defendant was more than One Thousand dollars ($1,000)." See ORS 135.711 (accusatory instrument "shall allege facts sufficient to constitute * * * a specific subcategory of a crime in the Crime Seriousness Scale established by the rules of the Oregon Criminal Justice Commission"). The significance of that additional allegation is that, if proved, it would increase the crime seriousness classification for defendant's offense from "2" to "3" for sentencing guidelines purposes. See OAR 213-017-0010(11) (if "value of the property stolen or destroyed" was $750 or more but less than $1,000, first-degree criminal mischief is a category "2" offense); OAR 213-017-0009(18) (damage of $1,000 or more but less than $5,000 yields a crime seriousness classification of "3").³

At trial, both Price and Parrish testified concerning the extent of damage. Price testified that, based on her "personal experience," the damage to the van was "more than $1,000."⁴ Parrish testified, from his "life experience [with] cars that are keyed," that the process to repair such damage is "quite expensive" and "just a door itself could be about 650 to 700 dollars" and "a scratch that went from the driver's side door all the way to the rear of the car would be more than $750 worth of damage."

Because the amount of damage was determinative of the crime seriousness rating, that question was submitted to the jury. See State v. Casavan, 139 Or.App. 544, 546, 912 P.2d 946, rev. den., 323 Or. 265, 918 P.2d 846 (1996) (crime seriousness category must be determined beyond a reasonable doubt); State v. Moeller, 105 Or.App. 434, 439, 806 P.2d 130, rev. dismissed, 312 Or. 76, 815 P.2d 701 (1991) (same). Specifically, the court instructed the jury, inter alia, that, if it found that defendant was guilty of first-degree criminal mischief, it must then determine whether the state had proved the "additional allegation that the damages were $1,000 or greater" and that the state bore the burden of proving that allegation "to be true beyond a reasonable doubt." The court also submitted a special verdict form to the jury, which included the question, "Was the value of the damage more than One Thousand Dollars ($1,000)"? The jury convicted defendant of first-degree criminal mischief but answered the additional interrogatory in the negative.

The court subsequently sentenced defendant to 18 months' probation, in accordance with the jury's response to the special interrogatory.⁵ That is, the court sentenced defendant consistently with the determination that the crime seriousness classification of her offense was "2," not "3." See 211 Or.App. at 315 n. 3, ___ P.3d at ___ n. 3.

With respect to restitution, the state filed a restitution schedule, ORS 137.106(1), asserting a "[t]otal loss" of $1,665.99, including Price's insurance deductible, her rental car expense, and the cost of repair incurred by her insurer. Following trial, defendant lodged objections, arguing, in part, that (1) under Blakely and Apprendi, the court was precluded from awarding restitution in excess of $750; and (2) imposition of restitution of more than $750 would constitute an impermissible "re-examin[ation]" of a "fact tried by a jury," violating Article VII (Amended), section 3.⁶ Defendant did not dispute the accuracy of the damages, as represented in the "restitution schedule."

The court ultimately ordered defendant to pay restitution of $1,665.99. In rejecting defendant's argument under Article VII (Amended), section 3, the court concluded:

"3. [T]he only evidence at trial in the case now before the court was that the damages exceeded $1,000 notwithstanding that the jury's verdict was that the state had not proved the `over $1,000' allegation and that, consequently the Court can affirmatively say and find that there is no evidence to support the verdict on the issue regarding limiting the damages to less than $1,000;

"4. ORS 137.106(1) requires the Court, not the jury, to set the amount of restitution and requires the Court to `include in the judgment a requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's pecuniary damages as determined by the Court.' (Emphasis added.)"

On appeal, defendant reiterates her challenges under Article VII (Amended), section 3. Specifically, she argues that, because the jury explicitly determined, as a matter of fact, that the amount of damages caused by her criminal conduct was not "more than $1,000," the court, in imposing restitution in a greater amount, impermissibly "re-examined" that fact. The state responds first, that, as the trial court concluded, there was "no evidence to support the [jury's] verdict," because the only evidence presented to the jury established that the damages caused by defendant's conduct exceeded $1,000—and, thus, any "re-examin[ation]" was constitutionally permitted. Alternatively, the state contends that the jury's and court's functions, in determining crime seriousness and imposing restitution respectively, are so qualitatively distinct that the latter does not implicate "re-examin[ation]" of any fact found in relation to the former.

We reject, at the outset, the state's first argument. Contrary to the trial court's observation, there was evidence in the record—Parrish's testimony—from which the jury could find that damages from the "keying" incident were greater than $750 but less than $1,000. Again, Parrish testified that a scratch of this sort "would be [worth] more than $750"—not $1,000—in damage. See 211 Or.App. at 315, ___ P.3d at ___. Nor would Parrish's testimony that it would cost $650 to $700 to repair the damage to one door compel the conclusion that repairing two doors would double the expense. Similarly, the jury was not obligated to accept Price's uncorroborated assertion that, in her "personal experience," the damages exceeded $1,000. We are unaware of any authority that a finder of fact, when...