State v. Park

• Citation: 317 Or.App. 692,505 P.3d 1026
• Decision Date: 24 February 2022
• Docket Number: A172294
• Parties: STATE of Oregon, Plaintiff-Respondent, v. James Kee Taik PARK, Defendant-Appellant.
• Court: Court of Appeals of Oregon

317 Or.App. 692

505 P.3d 1026

STATE of Oregon, Plaintiff-Respondent,

v.James Kee Taik PARK, Defendant-Appellant.

A172294

Court of Appeals of Oregon.

Submitted April 16, 2021.

February 24, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant appeals a judgment of conviction for numerous counts of various sex crimes committed against two minor victims. We reject without written discussion defendant's first and second assignments of error and write only to address defendant's third assignment, in which he challenges the trial court's imposition of $1,581.36 in restitution. For the following reasons we reverse the imposition of restitution.

The following facts are undisputed. During trial, evidence was presented that CARES Northwest conducted forensic interviews of both minor victims during the criminal investigation. The state filed a restitution notice requesting $1,581.36 in restitution for the Criminal Injuries Compensation Account (CICA). Following defendant's conviction, at sentencing the state requested the same amount in restitution for CICA. Defendant did not object. The court imposed $1,581.36 in restitution to CICA and sentenced defendant to a combined prison term that the state conceded at sentencing was "functionally" equivalent to a life sentence for defendant.

On appeal, defendant argues that the trial court plainly erred in imposing $1,581.36 in restitution to CICA because there was no evidence to establish that it suffered economic damages as a result of defendant's criminal conduct. See ORS 137.103(2)¹ and ORS 31.705² (defining "economic damages" for purposes of restitution in criminal cases); ORS 137.103(4) (defining "victim" for purposes of restitution). Defendant notes that the only record of services to the victims were their CARES evaluations but argues that a court is not permitted to order restitution to reimburse CICA for CARES evaluation services. See State v. Herfurth , 283 Or. App. 149, 151, 157-59, 388 P.3d 1104 (2016), rev. den. , 361 Or. 350, 393 P.3d 1176 (2017) (concluding that there was insufficient evidence to support the imposition of restitution to CICA as reimbursement costs to CARES for its evaluation of the victim where there was no evidence to establish a theory of civil liability under which those costs could be recoverable against defendant, which is required to constitute "economic damages" under ORS 137.103(2) ); see also State v. White , 296 Or. App. 445, 450-52, 439 P.3d 569, rev. den. , 365 Or. 195, 451 P.3d 978 (2019) (concluding that CARES was not a "victim" under ORS 137.103(4)(b) where state did not explain "why its provision of services constitutes ‘economic damages’ within the meaning of the restitution statutes"). Therefore, defendant asserts that there was an insufficient factual record to support imposing restitution to CICA and that the error is plain. ORAP 5.45(1) ; State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990) (plain error is an error of law that is obvious and not reasonably in dispute, and appears on the face of the record). Defendant also urges that we exercise our discretion to correct the error. See Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991) (setting forth considerations in deciding whether to exercise discretion to correct plain error).

The state concedes that the trial court plainly erred in imposing restitution to CICA, although on a slightly different legal basis. The state agrees that the "record does not reflect what [the restitution] amount was based on" but, like defendant, notes that the record establishes that CARES conducted evaluations of the victims. From there, the state contends that the court was without legal authority to impose restitution to CICA based on payments it made to CARES for its evaluations. That is so, according to the state, because ORS 137.103(4), as interpreted by State v. White , 299 Or. App. 165, 449 P.3d 924 (2019), prohibits CICA from obtaining restitution "for the expenses that a minor incurs for the costs of undergoing a CARES sex-abuse evaluation or other medical expense." See, e.g. , id. at 167-68, 449 P.3d 924 (concluding that the trial court was not statutorily authorized to impose restitution to Providence, the victim's medical insurer, for costs that Providence paid to CARES and Randall Children's Hospital as reimbursement for their evaluations of the minor victim's injuries related to the incident; assuming without deciding that those costs were properly considered medical expenses, "the medical expenses of an unemancipated minor child are not damages suffered by the child but, instead, are damages suffered by the child's parents"). Therefore, on that basis, the state concedes that the trial court plainly erred in imposing restitution to CICA. Although the record is insufficient to establish that the restitution was based on payments that CICA made to CARES for the victims’ evaluations, we agree with the parties that the trial court plainly erred in ordering restitution to CICA on this record.

Here, there was insufficient evidence to establish the nature of the ordered restitution. See State v. Ixcolin-Otzoy , 288 Or. App. 103, 104, 406 P.3d 100 (2017), rev. den. , 362 Or. 699, 416 P.3d 1092 (2018) (state's burden to prove by a preponderance of the evidence the "nature and amount" of the victim's economic damages (internal quotation marks omitted)); ORS 137.106 (providing that state must present "nature and amount" of economic damages). The parties do not dispute that there was no evidence explaining who CICA made payments to, or what the payments were made for. Although the state's concession assumes that the restitution was based on payments that CICA made to either the victims’ insurers or directly to CARES as reimbursement for the costs of the CARES evaluations of the minor victims, there is nothing in the record to support a nonspeculative inference that that was what happened, or that CARES even sought financial reimbursement for its services. Further, as the parties agree, there is no other evidence in the record...