Submitted: January 17, 2013.
Multnomah County Circuit Court. 090532142. David F. Rees, Judge.
Remanded for resentencing; otherwise affirmed.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
[260 Or.App. 628] NAKAMOTO, J.
Following a bench trial, defendant was convicted of five counts of first- degree theft, ORS 164.055, for improperly obtaining unemployment benefits. The court sentenced defendant
to supervised probation and ordered him to pay restitution to the Oregon Employment Department (the department) in the amount of $26,004 plus 12 percent interest. Defendant now appeals the judgment, arguing that the trial court erred when it (1) admitted an exhibit over his hearsay objection; (2) denied his motion for a continuance; (3) added 12 percent interest to the restitution award; and (4) denied his motion for judgment of acquittal. We reject defendant's second and fourth assignments of error without discussion. Additionally, as explained below, we conclude that defendant's first assignment of error is without merit. However, as to defendant's third assignment of error, we agree that the trial court erred in adding 12 percent interest to the restitution award. Accordingly, we remand for resentencing; otherwise, we affirm.
Defendant was prosecuted for first-degree theft after the department discovered that he had under-reported his earnings in connection with his unemployment benefits claims. Specifically, defendant had failed to include in his reported earnings the gratuities he had earned working as a banquet server for the Hilton Hotel (the Hilton) in Portland. Due to that under-reporting, defendant received unemployment benefits in excess of what he would have been entitled to if he had accurately reported his earnings. After a bench trial, the court found defendant guilty of five counts of first-degree theft, and ordered him to pay the department restitution in the amount of $26,004 plus 12 percent interest.
In his first assignment of error, defendant contends that the trial court erred in admitting the state's Exhibit 1 because it contained inadmissible double hearsay. In reviewing a trial court's evidentiary ruling on the admissibility of a hearsay statement, we apply a two-part standard of review. State v. Cook, 340 Or. 530, 537, 135 P.3d 260 (2006). In the first part of that review, we " will uphold the trial court's [260 Or.App. 629] preliminary factual determinations if any evidence in the record supports them." Id. In the second part, we review " the trial court's ultimate legal conclusion, as to whether the hearsay statement is admissible under an exception to the hearsay rule, to determine if the trial court made an error of law." Id. With that standard of review in mind, the facts relating to the admission of Exhibit 1 are as follows.
Exhibit 1 is a computer print-out of a chart prepared by the department that lists information about defendant's claims for each week that he claimed unemployment benefits, including: (1) the earnings that defendant reported to the department, (2) defendant's earnings as reported by his employer, the Hilton, (3) the amount of benefits defendant received, (4) the amount of benefits defendant should have received based on the earnings the Hilton reported, and (5) the amount of benefits defendant was overpaid as a result.
The state sought admission of Exhibit 1 through the testimony of Younger, the department's fraud investigator who prepared the chart and investigated defendant. Younger testified that she created the chart using a computer program in which she entered the name of the employer, the weeks in which defendant claimed benefits, how much defendant reported earning, and defendant's earnings as reported by his employer. The amounts in the last three columns of the chart--the benefits defendant received, the correct benefits amount, and the benefits overpaid--were calculated by a computer program.
Younger testified that employers report their employees' earnings to the department in quarterly earnings reports that are required as part of the employers' unemployment tax obligations. Younger said that the department collects and maintains employer-reported earnings information from these quarterly reports, and that, in this case, the initial information about defendant's employer-reported earnings came from quarterly reports filed by the Hilton. She also testified that the Hilton files quarterly reports ...