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State v. Alonso

Court of Appeals of Oregon

March 22, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JAIME ALONSO, Defendant-Appellant.

          Argued and Submitted March 29, 2016

         Washington County Circuit Court C132730CR; A156777 Kirsten E. Thompson, Judge.

          Erin J. Snyder, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

          TOOKEY, J.

         Defendant appeals a judgment of conviction for third-degree rape, ORS 163.355, assigning error to the trial court's imposition of a $3, 000 compensatory fine. Defendant argues that the trial court lacked the statutory authority under ORS 137.101 to impose a compensatory fine because the victim's tattoo was not the direct result of his crime and because the victim could not recover the costs for the tattoo removal in a civil action against defendant. We conclude that the state failed to advance a valid theory of civil liability under which the victim could recover the costs of the tattoo removal, and, accordingly, we reverse the compensatory fine, remand for resentencing, and otherwise affirm.

         The following facts are undisputed. Defendant was in an ongoing sexual relationship with the minor victim who was under the age of 16 at the time. In the course of that relationship, the victim became pregnant and gave birth to their son. When their son was about six months old, defendant took the victim to someone's home to get a tattoo. The victim testified that she got a tattoo of defendant's name on her neck because defendant wanted her to prove that she was serious about their relationship, otherwise defendant said that he would leave her and that he would not help her to raise their son.

         Defendant was charged with multiple sexual offenses, including third-degree rape, for having sexual intercourse with a child under 16 years of age.[1] The indictment alleged that the rape occurred "on or between January 1, 2012 and April 3, 2012." Defendant pleaded guilty to third-degree rape, expressly admitting in his plea petition to the crime as alleged in the indictment. The trial court entered a judgment of conviction for third-degree rape based on defendant's guilty plea and dismissed the remaining counts.

         At the restitution hearing, the parties disputed whether the trial court could order defendant to pay the $3, 000 requested by the victim for tattoo removal. Defendant argued that the trial court could not order defendant to pay for the tattoo removal because "there's not a causal nexus between rape in the third degree and the tattoo." Defendant contended that "[p]roof of 'economic damages' as a result of a crime requires more than evidence of a 'but-for' connection between an objectively verifiable monetary loss and the crime; it requires evidence that a loss could be recovered 'against the defendant in a civil action.'" The state responded that the victim "would not have, in fact, gotten the tattoo but for the defendant" and that "it doesn't have to be that the rape itself is the act that caused the tattoo, " it can be for any injury that "flow[s] out of or [is] related to a crime." The state did not advance a particular theory of civil liability. Rather, it asserted that the victim could "recover the damages if there were a civil lawsuit" because "they're economic damages * * * flowing out of the sexual relationship that she had with the defendant."

         The trial court rejected defendant's argument and explained the basis for its decision:

"I'm satisfied that the state has met its burden of proof on this and that this is a compensable type of damage. I would analyze it this way: Part of it-part and parcel of a Rape 3-type allegation is that the person who is the victim is too young to consent to sexual relations.
"Why-why is that of concern? Because persons who are too young to consent to sexual relations are subject to being swayed by persons who are older than they are. And they are particularly prone to the kinds of-of poor ...

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