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State v. Parsons

Court of Appeals of Oregon

August 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CORY ADAM PARSONS, Defendant-Appellant.

          Argued and submitted March 9, 2017

         Washington County Circuit Court C150336CR Eric Butterfield, Judge.

          John P. Evans, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*]

         [287 Or. 352] Case Summary: Defendant appeals from a supplemental judgment that ordered him to pay restitution upon his guilty plea to attempting to elude a police officer and second-degree criminal mischief for intentionally damaging property. Defendant argues that the trial court erred in ordering restitution for certain missing items, because he did not admit to taking the items nor was he convicted of theft. Defendant also argues that the court erred in ordering restitution to the city for damage to a police car, because the damage was not a reasonably foreseeable result of his criminal activity. Held: The trial court erred in ordering restitution for the missing items. Defendant was not convicted of theft, and he did not admit to hiding, secreting, or discarding the missing items. Accordingly, there was insufficient evidence under ORS 137.106 to show that defendant's "criminal activities" satisfied the requisite causal relationship to the missing items. The trial court also erred in ordering restitution for the damage to the police car because it did not make a finding whether the damage was "reasonably foreseeable, " as ORS 137.106 requires after State v. Ramos, 358 Or. 581, 368 P.3d 446 (2016). The trial court must therefore make that finding in the first instance.

         Supplemental judgment vacated and remanded.

         [287 Or. 353] DEVORE, P. J.

         Defendant was convicted upon his guilty plea to attempting to elude a police officer, ORS 811.540, and second-degree criminal mischief, ORS 164.354. He appeals from a supplemental judgment that ordered him to pay restitution to a clothing store, the City of Tigard, and the city's insurer. He raises a number of issues in his challenge to the restitution decisions. We address only two issues. First, defendant argues that the trial court erred in imposing $166 in restitution payable to the clothing store for two pairs of pants that were missing, rather than damaged, contending that he did not admit nor was he convicted of theft. Second, defendant contends that the court erred in ordering $500 in restitution to the city for damage to a police car, because the damage was not a reasonably foreseeable result of his criminal activity[1]

         We conclude that the trial court erred as a matter of law in ordering $166 in restitution for the two missing pairs of pants, vacate the supplemental judgment, and remand to the trial court for it to determine whether damage to the city's police car was reasonably foreseeable in light of State v. Ramos, 358 Or. 581, 368 P.3d 446 (2016).

         On review, we state the evidence supporting the trial court's restitution order in the light most favorable to the state. State v. Kirkland, 268 Or.App. 420, 421, 342 P.3d 163 (2015). We review the trial court's legal conclusions for errors of law. State v. Jordan, 249 Or.App. 93, 96, 274 P.3d 289, rev den, 353 Or. 103 (2012).

         [287 Or. 354] Defendant was initially charged by indictment with attempting to elude a police officer and with criminal mischief in the first degree. The indictment charged, among other things, that "on or about February 4, 2015, " defendant intentionally damaged or destroyed clothing and merchandise belonging to Abercrombie & Fitch (A&F). Defendant pleaded guilty to attempting to elude an officer, ORS 811.540, [2] and to second-degree criminal mischief, ORS 164.354.[3] Defendant's plea stated that he "intentionally damaged property belonging to [A&F] and [that he] intentionally fled or attempted to elude police officers on February 4, 2015." The trial court entered convictions on that plea.

         At the restitution hearing, the parties disputed the appropriate restitution sums. An employee of the clothing store testified that, in late January and into February of 2015, the store began experiencing unusual damage to its inventory. The employee described the damage as a deliberate shredding or cutting, likely with a knife. The rending was inconsistent with normal damage the store had experienced previously. Nine pairs of pants were damaged in that [287 Or. 355] way in January 2015. She testified that, on February 4, 2015, defendant entered the store and took five pairs of pants into a dressing room. Standing outside the dressing room, the employee heard ripping sounds emanating from defendant's dressing room. The employee saw defendant leave the dressing room and replace three of the five pairs of pants back. Two of the three pairs "were shredded" in the same manner as the nine pairs damaged in January. The two other pairs were never found. She followed defendant out of the store and reported his license plate number to police as he drove away. She also testified as to the store's losses, reporting that the two shredded pairs of pants cost $78 each, the missing pairs of pants cost $78 and $88 respectively, and the nine pairs damaged in January 2015 cost a total of $752. A&F's total loss was $1, 074.

         Officer Johnson of the Tigard Police Department testified that he responded to the incident. He recalled that dispatch had informed him that defendant was likely armed with a knife and that he might have a concealed handgun license. Johnson pursued defendant in a marked police car. He activated his overhead lights and sirens to pull defendant over. Defendant stopped only momentarily, but then continued on. As Johnson pursued defendant, other vehicles pulled to the side of the road. Defendant continued through two intersections with "plenty of opportunity to stop." As defendant was about to enter a residential neighborhood, Johnson drove his patrol car into the rear corner of defendant's truck, in a "pursuit intervention technique" (PIT), in order to force defendant's truck to a stop. Forty three seconds elapsed between the time Johnson activated his lights and sirens and the time he executed the emergency maneuver. Johnson testified that, ...


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