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State v. Ixcolin-Otzoy

Court of Appeals of Oregon

October 4, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSE IXCOLIN-OTZOY, Defendant-Appellant.

          Argued and Submitted February 23, 2016

         Washington County Circuit Court C140351CR; Thomas W. Kohl, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Michael S. Shin, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Defendant challenges a restitution award to CARES N.W. and the Department of Human Services for the costs of a sexual abuse evaluation performed by CARES N.W. on defendant's 15-year-old victim. On appeal, he argues that ORS 137.106 does not authorize restitution for the evaluation costs because they were investigatory costs that were incurred by CARES N.W. as part of its ordinary operating expenses. Defendant relies on two prior cases that support the argument that the record disclosed no facts that would give rise to a theory of civil liability under which CARES N.W. could recover those costs from defendant.

         Held:

         Defendant's argument on appeal was not fairly presented to the trial court; accordingly, defendant failed to preserve his appellate argument.

         Affirmed.

         [288 Or. 104] ORTEGA, P. J.

         Defendant challenges an award of restitution to CARES Northwest and the Department of Human Services (DHS) for the costs of a sexual abuse evaluation performed by CARES on defendant's 15-year-old victim. On appeal, defendant argues that the costs of the evaluation may not be awarded as restitution under ORS 137.106 because an entity does not suffer "verifiable monetary losses" for investigatory expenses that are incurred as part of the entity's "ordinary operating expenses." The state contends that defendant's appellate argument differs fundamentally from the limited objection that he made to the trial court and therefore is not properly before us. Alternatively, the state argues that the trial court properly awarded restitution because the costs of the evaluation qualify as "economic damages" under ORS 137.106. Because we conclude that defendant failed to adequately preserve the argument that he makes on appeal, we affirm.

         We begin with a brief overview of restitution to set the context for our preservation analysis. The restitution statute at issue in this case, ORS 137.106, provides, in relevant part:

"(1)(a) When a person is convicted of a crime *** that has resulted in economic damages, the district attorney shall investigate and present to the court *** evidence of the nature and amount of the damages. * * * If the court finds from the evidence presented that a victim suffered economic damages * * * the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific ...

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