and Submitted February 23, 2016
County Circuit Court C140351CR; Thomas W. Kohl, Judge.
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
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
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
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.
argument on appeal was not fairly presented to the trial
court; accordingly, defendant failed to preserve his
Or. 104] ORTEGA, P. J.
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.
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 ...