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State v. Smith

Court of Appeals of Oregon

May 16, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MARCUS THOMAS SMITH, Defendant-Appellant.

          Submitted February 21, 2017

          Douglas County Circuit Court 15CR01465; William A. Marshall, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction entered after he pleaded no contest to assault in the fourth degree constituting domestic violence, ORS 163.160. Defendant assigns error to the trial court's imposition of restitution. Held: The trial court erred in imposing restitution because there was no evidence in the record from which the court could infer that defendant's criminal activity was the reasonably foreseeable "but for" cause of the victim's losses.

         Award of restitution reversed; otherwise affirmed.

         [291 Or.App. 786] DEHOOG, P. J.

         Defendant appeals a judgment of conviction entered after he pleaded no contest to assault in the fourth degree constituting domestic violence. Defendant assigns error to the trial court's imposition of restitution. He argues that the state did not present evidence to support the court's finding that defendant's criminal activity caused the victim's damages or that the damages were reasonably and necessarily incurred, both of which are prerequisites to the imposition of restitution. We conclude that the trial court erred in imposing restitution because there is no evidence in the record from which the court could infer that defendant's criminal activity was the reasonably foreseeable "but for" cause of the victim's losses. Accordingly, we reverse the award of restitution.[1]

         Defendant pleaded no contest to a charge of assault in the fourth degree constituting domestic violence, which alleged that he "did unlawfully and intentionally cause physical injury to [the victim], and the assault was committed in the immediate presence of or witnessed by the [victim's] minor child [.]" He stipulated that there was a factual basis for his plea of no contest.

         At sentencing, the state explained that defendant's charges arose from the following events. Defendant and the victim were in a relationship. At the time of the offense, the two had been in the bathroom arguing. The victim left the bathroom. Defendant followed her out and slapped her on the side of the face with an open hand. The victim left the home and locked herself in a car. Defendant used a key to open the door, yanked the victim out of the car, struck her again on the face, pushed her down, and briefly dragged her. The victim described her pain as having been a five or six on a scale of one to 10 at the time of the incident, but considerably less about an hour later when she spoke to law enforcement.

         At a subsequent restitution hearing, the state requested restitution in the amount of $4, 366.06. The [291 Or.App. 787] victim did not attend the hearing. The state presented one witness, Flock, a claims examiner for the Department of Justice, Crime Victim Services Division (CVSD), who testified that she had provided services to the victim in relation to defendant's case. According to Flock, CVSD paid the victim a total of $4, 366.06 consisting of $40.00 for a physician, $1, 948.98 for loss of earnings, $1, 345.00 for chiropractic care, and $1, 032.08 for acupuncture.

         Flock also described CVSD's restitution process. Flock explained that, when she receives an application for compensation, she reviews it, together with any police reports or other information provided. Because the victim in this case sought compensation for lost earnings, Flock first verified her income through her employment and her work release through her doctor, then paid the victim accordingly. Flock testified that it was the "same thing" as far as the two medical billings were concerned. Flock explained that she had received reports from the "medical people" and that the victim was "allowed to" receive five acupuncture visits and five chiropractic visits.[2] Flock also testified that an applicant must tell her whether they are seeking services for stress or physical injuries, but that, in this case, the stress "pretty much went hand in hand" with the victim's physical needs. Over defendant's objection, ...


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