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State v. Howard

Court of Appeals of Oregon

June 20, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LEOPOLD JAMES HOWARD, Defendant-Appellant.

          Submitted October 10, 2017.

          Washington County Circuit Court C140270CR. Eric Butterfield, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary: Defendant was convicted of two counts of theft in the first degree and ordered to pay restitution. On appeal, he raises four assignments of error, each of which challenges a portion of the restitution award as plain error. Held: With respect to the second and third assignments of error, defendant invited or waived any objection to the alleged errors. Regarding the first and fourth assignments of error, the trial court plainly erred in imposing restitution for damages arising from alleged conduct to which defendant did not admit or plead guilty.

         Remanded for resentencing; otherwise affirmed.

          [292 Or.App 518] AOYAGI, J.

         Defendant was convicted of two counts of theft in the first degree and ordered to pay $4, 442.23 in restitution. On appeal, he raises four assignments of error, each of which challenges a portion of the restitution award. With respect to the second and third assignments of error, we agree with the state that defendant invited or waived any objection to the alleged errors and therefore reject those assignments without further discussion. Regarding the first and fourth assignments of error, we agree with defendant that the trial court erred. Accordingly, we remand for resentencing.

         Defendant and his girlfriend took jewelry from the home of his girlfriend's mother, S, and then pawned individual pieces on different dates. Defendant was charged with three counts of theft in the first degree, ORS 164.055, based on theft-by-receiving. Count 1 pertained to defendant's pawning of S's jewelry on December 15, 2013. Count 2 pertained to his pawning of S's jewelry on December 16, 2013. Count 3 pertained to his alleged pawning of S's jewelry on December 22, 2013. Defendant pleaded guilty to Counts 1 and 2. Count 3 was dismissed.

         The trial court subsequently held a restitution hearing. As relevant here, the state requested that defendant be ordered to pay $550 in restitution to Hillsboro Pawn to compensate for losses that the pawn shop suffered as a result of defendant or his girlfriend pawning jewelry on December 3, 10, 14, 15, 16, 18, 19, and 22, which the pawn shop later returned to S. The court agreed and awarded $550 to Hillsboro Pawn, to be paid by defendant "joint and several" with his girlfriend.[1] That portion of the restitution award is the subject of defendant's first assignment of error.

         The state also requested that defendant be ordered to pay $236.81 of restitution to J, the husband of S, for lost wages that he incurred on January 2, 2014, when he missed 7.12 hours of work. At the restitution hearing, J testified that, on the morning of January 2, S called him "screaming" that she had found a man on the floor in their craft [292 Or.App 519] room, "[a]nd then she realized that it was [defendant] on the floor." J insisted on speaking with their daughter, who resisted taking the phone but finally took it. J told their daughter that he would have her and defendant arrested for trespassing if they were not gone by the time he got home. J described himself as "red zone at that time. I was so mad." J left work "because I was so upset." It took him an hour to drive home. There is no evidence that defendant was present when J arrived home. The court included J's lost wages on January 2, 2014, in its restitution award. That portion of the restitution award is the subject of defendant's fourth assignment of error.

         We review the restitution award for errors of law. State v. Harrington, 229 Or.App. 473, 476, 211 P.3d 972, rev den, 347 Or. 365 (2009). Evidence supporting the restitution award is viewed in the light most favorable to the state. State v. Kirkland, 268 Or.App. 420, 421, 342 P.3d 163 (2015).

         Because defendant did not preserve the alleged errors, he asks that we review for plain error. An error is plain if it is (1) an error of law; (2) obvious and not reasonably in dispute; and (3) apparent on the record without requiring the court to choose among competing inferences. ORAP 5.45(1) n 1; State v. Steen,346 Or. 143, 147 n 5, 206 P.3d 614 (2009). We have discretion to correct an unpreserved error that is plain error after considering "[t]he competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind ...


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