Submitted October 10, 2017.
Washington County Circuit Court C140270CR. Eric Butterfield,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sara F. Werboff, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jeff J. Payne, Assistant Attorney General, filed
the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
for resentencing; otherwise affirmed.
Or.App 518] AOYAGI, J.
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.
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.
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. That portion of the restitution award is
the subject of defendant's first assignment of error.
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.
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).
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 ...