Submitted December 21, 2017
Malheur County Circuit Court 15CR1533; Patricia A. Sullivan,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erin J. Snyder Severe, Deputy Public Defender, Offce of
Public Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and E. Nani Apo, Assistant Attorney General, fled
the brief for respondent.
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
Summary: Defendant appeals an amended general judgment of
conviction for harassment, ORS 166.065, assigning error to
the trial court's imposition of restitution. Defendant
argues that the trial court erred in imposing restitution
where it was unclear, based on the jury's verdict, what
specific conduct established the conviction for harassment.
Specifically, defendant argues that the uncertainty defeats
the causal nexus between defendant's conduct and the
victim's damages. Held: The trial court did not
err. In imposing restitution, the court was not limited to
consideration of the evidence presented at trial and there
was ample evidence in the record that defendant struck the
victim in the face and caused the victim to suffer damages.
Or.App. 195] GARRETT, J.
appeals an amended general judgment of conviction for
harassment, ORS 166.065. We reject without discussion
defendant's first assignment of error and write to
address his second assignment, which challenges the trial
court's award of restitution. For the reasons explained
below, we affirm.
reviewing a trial court's award of restitution, we view
the evidence in the light most favorable to the state,
State v. Kirkland, 268 Or.App. 420, 421, 342 P.3d
163 (2015), and review a trial court's legal conclusions
for errors of law, State v. Jordan, 249 Or.App. 93,
96, 274 P.3d 289, rev den, 353 Or. 103 (2012). We
state the facts in accordance with that standard.
was charged with harassment and fourth-degree assault, ORS
163.160, following an altercation that occurred between
defendant and the victim after the victim prevailed in an
unrelated civil action against defendant. Following a hearing
in that proceeding, the victim returned to work at a car wash
that he owned and operated. A short time later, defendant
arrived at the car wash and began verbally accosting the
victim and making rude gestures at him. At trial, the victim
testified that, when he approached defendant's car,
defendant spat on him and struck him on the side of his face.
The victim further testified that the contact caused his
tooth bridge, a device that held one of his teeth in place,
to fall out and become damaged.
closing argument, the state argued that the "offensive
physical contact" element of harassment could be
established by defendant spitting on the victim, punching the
victim, or both. The jury found defendant guilty of
harassment but not guilty of assault. The verdict did not
specify what conduct formed the basis of the jury's
conviction for harassment.
restitution hearing, the victim again described
defendant's punching him in the face, and the [295
Or.App. 196] state presented documentary evidence from the
victim's dentist that the cost of repairing the tooth
bridge was $2, 280. Defendant objected to the state's
request for restitution, arguing that the court could not
impose restitution because the jury had not concurred on the
specific conduct that established the "offensive
physical contact" element of harassment. Additionally,
defendant pointed to the fact that he had been found guilty
of harassment, which does not require physical injury, and
not guilty of assault, which does require physical injury.
From that, defendant reasoned that the jury might have
convicted him based solely on spitting, which could not have
caused the victim's damages. The trial court rejected
defendant's arguments and found:
"[I]n this case it's entirely possible the jury
acquitted on the Assault 4 because they didn't find
physical injury in this case because of the lack of pain and
the fact that what was damaged was this bridge, ...