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State v. Smartt

Court of Appeals of Oregon

July 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ISAIAH SMARTT, Defendant-Appellant.

          Submitted March 22, 2019

          Harney County Circuit Court 16CR61368; W. D. Cramer, Jr., Judge.

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

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

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Affirmed.

         Case Summary: Defendant appeals a judgment of conviction for assault in the third degree, ORS 163.165. The judgment imposed $52, 000 in restitution against defendant to compensate the victim for the 10 prosthetic eyes that the victim would require over the victim's lifetime as a result of the assault. Defendant argues that the state failed present legally sufficient evidence that the victim would need to have his prosthetic eye replaced every five years or that $5, 200 is a reasonable charge for a prosthetic eye. Held: The trial court did not err. Testimony from the victim and a victim's advocate provided legally sufficient evidence to permit the trial court to determine that it would be necessary for the victim to have his prosthetic eye replaced every five years. Additionally, testimony from the victim's advocate provided legally sufficient evidence to permit the trial court to determine that $5, 200 is a reasonable charge to have a prosthetic eye made.

         [298 Or.App. 405] TOOKEY, J.

         Defendant appeals a judgment of conviction for assault in the third degree, ORS 163.165, which imposed a total of $84, 046.58 in restitution against defendant. As a result of the underlying assault, the victim lost his right eye. In his sole assignment of error, defendant claims that the trial court erred in ordering restitution of $52, 000 for the prosthetic eyes that the victim would need over the course of his lifetime because, according to defendant, the state failed to prove that that amount was reasonable. For the reasons that follow, we affirm.

         The relevant facts are not in dispute. The case arises from a physical altercation between defendant and the victim. As a result of the altercation, the victim's right eye had to be removed and the victim was fitted with a custom prosthetic eye. The state charged defendant with, among other offenses, assault in the third degree, ORS 163.165. Defendant pleaded guilty to that offense, and the trial court dismissed the remaining charges.

         The state sought restitution for the economic damages caused by defendant's assault and the trial court held a restitution hearing. During that hearing, defendant stipulated to restitution for the victim's hospital bills; emergency medical transportation; the prosthetic eye that the victim had already received, if the state could establish the cost of that prosthetic eye; and various other medical expenses. Defendant, however, disputed $52, 000 in restitution that the state was seeking on the victim's behalf to compensate the victim for the cost of prosthetic eyes over the course of the victim's lifetime.

         The state, for its part, called the victim, who testified that (1) prosthetic eyes need to be replaced every "five or six years," (2) he did not know the cost of the prosthetic eye that he currently had, and (3) for the creation of the prosthetic eye that he currently had, he was required to "go [in] quite a few times," and measurements had to be taken so that molds could be made.

         Additionally, the state called Renae Palmer, who works in victims' assistance at the Harney County District [298 Or.App. 406] Attorney's Office. In that role, one of her duties is to "compile restitution figures for victims of crime." Palmer testified that, in this case, she "generate[d] a restitution figure" of $52, 000 for the cost of prosthetic eyes over the course of the victim's lifetime. To arrive at that figure, Palmer contacted two providers of prosthetic eyes: (1) the "only place [the victim] would be able to get a prosthetic eye in Oregon" and (2) the out-of-state provider that had made the prosthetic eye that the victim had at the time of the restitution hearing. Each provider told Palmer that the cost of a prosthetic eye was $5, 200. They also told Palmer that prosthetic eyes need to be replaced every "three to five years." Using the five-year figure, Palmer estimated that the victim, who was then 30 years old, would need to have 10 prosthetic eyes made as a result of the assault, resulting in a restitution figure of $52, 000.

         After the restitution hearing, the trial court issued a letter opinion imposing the disputed $52, 000 in restitution. The ...


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