and Submitted July 31, 2018
Washington County Circuit Court C152052CR; Beth L. Roberts,
Meredith Allen, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Michael A. Casper, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Ortega, Presiding Judge, and Powers, Judge, and Mooney,
Summary: Defendant appeals a judgment of conviction and a
supplemental judgment. The supplemental judgment imposed a
$100 compensatory fine and restitution payable to the
child-victims' insurance company for costs paid to CARES
Northwest, which conducted child abuse evaluations of the
victims. Defendant contends that the restitution order was
improper because the state did not prove that the victims
"necessarily incurred" the costs of the evaluations
under ORS 137.106 and ORS 31.710(2)(a). Held: The
trial court erred. As explained in State v. White,
299 Or.App. 165, P.3d (2019), the insurance company did not
expend money on behalf of a qualifying victim for purposes of
Or.App. 370]MOONEY, J.
appeals a judgment of conviction and a supplemental judgment.
The supplemental judgment imposed a $100 compensatory fine
and restitution payable to the child-victims' insurance
company for costs paid to CARES Northwest (CARES), which
conducted child abuse evaluations of the victims. Under the
Supreme Court's opinion in State v.
Moreno-Hernandez, 365 Or. 175, 442 P.3d 1092 (2019), and
this court's opinion in State v. White, 299
Or.App. 165, ___ P.3d ___ (2019), both decided after the
trial court entered the restitution judgment, we agree with
defendant that the restitution award was legally erroneous.
We therefore reverse the supplemental judgment, remand for
resentencing, and otherwise affirm.
pleaded guilty to sexually abusing four minors. As relevant to
this appeal, two of those victims were evaluated at CARES,
which included physical examinations and forensic interviews.
The trial court ordered defendant to pay $6, 700.40 in
restitution to the victims' insurance company,
HealthShare/Providence CCO, for the costs it paid to CARES
for the evaluations.
appeal, defendant advances two arguments. First, he contends
that the restitution order was improper because the
evaluations were investigatory in nature as opposed to
medical and, therefore, were not recoverable because "a
court may not award restitution for the cost of investigating
that criminal activity, if the expense is part of the
ordinary operating expenses" of the entity seeking
restitution. Second, defendant contends that the restitution
order was improper because the state did not prove that the
victims "necessarily incurred" the costs of the
evaluations under ORS 137.106 and ORS
Or.App. 371] Recently, in White, 299 Or.App. at 168,
we relied on the Supreme Court's decision in
Moreno-Hernandez to conclude that the trial court
erred in awarding restitution to an insurance company for the
costs paid to CARES for treatment of an unemancipated minor.
We explained that
"the medical expenses of an unemancipated minor child
are not damages suffered by the child but, instead, are
damages suffered by the child's parents.
Moreno-Hernandez, 365 Or at 189. The upshot of that
holding is that an unemancipated minor who claims only
medical expenses as damages as a result of a defendant's
conduct does not qualify as a 'victim' under ORS
137.103(4)(a). See id.; State v. Toth, 365 Or. 169,
172-73, 442 P.3d 1089 (2019) (minor child did not qualify as
'victim' within meaning of ORS 137.103(4)(a) because,
under Oregon law, medical expenses of an unemancipated
minor-the only damages claimed to have been suffered by the
child-are the damages suffered by the child's parents,
not the child). That is because, by the plain terms of ORS
137.103(4)(a), a person is not a 'victim' within the
meaning of that provision unless the person (1) is the one
against whom defendant committed the crime and (2) incurred
economic damages as a result."
White, 299 Or.App. at 168-69.
child's insurance company in that situation is likewise
not a victim. For an insurance company to qualify as a victim
that is entitled to restitution under ORS 137.106(4)(d), it
must "expend moneys on behalf of a victim" as
defined in ORS 137.106(4)(a). It follows that, because the
unemancipated child is not a "victim" within the
meaning of paragraph (a) of the statute, a child's