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State v. Aguirre-Rodriguez

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
ALEX AGUIRRE-RODRIGUEZ, Defendant-Appellant.

          Submitted November 5, 2018

          Marion County Circuit Court 16CR60858 Rafael A. Caso, Judge pro tempore.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office 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 Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.

         Case Summary:

         Defendant pleaded guilty to crimes arising out of his driving into a pickup truck while intoxicated. On appeal, defendant assigns error to the trial court's imposition of $10, 404.80 in restitution for the cost of repairing the truck. Defendant argues that the record contains insufficient evidence that those repair costs were reasonable, as required by ORS 137.106 and ORS 31.710(a). The state responds that the Court of Appeals should adopt a relaxed standard of proof for reasonableness in restitution hearings and that, in all events, evidence that the insurer paid the repair bill is sufficient to establish that the charges were reasonable. Held: Evidence that an insurer paid a car-repair bill is insufficient to support a finding that the amounts paid were reasonable. See State v. J. M. E., 299 Or.App. 483, P.3d (2019).

         Reversed and remanded for resentencing; otherwise affirmed.

         [301 Or.App. 43]LAGESEN, P.J.

         Appealing a judgment of conviction for one count of failing to perform the duties of a driver to injured persons, ORS 811.705; two counts of fourth-degree assault, ORS 163.160; and one count of driving under the influence of intoxicants, ORS 813.010, defendant assigns error to the trial court's imposition of $10, 404.80 in restitution for the cost of repairing a pickup truck that defendant damaged in the course of his crimes. Defendant contends that the record contains insufficient evidence that those repair costs were reasonable, as required by ORS 137.106 (allowing for restitution of "economic damages") and ORS 31.710(a) (providing that "economic damages" for property damage consist of "reasonable costs incurred for repair or for replacement of damaged property, whichever is less"). On review for legal error, State v. Campbell, 296 Or.App. 22, 26, 438 P.3d 448 (2019), we agree with defendant and, accordingly, reverse and remand for resentencing.

         The relevant facts are, in the main, procedural and are not disputed. Defendant, while intoxicated, drove into a pickup truck, damaging the truck and injuring two people. He then fled the scene. For that conduct, defendant pleaded guilty to the charges identified above. The state sought restitution for the amount that the victim's insurer paid to repair the damaged truck-$10, 404.80.[1] In support of the claim, the state submitted documentary evidence of (1) the Bluebook value of the truck, assuming "excellent condition" ($9, 761); (2) photographs of the truck following the accident; (3) a repair estimate from an autobody shop of $10, 904.80; and (4) evidence that defendant's insurer paid $10, 404.80 to repair the truck. The state called no witnesses to testify in support of the restitution award and introduced no evidence addressing how the charges to repair the truck related to the usual and customary costs for such repairs. Defendant argued that the evidence presented was insufficient to establish that amounts sought for the repairs were reasonable. The trial court rejected that argument, reasoning that the costs of repairs were reasonable because they exceeded [301 Or.App. 44] the Bluebook value of the truck by only a $1, 000 or so and awarded the requested restitution, payable to the victim's insurer that had paid for the repairs. Defendant appealed.

         On appeal, defendant argues that the state's evidence here is insufficient to establish the reasonableness of the repair costs. For that point, he relies largely on State v. McClelland, 278 Or.App. 138, 372 P.3d 614, rev den, 360 Or. 423 (2016), in which we held that a medical bill alone is not sufficient to establish that medical charges are reasonable. The state argues that we should not "extend" the McClelland holding-that a bill alone does not establish the reasonableness of the charges-outside of the medical context. The state argues further, relying on cases from other jurisdictions, that it is inferable from the fact that a bill is paid that the amounts billed are reasonable and that this is not a McClelland case at all. The state also argues that restitution proceedings are different from civil tort actions and that, in its view, that difference should allow for a more relaxed standard for proving reasonableness.

         Although the state is right that McClelland turned on a body of case law addressing the reasonableness of medical charges, the principle underlying that case law is more universal: the fact that a charge is billed, standing alone, says nothing about whether that charge is reasonable. To know whether a charge is reasonable, a factfinder must have some sense of the relevant market. See Campbell, 296 Or.App. at 30-32 (concluding that charges for medical services are reasonable if they are at or below market rate); see also Farris v. McCracken, 253 Or. 273, 453 P.2d 932 (1969) (explaining that bills alone were not sufficient to establish "open market selling price" of materials and services supplied by contractors). The Supreme Court made this point in Farris in explaining why the plaintiffs' evidence was not sufficient to prove the reasonable value of the materials and services for which they were seeking payment:

"Plaintiffs' assertion that their only failure was to offer self-serving declarations as to the reasonable value of their labor and materials misses the mark. Certainly, a prime purpose of requiring testimony as to reasonable value is not merely to hear some witness say that. It is intended [301 Or.App. 45] that such evidence will give veracity to the claims being made. A charge stated in a bill that a plumber or carpenter spent [a] number of hours on the job may be of some evidentiary value. But when challenged by a denial it falls ...

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