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State v. Gaul

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,

          Argued and submitted April 30, 2019

          Tillamook County Circuit Court 17CR25605; Jonathan R. Hill, Judge.

          John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Julie Glick, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Defendant was convicted of harassment and, in a supplemental judgment, ordered to pay $728.99 in restitution to the victim. On appeal of the supplemental judgment, defendant challenges the restitution award, arguing that the evidence was insufficient to establish a causal link between her harassment of the victim and the victim's loss of certain personal items for which restitution was ordered. Held: Where defendant took the victim's smartphone during an argument and broke the victim's finger when the victim tried to recover it, the trial court did not err in ordering defendant to pay $649.00 as restitution for the lost smartphone. However, the trial court erred in ordering defendant to pay $79.99 as restitution for an electric toothbrush that the victim left at defendant's residence and was unable to recover after the argument.

         Supplemental judgment reversed and remanded; remanded for resentencing.


         [301 Or.App. 143] AOYAGI, J.

         Defendant was convicted of harassment and ordered to pay $728.99 in restitution. That amount consisted of $649.00 for the victim's smartphone and $79.99 for the victim's electric toothbrush. On appeal, defendant challenges the restitution order. We agree with defendant that the trial court erred regarding the electric toothbrush, but not the smartphone. Accordingly, we reverse and remand.

         We review a restitution order for errors of law. State v. Smith, 291 Or.App. 785, 788, 420 P.3d 644 (2018). In doing so, we are bound by the trial court's factual findings if there is any evidence in the record to support them. Id. We state the facts in accordance with that standard of review.

         In April 2017, the victim was staying at defendant's home in Rockaway Beach. On her fifth night there, defendant and the victim were drinking wine and conversing when defendant started yelling. The victim thought it was a joke and laughed. Defendant screamed at the victim to "get out of her house." The victim laughed again and asked if defendant was serious. At that point, defendant picked up both the victim's smartphone and the victim's prescription medication and said, "Oh, you want this? Is this what you want?" When the victim reached for the items, defendant grabbed the victim's hand and broke her finger. The victim immediately went to a neighbor's house, and the neighbor called the police. After the police arrived, both defendant and the victim were arrested, and, for reasons unclear from the record, the victim spent nine days in jail.

         When the victim was released from jail, she called defendant about retrieving her personal belongings from defendant's home. Defendant yelled at the victim and "said it was all gone. Thrown away." Eventually, with police assistance, the victim recovered some items from defendant's house. However, the victim did not recover her driver's license, her smartphone, an electric toothbrush, and some makeup.

         Defendant was charged with harassment, ORS 166.065, for subjecting the victim to offensive physical [301 Or.App. 144] contact. See ORS 166.065(1)(a)(A) ("A person commits the crime of harassment if the person intentionally *** [h]arasses or annoys another person by *** [s]ubjecting such other person to offensive physical contact[.]"X She pleaded no contest. At sentencing, the state asked that defendant be ordered to pay restitution in the amount of $1, 683.65, representing the value of all of the victim's unre-covered items. The trial court denied restitution for the victim's driver's license and makeup, reasoning that there was not a sufficient causal relationship between the harassment and the loss of those items. But it ordered restitution for the smartphone and the electric toothbrush, because, to the trial court's recollection, the victim had "talked about having an iPhone 6 Plus and a Philips Sonicare [toothbrush] in ...

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