and submitted April 30, 2019
Tillamook County Circuit Court 17CR25605; Jonathan R. Hill,
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
Glick, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
judgment reversed and remanded; remanded for resentencing.
Or.App. 143] AOYAGI, J.
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.
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.
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.
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
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 ...