State v. Moore , 300 Or. App. 579 ( 2019 )

579
Submitted September 19, affirmed November 14, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
RANDY ALLEN MOORE,
Defendant-Appellant.
Deschutes County Circuit Court
14FE1395; A166912
454 P3d 836
Walter Randolph Miller, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, Mooney, Judge, and
Hadlock, Judge pro tempore.
PER CURIAM
Affirmed.
580 State v. Moore
PER CURIAM
On resentencing after remand, the trial court
imposed a $5,000 compensatory fine in connection with
defendant’s convictions for first-degree sexual abuse, which
defendant challenges in this appeal.1 At the resentencing
hearing, the state presented a letter from the child vic-
tim’s parents that the child was undergoing counseling as
the result of defendant’s crimes and that the family had
suffered other financial hardship. The court ordered that
the compensatory fine be paid to the child’s mother. As
refined in a memorandum of additional authorities, defen-
dant argues on appeal that the court erred because there
is no evidence that the minor victim “incurred” economic
damages. According to defendant, the fine was awarded for
counseling costs that were or would be expended on behalf
of the minor victim, and, under cases decided after he filed
his brief, in particular, State v. Moreno-Hernandez, 365 Or
175, 442 P3d 1092 (2019), and State v. White, 299 Or App
165, 449 P3d 924 (2019), she cannot be financially respon-
sible for those costs. Defendant contends that the error is
preserved; alternatively, he requests plain error review. We
reject both propositions.
First, defendant’s arguments to the trial court
below—that the court erred because (1) the state failed
to provide any evidence about the costs of the counseling
and (2) defendant would be unable to pay the fine due to
his lengthy incarceration—are insufficient to preserve his
appellate contention. Second, it is at least questionable
whether the court might permissibly have imposed the fine,
directed to the mother, under the definition of “victim” in
ORS 137.103(4)(b)—that is, “[a]ny person not described in
[ORS 137.103(4)(a)] whom the court determines has suffered
economic damages as a result of the defendant’s criminal
activities.” Moreno-Hernandez, 365 Or at 181-82 (to impose
compensatory fine, injured victim must meet one of the stat-
utory definitions of “victim” in ORS 137.103(4)); id. at 190
1
In defendant’s first appeal, we concluded that the trial court plainly erred
in imposing the $5,000 compensatory fine in addition to a punitive fine and
reversed and remanded for resentencing on that basis. State v. Moore, 288 Or
App 85, 404 P3d 1147 (2017).
Cite as 300 Or App 579 (2019) 581
(remanding for resentencing because, although court erred
in imposing compensatory fine directed to minor victim in
Department of Human Service’s custody, “it may be that a
compensatory fine could be imposed, payable to another vic-
tim”). And, defendant has not attempted to explain why that
is not the case. Thus, the error, if any, is not plain. Ailes v.
Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956 (1991)
(plain error review requires that the legal error be “obvious,
not reasonably in dispute”); State v. Tilden, 252 Or App 581,
589, 288 P3d 567 (2012) (“[I]t is incumbent upon the appel-
lant to explain to us why an error satisfies the requisites of
plain error and, further, why we should exercise our discre-
tion to correct that error.”). For the same reason, we would
not exercise our discretion to correct the error, even if it was
plain. Id.We reject defendant’s alternative argument—that
the court erred in imposing the compensatory fine because
the record lacks evidence of the “actual costs” of the victim’s
counseling—on the merits without discussion.
Affirmed.