State v. Abeln , 307 Or. App. 839 ( 2020 )

839
Submitted March 11; portion of judgment awarding restitution on Count 1
reversed, remanded for resentencing, otherwise affirmed December 9, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL PAUL ABELN,
Defendant-Appellant.
Washington County Circuit Court
17CR59932; A167479
477 P3d 436
Andrew Erwin, Judge.
Kenneth A. Kreuscher filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
PER CURIAM
Portion of judgment awarding restitution on Count 1
reversed; remanded for resentencing; otherwise affirmed.
840 State v. Abeln
PER CURIAM
Defendant appeals a judgment of conviction for
two counts of first-degree sexual abuse, ORS 163.427, and
one count of third-degree sexual abuse, ORS 163.415. At
the outset, we reject without discussion defendant’s first
two assignments of error. For his third, he assigns error
to the trial court’s awards of restitution in the amounts of
$2,968.15 to Child Abuse Response and Evaluation Services
Northwest (CARES), which conducted a child abuse evalua-
tion of the victim, and $451.85 to Subrogation Services, Inc.
For purposes of his appeal, defendant treats the amounts
awarded to both organizations as going to CARES, explain-
ing that “[t]he record does not indicate whether the subro-
gation funds are directly related to the funds claimed by
CARES Northwest, but those appear to be the only potential
insurance related costs for the restitution.” He argues that
CARES does not meet the statutory definition of a victim
under ORS 137.103 for purposes of awarding victim restitu-
tion under ORS 137.106.
In response, the state concedes that, under State v.
White, the trial court erred in awarding the $2,968.15 in res-
titution to CARES and agrees that this court should reverse
the restitution award and remand for resentencing. 296 Or
App 445, 450-52, 439 P3d 569, rev den, 365 Or 195 (2019)
(concluding under similar circumstances that CARES was
neither a victim nor suffered economic damages for purposes
of crime victim restitution). As for the amount awarded to
Subrogation Services, Inc., the state contends that defen-
dant has not assigned error to it.
We accept the state’s concession regarding the
$2,968.15 in restitution to CARES, and reverse and remand
for the reasons stated in White and our subsequent cases
following White. Id.; see also State v. Boza, 306 Or App 279,
473 P3d 1161 (2020) (accepting the state’s similar concession
based on reasoning in White). As for the amount awarded to
Subrogation Services, Inc., we understand defendant to have
assigned error to that amount, but the record is such that
we are unable to determine whether the trial court awarded
that amount based on its erroneous view that CARES was
eligible to recover restitution. Because we are remanding,
Cite as 307 Or App 839 (2020) 841
the trial court may address that point, with the benefit of
the parties’ arguments, on remand.
Portion of judgment awarding restitution on Count 1
reversed; remanded for resentencing; otherwise affirmed.