State v. O'Donnell ( 2019 )

514
Submitted November 26; remanded for resentencing, otherwise affirmed
December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
KEVIN WAYNE O’DONNELL,
Defendant-Appellant.
Marion County Circuit Court
17CR51967; A168050
454 P3d 849
Jennifer K. Gardiner, Judge pro tempore.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 301 Or App 514 (2019) 515
PER CURIAM
Defendant, who was convicted of attempted first-
degree assault, ORS 161.405; ORS 163.185, and second-
degree assault, ORS 163.175, asserts on appeal that the
trial court erred in ordering him to pay restitution in the
amount of $2,572. The charges arose from an incident in
which defendant assaulted one victim, T, with a baseball bat
and attempted to assault another victim, L, with a baseball
bat. On appeal, defendant argues that the state presented
insufficient evidence of T’s lost wages, and also that the state
failed to prove that the charges T incurred for ambulance
services after the assault were reasonable. We reject defen-
dant’s argument concerning lost wages without discussion.
As for the ambulance service charge, the state concedes that
it failed to adduce evidence that the ambulance charge of
$452 was “reasonable,” as required by State v. McClelland,
278 Or App 138, 144, 372 P3d 614, rev den, 360 Or 423 (2016)
(submission of a bill, without more, is insufficient proof for
recovery of “ ‘reasonable’ * * * medical services”). We agree
and accept the state’s concession.
Remanded for resentencing; otherwise affirmed.