State v. Elder ( 2021 )

572
Submitted October 1; supplemental judgment reversed; remanded for
resentencing, otherwise affirmed December 22, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL EDWIN ELDER,
Defendant-Appellant.
Douglas County Circuit Court
20CR06461; A174163
502 P3d 780
Ann Marie Simmons, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Supplemental judgment reversed; remanded for resen-
tencing; otherwise affirmed.
Cite as 316 Or App 572 (2021) 573
PER CURIAM
Defendant was convicted of two counts of first-
degree forgery after entering a plea of no contest and was
sentenced to probation. In a supplemental judgment, the trial
court ordered defendant to pay restitution in the amount of
$13,075. Defendant seeks reversal of the restitution award,
arguing that there was no causal connection between the
criminal conduct that he pleaded no contest to and the vic-
tim’s loss. In response, the state agrees with defendant that
the order to pay restitution was in error because the vic-
tim did not suffer any losses resulting from the checks that
defendant had forged.
Defendant and the victim had a business invest-
ment deal in which the victim loaned defendant $20,000
with the understanding that the victim would be repaid
with interest. However, that anticipated repayment did not
happen. Instead, defendant provided the victim with fraud-
ulent checks, including the two checks that are the subject
of the forgery charges on which defendant was convicted—
checks in the amounts of $5,000 and $10,000.1 Defendant
argued at the restitution hearing, as he does on appeal,
that that money was already owed to the victim based on
their business deal and that writing forged checks did not
increase any amount owed—that there are no new damages
from passing bad checks. Therefore, according to defendant,
forging the checks did not support a restitution award. The
trial court determined that restitution was appropriate and
calculated the restitution it awarded based on the amount
of the two fraudulent checks minus a portion of the funds
that the victim separately received from defendant as par-
tial repayment of the loan.
The state agrees that the requirement of causation
to award restitution is not satisfied here, because the vic-
tim’s monetary losses did not result from the defendant’s
forgeries; rather, the victim’s monetary losses predated the
forgeries and resulted from the loan she provided to defen-
dant. See State v. Gaul, 301 Or App 142, 145, 455 P3d 1016
1
The victim eventually received a portion of the money owed from defendant
and his wife.
574 State v. Elder
(2019), rev den, 366 Or 292 (2020) (“For restitution purposes,
the defendant’s criminal activity must be the reasonably
foreseeable but for cause of the victim’s losses.” (Internal
quotation marks omitted.)). The state concedes that reversal
of the supplemental judgment is appropriate; however, the
state requests that we remand for resentencing to allow the
trial court to determine if it has “other permissible options
that [it] could adopt on resentencing.” State v. Moreno-
Hernandez, 365 Or 175, 191, 442 P3d 1092 (2019); see also
State v. Boza, 306 Or App 279, 281, 473 P3d 1161 (2020)
(reversing judgment imposing restitution and remanding
for sentencing); State v. Tippetts, 239 Or App 429, 432, 244
P3d 891 (2010) (we have “consistently remanded for resen-
tencing in circumstances in which the sentencing court
erred by imposing restitution in the absence of any evidence
of economic damages”). We agree with and accept the state’s
concession, reverse the supplemental judgment imposing
restitution, and remand for resentencing.
Supplemental judgment reversed; remanded for
resentencing; otherwise affirmed.