State v. Jensen ( 2021 )

808
Argued and submitted August 23, 2019, supplemental judgment affirmed
January 27, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
GILBERTO JENSEN,
Defendant-Appellant.
Multnomah County Circuit Court
16CR33051; A167096
480 P3d 296
Defendant appeals from a supplemental judgment holding him jointly and
severally liable for restitution to the victim. On appeal, defendant argues that
the victim did not assert a timely restitution claim because the victim failed to
assert his claim for restitution within 30 days of the date that he “reasonably
should have known” that his constitutional right to restitution had been violated.
ORS 147.515(1). Defendant also argues that the trial court should have appor-
tioned liability for the victim’s damages among defendant and his two codefen-
dants because defendant did not cause the victim’s most serious injuries and the
trial court was required to apportion liability under ORS 31.600. Held: The trial
court did not err. The trial court could have found that the victim reasonably,
although mistakenly, understood that defendant had agreed to extend the 90-day
period for the state to seek restitution, and, thus, the victim’s restitution claim
was timely. Further, the trial court did not err in holding defendant jointly and
severally liable: The trial court could have found that the victim’s damages were
the reasonably foreseeable result of the joint assault on the victim engaged in
by defendant and his codefendants, and ORS 31.600 is inapplicable in this case
given the trial court’s rulings and defendant’s conduct.
Supplemental judgment affirmed.
John A. Wittmayer, Judge.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Greg Rios, Assistant Attorney General.
Cite as 308 Or App 808 (2021) 809
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Kistler, Senior Judge.*
KISTLER, S. J.
Supplemental judgment affirmed.
______________
* Kistler, S. J., vice Armstrong, P. J.
810 State v. Jensen
KISTLER, S. J.
Defendant appeals from a supplemental judgment
holding him jointly and severally liable for approximately
$17,800 in restitution. He argues that the victim did not
assert a timely restitution claim and that, if the claim was
timely, the trial court should have apportioned liability for
the victim’s damages among defendant and his two codefen-
dants. We affirm.
After leaving a concert, the victim and his girl-
friend were walking through a parking lot. As they did
so, three men (defendant, Pleasant, and Burda) assaulted
the victim.1 The victim was hit, thrown to the ground, and
kicked in the head. The state charged the three defendants
with multiple counts of assault. In separate hearings, defen-
dant, Pleasant, and Burda each pled guilty to one count of
third-degree assault.
At defendant’s plea hearing, defendant admitted
that, “while being aided by another person actually present,
[he] knowingly caused physical injury to another person.”
Defendant’s lawyer told the trial court that, although his
client knowingly had caused physical injury to the victim,
defendant had not inflicted the blows that caused the victim’s
most serious injuries, including a traumatic brain injury.
Rather, according to defendant’s lawyer, the other two defen-
dants (Burda and Pleasant) had done so. Defendant’s lawyer
acknowledged that aiding and abetting “is a close call when
[my client] didn’t participate in the actual act [kicking the
victim in the head] that caused the real damage, uhm, but
this was the compromise.” He added, “But you will see in
[the plea petition] that restitution is joint and several.”2 The
trial court accepted defendant’s guilty plea and sentenced
him to 30 days in jail and three years of supervised pro-
bation. The judgment against defendant was entered on
January 31, 2017.
1
A fourth man was also present. However, he was not found after the
assault, and there was no specific evidence regarding the extent, if any, of his
involvement.
2
The plea petition states that defendant understood that the district attor-
ney was recommending “Restitution J & S w/ Co-∆.”
Cite as 308 Or App 808 (2021) 811
Burda and Pleasant also pled guilty and were sen-
tenced to 30 and 36 months in jail respectively. Additionally,
Burda and Pleasant each agreed to pay a $5,000 compensa-
tory fine to the victim. All three defendants were sentenced,
and restitution was left open in all three cases for 90 days
after the entry of the judgments. See ORS 137.106(1) (pro-
viding that evidence of the nature and amount of a victim’s
damages shall be presented to a trial court within 90 days
after the entry of judgment, unless that period is extended
for good cause). On April 27, 2017, within 90 days of the date
that judgment was entered in defendant’s case, the victim’s
lawyer sent the attorneys for all three defendants a packet
of restitution documents.
No restitution hearing was held within 90 days after
the judgments were entered against the three defendants.
Rather, the deputy district attorney initially assigned to the
case, the victim’s attorney, and the attorneys for the three
defendants engaged in “prolonged discussions [over several
months] regarding a stipulated restitution amount and
settling any additional civil claims.” At some point during
those discussions, a different deputy district attorney was
assigned to the case. The parties’ discussions reached an
impasse near the end of 2017. On November 16, 2017, the
state sought a consolidated restitution hearing, which the
trial court set for December 8, 2017.
On December 1, 2017, the state filed a motion and
memorandum in support of restitution in which it stated
that it “anticipate[d] that one or more defendants will chal-
lenge the re-opening of restitution after 90 days has passed.”
However, the state observed that, under State v. Thompson,
257 Or App 336, 306 P3d 731, rev den, 354 Or 390 (2013),
the trial court could consider the victim’s right to restitution
under Article I, section 42, of the Oregon Constitution inde-
pendently from the state’s statutory authority to establish
the amount of restitution within 90 days of the entry of judg-
ment. The state took the position that the victim had sus-
tained economic damages of $27,811.48, primarily for past
and future medical bills resulting from the assault.
Three days later, on December 4, 2017, defendant
filed a restitution memorandum in which he asserted that
812 State v. Jensen
any constitutional restitution claim asserted by the victim
would be untimely.3 Defendant appeared to take the position
that the victim’s 30-day period for asserting his constitu-
tional right to restitution began to run immediately after
the state’s 90-day period for seeking restitution lapsed at the
end of April 2017. Because the victim had not asserted a con-
stitutional right to restitution within that 30-day period—
namely, before the end of May 2017—defendant concluded
that any constitutional restitution claim asserted by the vic-
tim would be time barred. Alternatively, defendant argued
that Burda and Pleasant had been directly responsible for
the victim’s most serious injuries, which had occurred while
the victim was on the ground, and that defendant had only
“thr[own] arm punches” at the victim while he was stand-
ing. It followed, defendant argued, that he should be held
liable only for the injuries he caused.
We set out in greater detail below the evidence and
arguments that the parties offered at the restitution hearing
on those two issues, as well as the trial court’s rulings. It is
sufficient to note at this point that the trial court disagreed
with both arguments that defendant raised and imposed
joint and several liability on each of the three defendants
for $17,811.14 in restitution—the full amount of the vic-
tim’s damages ($27,811.14) less the total compensatory fines
($10,000) that Burda and Pleasant had already paid.
On appeal, defendant assigns error to the trial
court’s ruling that the victim’s constitutional claim was
timely, as well as its ruling that defendant was liable for
all the victim’s damages. We begin with the timeliness of
the victim’s claim. On that issue, defendant recognizes that
the victim has a constitutional right to seek restitution if
the state failed to seek restitution under ORS 137.106 in a
timely fashion. See Thompson, 257 Or App at 344-45. He
notes, however, that ORS 147.515(1) required the victim to
inform the court that he was asserting his constitutional
right to restitution “within 30 days of the date the victim
knew or reasonably should have known of the facts sup-
porting [a violation of the victim’s right to restitution under
3
Burda and Pleasant did not challenge the timeliness of either the state’s
statutory or the victim’s constitutional restitution claim.
Cite as 308 Or App 808 (2021) 813
Article I, section 42].” On appeal, defendant does not appear
to dispute that the victim asserted his constitutional resti-
tution claim within 30 days of the date that the victim actu-
ally knew that the state had failed to seek restitution in a
timely fashion. He argues, however, that the victim failed to
assert his claim within 30 days of the date he “reasonably
should have known” of the state’s failure.
As we explain below, we question whether defen-
dant preserved the constructive knowledge issue that he
raises on appeal. However, even if he did, the trial court
reasonably could have found, based on the evidence at the
restitution hearing, that the victim informed the trial court
of his constitutional restitution claim within 30 days of the
date that he knew or reasonably should have known that his
constitutional rights had been violated. We first set out the
evidence and the arguments offered at the restitution hear-
ing on that issue. We then turn to whether defendant pre-
served the constructive knowledge claim he raises on appeal
and, if he did, whether the victim’s claim was timely.
At the restitution hearing, the victim’s attorney
explained that defendant’s restitution memorandum, filed
four days before the December 8 hearing, was the first time
that the victim was aware that defendant had not agreed
to extend the 90-day period for establishing the amount of
restitution. Defendant responded that the victim’s position
“puts a completely different light on [defendant’s] statutory
argument” under ORS 147.515. The trial court agreed. It
observed, “If [the victim is] correct about that, then there’s
no issue, is there, it’s not too late? Because they have not
blown any time line.” Defendant agreed, “Right, it would—
potentially would only leave the causation but for test.”
With the issue framed that way, the deputy district
attorney told the court that, when he inherited the case
from his predecessor, he understood that defendant “was
similarly situated to these other two defendants [Pleasant
and Burda] who had essentially agreed to keep [restitution]
open.” 4 The deputy district attorney explained that “it was
4
Neither Burda nor Pleasant disputed the deputy district attorney’s state-
ment that they had agreed to keep restitution open.
814 State v. Jensen
never made clear to [him] that the 90 days was not extended
as to [defendant].”5 As a result, he never notified the victim
or the victim’s attorney that defendant had not agreed to
keep restitution open while the parties sought to settle all
three defendants’ liability for restitution and civil damages.
The victim’s attorney confirmed the deputy district
attorney’s statements. He advised the court that he had sent
a packet of restitution documents to the attorneys for all
three defendants on April 27, 2017, and that, until defendant
filed his restitution memorandum on December 4, 2017, no
one had put him on notice that the state was time barred
from seeking restitution from defendant. As the victim’s
attorney explained, “It was the restitution memorandum
filed on behalf of [defendant] that first notified me * * * two
or three days ago * * * that there was any issue as to whether
or not the time for determining restitution had—had or had
not been extended.”
When asked for his response, defendant’s attorney
observed initially that Thompson had not decided the time-
liness of the victim’s constitutional claim because the defen-
dant in Thompson had not raised that issue. The trial court
noted that, while defendant’s observation about Thompson
was correct, the victim’s position in this case was “that the
30 day period in ORS 147.515 beg[an] to run about two or
three days ago.” The court said, “that’s the dispositive issue
for today, isn’t it,” and defendant’s attorney agreed that it
was. The only information that defendant’s attorney added
to the mix was that he did not “control what the DA is tell-
ing to a victim or a victim’s attorney.” He also stated that
he knew that the state’s 90-day period for seeking restitu-
tion had lapsed in April and that the victim’s attorney sent
him an email with a packet of restitution information on
April 27.
Given that information, the trial court ruled
that the victim first received notice a few days before the
5
The statements offered by the attorneys for the state, the victim, and the
defendant were not made under oath at the restitution hearing. However, no
party has objected, either at trial or on appeal, to the trial court’s considering the
attorneys’ unsworn statements in deciding whether the victim’s constitutional
claim was timely.
Cite as 308 Or App 808 (2021) 815
December 8, 2017, hearing that defendant had not agreed
to extend the 90-day period. As a result, the trial court con-
cluded that the victim had asserted a timely constitutional
restitution claim. On appeal, defendant does not appear
to dispute that the victim did not actually know, until he
received defendant’s December 4 restitution memorandum,
that the 90-day period for the state to establish the amount
of restitution owed had not been extended by agreement. He
argues, however, that the victim “should have known” long
before then that the 90-day period had expired.
Defendant never raised the issue of constructive
knowledge with the trial court that he seeks to raise on
appeal. Rather, when the trial court observed that “the dis-
positive issue for today” is whether “the 30 day period in
ORS 147.515 beg[an] to run about two or three days ago,”
defendant agreed. He did not argue that the dispositive
issue was whether the victim “should have known” that the
30-day period had begun to run months earlier. In our view,
defendant failed to preserve the issue of constructive knowl-
edge at the restitution hearing that he raises on appeal.
If, however, defendant adequately raised the issue of
constructive knowledge at the restitution hearing, then the
trial court implicitly resolved that issue against him. The
question accordingly reduces to whether there was evidence
before the trial court to support its ruling. See Kaseberg v.
Davis Wright Tremaine, LLP, 351 Or 270, 281-82, 265 P3d
777 (2011) (explaining that, when the evidence permitted
competing inferences regarding when the plaintiff should
have known that his lawyer had been deficient and that his
cause of action had accrued, the issue should go to the trier
of fact); Keller v. Armstrong World Industries, Inc., 342 Or
23, 37-38, 147 P3d 1154 (2006) (applying the same standard
in product liability cases).6
In this case, the deputy district attorney explained
that all three defendants had negotiated settling restitution
6
The court explained in Keller that, because the statute of limitations is an
affirmative defense, the party asserting that defense has the burden of produc-
tion and persuasion on that issue. 342 Or at 38 n 12. It follows that, if there is
no information on a relevant issue, then the absence of evidence cuts against the
party asserting a limitations defense. Id.816 State v. Jensen
and civil liability up until late 2017 and that he understood,
incorrectly it turned out, that defendant had agreed to
extend the 90-day period, just as Burda and Pleasant had
done. Accordingly, he did not advise the victim or his attor-
ney that the statutory 90-day period for seeking restitution
had not been extended as to defendant.
Given that evidence, the trial court reasonably
could have found that the deputy district attorney in this
case stood in a similar relationship to the victim as the
lawyer stood to the plaintiff in Kaseberg; that is, the victim
and his lawyer reasonably could rely on the deputy district
attorney to inform them about the status of restitution in
the criminal case. Additionally, the trial court reasonably
could have found that the deputy district attorney had not
told the victim that defendant had not agreed to extend the
90-day statutory deadline. Finally, the court could have
found that, in light of defendant’s continued participation in
the settlement discussions up through late 2017, neither the
victim nor his attorney had any reason to question whether
defendant had agreed to extend, as Pleasant and Burda had
done, the 90-day period for seeking restitution.7 It follows
that the trial court could have found that the victim rea-
sonably understood up until late 2017 that the state had
good cause—namely, defendant’s agreement—to extend the
90-day period. See State v. Taylor, 300 Or App 626, 636, 455
P3d 609 (2019), rev den, 366 Or 493 (2020) (recognizing that
a defendant’s agreement can provide good cause for extend-
ing the 90-day period).
We note that the issue in this case is not whether
the deputy district attorney had good cause to extend the
90-day period for seeking restitution from defendant. Rather,
the question is whether the victim reasonably should have
7
At first blush, it might seem unusual that defendant would have contin-
ued to participate in the settlement discussions through late 2017 if the 90-day
period for the state to seek restitution had lapsed as to defendant in April and,
in defendant’s view, the 30-day period for asserting a constitutional restitution
claim had lapsed in May. However, the settlement discussions sought to resolve
all the defendants’ liability for restitution and civil damages. Even if defendant’s
obligation to pay restitution had lapsed, the trial court reasonably could have
found that the prospect of resolving civil liability provided defendant with a suf-
ficient incentive to continue participating in the settlement discussions without
mentioning to anyone that, in his view, he was no longer liable for restitution.
Cite as 308 Or App 808 (2021) 817
known that the district attorney lacked good cause to extend.
For the reasons explained above, the trial court could find
that the victim had no reason to think that defendant had
not agreed, as Burda and Pleasant had done, to extend the
90-day period for presenting restitution evidence.
Perhaps the victim was on inquiry notice when the
state filed its December 1, 2017, memorandum in which it
noted that one or more of the defendants might argue that the
90-day period for seeking restitution had expired. However,
the record created at the restitution hearing did not require
the trial court to find that defendant should have known
that the 90-day period had expired before the state filed its
memorandum on December 1, and the victim informed the
trial court of his constitutional claim for restitution at the
December 8 hearing, well within the 30-day period provided
in ORS 147.515. On this record, the trial court reasonably
could have found that the victim’s constitutional restitution
claim was timely.
Defendant also assigns error to a second ruling. He
argues that the trial court erred in imposing restitution on
him for all the damages that the victim suffered. He con-
tends initially that his conduct did not cause the victim’s
most serious injuries. Alternatively, he argues that the trial
court should have apportioned liability among the three
defendants under ORS 31.600 based on each defendant’s
respective fault. We note, as an initial matter, that those
two arguments raise separate issues. One seeks to limit lia-
bility based on causation. The other seeks to limit responsi-
bility of the injuries that all three defendants jointly caused
based on each defendant’s respective fault. We begin with
defendant’s causation argument.
At the restitution hearing, the victim testified to
the events surrounding the assault. He explained that, as
he was walking through a parking lot after the concert, he
“heard running behind [him].” He turned and saw Pleasant,
whom he knew, and two other men, whom he did not know.
The two men grabbed his arms while Pleasant began hit-
ting him. The victim explained that, “as [Pleasant] was
punching me, they all dragged me up to like a car hub-
cap. And then, you know, while I was there on the ground,
818 State v. Jensen
they pretty much all just started kicking me in the head.”
When asked whether they were “all * * * actively engaged
in assaulting [him],” the victim answered, “Yes.” He said,
“They were standing in front of me before I—I mean, I think
it was probably like after getting hit, like kicked for a while,
I blacked out probably after like fifteen seconds.”
Defendant painted a different picture. His lawyer
noted that, according to Pleasant, Pleasant and Burda had
attacked the victim while the victim was on the ground but
that Pleasant was “unsure” if defendant “was involved at
all.”8 Defendant’s lawyer also noted that an independent
witness had said that two people had attacked the victim
while he was on the ground but that three men had run
away together. Finally, defendant’s attorney stated that
his client had admitted throwing “some arm punches in
the fight” but added that defendant said he had intervened
to stop the “ground assault, and we all got the hell out of
there.” After considering that evidence, the trial court ruled
that the three defendants were joint tortfeasors and held
them jointly and severally liable for all the damages that
the victim had suffered.
A criminal defendant is liable in restitution for all
the economic damages that “result from” the defendant’s
crime. State v. Ramos, 358 Or 581, 587, 368 P3d 446 (2016)
(paraphrasing ORS 137.106(1)). As the court explained in
Ramos, the legislature’s use of the word “result” in ORS
137.106 means that a defendant is liable for restitution for
only those damages that are reasonably foreseeable. Id. at
596. As we understand defendant’s argument on appeal,
he does not challenge the legal standard that the trial
court applied in determining whether his criminal acts
were causally connected to the victim’s injuries. Rather,
he argues, apparently as a matter of law, that the evidence
did not permit a reasonable inference that defendant’s
actions resulted in the more serious injuries that the victim
suffered.
8
Defendant did not call any witnesses at the restitution hearing. Rather, the
parties agreed that defendant’s lawyer could summarize the police report and
statements that Burda and Pleasant had made and that the trial court would
consider them as evidence.
Cite as 308 Or App 808 (2021) 819
We disagree for two reasons. First, the trial court
reasonably could have credited the victim’s statement that
“they pretty much all just started kicking me in the head”
while he was on the ground in finding that all three defen-
dants were jointly and severally liable for all the victim’s
injuries. (Emphasis added.) Although defendant argued that
the evidence showed that he did not do anything other than
throw a few arm punches at the victim while he was stand-
ing, the trial court was not required to credit the defendant’s
minimization of his own acts or discredit the victim’s testi-
mony that all the defendants were kicking him in the head.
Second, even if only Burda and Pleasant inflicted
the more serious injuries once the victim was on the ground,
the trial court reasonably could have found that their acts
were the reasonably foreseeable result of the joint assault
that all three defendants began. This is not a case in which
defendant failed to take reasonable steps to protect the vic-
tim from a criminal assault by an unknown third party
that he reasonably should have foreseen. Cf. Piazza v. Kelim,
360 Or 58, 83-84, 377 P3d 492 (2016) (explaining that the
complaint stated a claim that a business owner reasonably
should have foreseen that, based on the nature and history
of assaults in the area, its patrons would be subject to vio-
lent assaults from unknown assailants); Panpat v. Owens-
Brockway Glass Container, 188 Or App 384, 392-93, 71 P3d
553 (2003) (discussing when a defendant reasonably can
foresee the likelihood of criminal conduct by a third party).
Rather, this is a case in which defendant jointly
began an assault on the victim, making the victim vul-
nerable to further harm from his two codefendants. Cf.
Cunningham v. Happy Palace Inc., 157 Or App 334, 339, 970
P2d 669 (1998), rev den, 328 Or 365 (1999) (holding that,
having ejected an intoxicated patron from its restaurant,
the defendant put the victim in a vulnerable position and
reasonably should have foreseen the likelihood of a crim-
inal assault by an unknown third person). Moreover, the
persons who, according to defendant, inflicted the most
serious injuries on the victim were not some unknown
hypothetical assailants. They were the very persons with
whom defendant had jointly begun the assault on the vic-
tim, and defendant was aware that Pleasant was motivated,
820 State v. Jensen
for some undisclosed reason, to injure the victim. It should
have come as no surprise to defendant that, once the victim
was rendered helpless on the ground, Pleasant and Burda
would continue the assault that defendant and his two code-
fendants had begun. It follows that, even if Pleasant and
Burda (but not defendant) continued to assault the victim
once he was on the ground and inflict more serious injuries,
the trial court could find that their actions (and all the vic-
tim’s damages) were the reasonably foreseeable result of the
joint assault that defendant began.9
On appeal, defendant raises a related but separate
issue. He argues that the trial court should have appor-
tioned liability according to each defendant’s comparative
fault under ORS 31.600. Defendant’s lawyer, however, asked
the court to limit his client’s liability based on causation.
He never asked the court to apportion liability based on
comparative fault. Indeed, defendant’s lawyer told the trial
court that comparative fault did not apply to restitution.
Specifically, he told the trial court that restitution is “not,
in my limited understanding of the civil law, it’s not com-
parative negligence like a car accident.” It thus appears that
defendant conceded the comparative fault issue at trial that
he now seeks to raise on appeal. Moreover, apportionment
based on fault under ORS 31.600 applies only if liability
is several. See ORS 31.610(2) (providing that comparative
fault applies where liability is several). Here, the trial court
ruled, and defendant apparently agreed, that liability was
joint and several. See 308 Or App at 820 n 9. Finally, defen-
dant acted with a degree of culpability “greater than what
the common law considered to be ‘gross negligence.’ ” See
State v. Gutierrez-Medina, 365 Or 79, 84, 442 P3d 183 (2019).
He admitted at his plea hearing that “while being aided by
9
We note that there is an internal tension in defendant’s causation argu-
ment. Defendant’s attorney told the trial court at the plea hearing that liability
for restitution would be joint and several, and defendant’s attorney did not take
issue with the victim’s attorney’s statement at the beginning of the restitution
hearing that all three defendants agreed that liability for restitution would be
joint and several. If defendant agreed that liability was joint and several, he can
hardly argue that he was not liable for all the damages that the three defendants
inflicted on the victim. Defendant may have a claim for contribution against his
two codefendants, but being jointly and severally liable made defendant respon-
sible to the victim for the entire amount that each of the three defendants owed
him.
Cite as 308 Or App 808 (2021) 821
another person actually present, [he] knowingly caused
physical injury to another person.” Having admitted that
he acted knowingly, defendant cannot rely on comparative
fault to limit his liability. See id. at 83-84, 94.
Supplemental judgment affirmed.