State v. Skeen ( 2021 )

288
Argued and submitted February 28, 2020; restitution award reversed in part,
remanded for resentencing, otherwise affirmed February 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ZANE STERLING SKEEN,
Defendant-Appellant.
Klamath County Circuit Court
1300498CR; A168647
481 P3d 402
Defendant was convicted of first-degree manslaughter, ORS 163.118, and
ordered to pay $15,285 in restitution to the victim’s family. The restitution items
generally fell into two categories: (1) lost wages and expenses incurred by the vic-
tim’s family members related to handling the victim’s estate, and (2) lost wages
and expenses incurred by the victim’s family members related to defendant’s
criminal prosecution. On appeal, defendant challenges the restitution award.
Held: As to the first category of restitution, defendant’s current claim of error
was not adequately preserved, and any error is not plain, so that portion of the
order is affirmed. As to the second category of restitution, the trial court did not
err in ordering defendant to pay restitution for lost wages and expenses for two
family members to attend defendant’s sentencing hearing to give victim impact
statements. However, the court otherwise erred in ordering defendant to pay res-
titution for lost wages and expenses related to defendant’s criminal prosecution.
Restitution award reversed in part; remanded for resentencing; otherwise
affirmed.
Cameron F. Wogan, Judge.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
Cite as 309 Or App 288 (2021) 289
AOYAGI, J.
Restitution award reversed in part; remanded for resen-
tencing; otherwise affirmed.
290 State v. Skeen
AOYAGI, J.
Defendant appeals an amended judgment of convic-
tion for first-degree manslaughter, ORS 163.118, arguing
that the trial court erred in ordering him to pay $15,285
in restitution to the victim’s family. We conclude that the
court erred in ordering restitution for certain lost wages and
expenses incurred by the victim’s family members related
to defendant’s criminal prosecution. We reject defendant’s
other arguments. Accordingly, we reverse in part, remand
for resentencing, and otherwise affirm.
In reviewing a restitution award, we review the
trial court’s legal conclusions for legal error and its factual
findings for any evidence. State v. Jordan, 249 Or App 93,
96, 274 P3d 289, rev den, 253 Or 103 (2012). “We review the
evidence supporting the trial court’s restitution order in the
light most favorable to the state.” State v. Kirkland, 268 Or
App 420, 421, 342 P3d 163 (2015).
Defendant was convicted of first-degree manslaugh-
ter, ORS 163.118, and ordered as part of his sentence to pay
restitution to the victim’s family.1 See State v. Plagmann/
Samora, 304 Or App 785, 787-88, 469 P3d 288 (2020) (dis-
cussing crime victims’ entitlement to restitution for economic
damages caused by defendants’ crimes). Although the crime
occurred in February 2013, defendant was not convicted until
November 2017, and the restitution hearing took place in July
2018. At the restitution hearing, the state sought $17,785 in
restitution for economic damages incurred by nine of the vic-
tim’s family members between February 2013 and November
2017. The requested restitution generally fell into two cate-
gories: (1) lost wages and expenses related to handling the
victim’s estate, such as retrieving property from the victim’s
home, cleaning the victim’s home, and closing the victim’s
utility accounts, and (2) lost wages and expenses related to
defendant’s criminal prosecution, including attending defen-
dant’s arraignment, scheduling, preliminary, plea, and sen-
tencing hearings, and meeting with the district attorney.2
1
Defendant was also ordered to pay $1,725 in restitution to the Criminal Injuries
Compensation Account, related to cremation costs, which he does not challenge.
2
In their briefing, the parties make no distinction between attending crim-
inal hearings and meeting with the district attorney. Like the parties, we there-
fore address all of those expenses together as prosecution-related expenses.
Cite as 309 Or App 288 (2021) 291
It is the state’s burden to prove that a victim is enti-
tled to restitution. Id. at 788 (“When restitution is sought,
the state has the burden of proving (1) criminal activities,
(2) economic damages, and (3) a causal relationship between
the two.” (Internal quotation marks omitted.)). Here, to meet
that burden, the state called as a witness the victim’s sister
Greear, who had compiled a two-page spreadsheet of dates
and expenses that was admitted into evidence. Greear
explained that she had compiled the spreadsheet recently,
when the family learned about the possibility of restitution,
and she explained how she compiled it. A limited number of
receipts were also admitted. Greear acknowledged one “mis-
take” on the spreadsheet, which was a $2,500 line item for
lost wages for family members related to estate handling,
which included lost wages for a family member who was
actually retired. As for defendant’s criminal proceedings,
Greear testified that she and other family members trav-
elled to attend hearings or to meet with the district attorney,
and the requested restitution amount included lost wages
and travel, lodging, and food expenses for those trips. The
family relied on advice from the Crime Victim Advocate and
the district attorney’s office in deciding whether to attend
hearings. No family members were subpoenaed to any hear-
ings. And, except for two family members who gave victim
impact statements at defendant’s sentencing hearing, no
family members participated in any hearings.
At the end of the restitution hearing, and over var-
ious objections by defendant, the trial court ordered defen-
dant to pay $15,285 in restitution to the victim’s family. That
is, it ordered the full amount requested, less $2,500 due to
the mistake in the spreadsheet acknowledged by Greear.
On appeal, defendant raises four overlapping assign-
ments of error, which reduce to challenging the restitution
award as it pertains to lost wages and expenses incurred by
family members (1) related to handling the victim’s estate,
and (2) related to defendant’s criminal prosecution.
With respect to the first issue, we agree with
the state that defendant’s current claim of error was not
adequately preserved and that any error was not plain.
See ORAP 5.45(1) (“No matter claimed as error will be
292 State v. Skeen
considered on appeal unless the claim of error was pre-
served in the lower court and is assigned as error in the
opening brief in accordance with this rule, provided that
the appellate court may, in its discretion, consider a plain
error.”); State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013) (“For an error to be plain error, it must be an error of
law, obvious and not reasonably in dispute, and apparent on
the record without requiring the court to choose among com-
peting inferences.”); see also Jordan, 249 Or App at 97, 99,
102 (demonstrating application of preservation requirement
to various appellate challenges to a restitution award). We
therefore reject defendant’s arguments on the first issue and
write only to address the second issue.
Defendant assigns error to the trial court’s award
of $5,180 in restitution to the victim’s family for lost wages
and travel, lodging, and food expenses related to defendant’s
criminal prosecution. Defendant argues that such amounts
are not recoverable, because no family members were sub-
poenaed to testify or otherwise required to attend. He argues
that, under well-settled law, expenses to voluntarily attend
a criminal prosecution are not recoverable in criminal res-
titution. In response, the state argues that restitution is not
necessarily limited to subpoenaed witnesses.
Crime victims are entitled to restitution for “eco-
nomic damages” caused by a defendant’s crime. ORS
137.106(1)(a); see also Or Const, Art I, § 42(1)(d) (a crime vic-
tim has “[t]he right to receive prompt restitution from the
convicted criminal who caused the victim’s loss or injury”).
“Economic damages” has “the meaning given that term in
ORS 31.710,” except that it excludes future impairment of
earning capacity. ORS 137.103(2)(a). Thus, for restitution
purposes, “economic damages” means
“objectively verifiable monetary losses including but not
limited to reasonable charges necessarily incurred for med-
ical, hospital, nursing and rehabilitative services and other
health care services, burial and memorial expenses, loss
of income and past * * * impairment of earning capacity,
reasonable and necessary expenses incurred for substitute
domestic services, recurring loss to an estate, damage to
reputation that is economically verifiable, reasonable and
necessarily incurred costs due to loss of use of property and
Cite as 309 Or App 288 (2021) 293
reasonable costs incurred for repair or for replacement of
damaged property, whichever is less.”
ORS 31.710(2)(a). Ultimately, “for the purposes of the res-
titution statutes, ‘economic damages’ are objectively verifi-
able out-of-pocket losses that a person could recover against
the defendant in a civil action arising out of the defendant’s
criminal activities.” State v. Herfurth, 283 Or App 149, 154,
388 P3d 1104 (2016), rev den, 361 Or 350 (2017).
In State v. Ramos, 358 Or 581, 600, 602, 368 P3d
446 (2016), the Supreme Court held that a victim’s expenses
related to providing grand jury and trial testimony were
recoverable in criminal restitution as economic damages, by
analogy to litigation expenses incurred with a third party
due to a defendant’s tortious conduct, without any mention
of subpoenaes. More recently, in State v. Nichols, 306 Or App
189, 201, 473 P3d 1145 (2020)—a decision that relies heavily
on Ramos but that was published after submission of this
case—we held that a trial court did not err in awarding res-
titution to a theft victim for her lost wages to attend the
defendant’s sentencing hearing, because she participated
in that hearing by giving a victim impact statement, but
that it did err in awarding restitution for her lost wages to
attend two pretrial hearings, because she did not partici-
pate in those hearings and her attendance was voluntary
rather than necessary.
Applying the same reasoning here, we conclude that
the trial court did not err in ordering defendant to pay resti-
tution for the lost wages of the two family members who gave
victim impact statements at defendant’s sentencing hearing.
Such losses are recoverable in restitution under Ramos and
Nichols, or at least defendant has not identified any basis to
distinguish this situation from Nichols.3 Id. at 201. To the
extent that defendant relies on certain pre-Ramos decisions
3
Similar to the defendant in Nichols, defendant does not contest that the
family members’ giving of victim impact statements was caused by his criminal
activity, in the “but for” sense, and was a reasonably foreseeable result of his
criminal activity. See Ramos, 358 Or at 603 (regarding causation and foresee-
ability requirements); Nichols, 306 Or App at 199 n 4 (expressing no opinion on
causation or foreseeability where they were not contested). Defendant also does
not argue for any distinction between a victim impact statement given by a direct
victim (such as the theft victim in Nichols) and one given by a deceased victim’s
family member (as in this case).
294 State v. Skeen
as support for his position that restitution may be ordered
for lost wages only when a person is subpoenaed—see, e.g.,
State v. Choat, 251 Or App 669, 671, 284 P3d 578, rev den,
352 Or 666 (2012) (“It is undisputed (and undisputable) that
the witness’s airfare and hotel expenses are not ‘economic
damages’ under ORS 31.710(2)(a) and therefore cannot law-
fully be imposed as restitution.”); State ex rel Juv. Dept. v.
S. J. P., 247 Or App 698, 705, 271 P3d 124 (2012) (conclud-
ing that airfare expenses incurred by the victim to testify
voluntarily, without a subpoena, were not “economic dam-
ages,” where the state “ha[d] not identified, and we [we]re
not aware of, any theory of civil liability” that would permit
recovery)—those decisions either are factually distinguish-
able or were implicitly overruled by Ramos.
Relatedly, the trial court did not err in ordering
defendant to pay restitution for travel, lodging, and food
expenses incurred by the two family members to attend
the sentencing hearing to give victim impact statements.
In the trial court, defendant challenged hearing-related
expenses, like lost wages, solely on the basis that no family
members were subpoenaed. On appeal, he continues to treat
lost wages, travel expenses, and lodging expenses as the
same for restitution purposes, arguing only that the fam-
ily members had to be subpoenaed or otherwise required
to attend to recover such expenses. That narrow argument
fails under Nichols. As for food expenses, defendant makes a
new argument on appeal, which is that the trial court erred
in ordering restitution for food expenses because there is no
evidence that the family members incurred any greater food
expenses while travelling than they would have at home.
That argument may be well-taken, but it is unpreserved,
and, given the lack of case law directly on point, we are
unprepared to say that it was plain error to award restitu-
tion for food expenses. Under the circumstances, given what
was argued in the trial court and what is argued on appeal,
we will not disturb the restitution award as it pertains to
travel, lodging, and food expenses incurred by the two fam-
ily members to attend the sentencing hearing to give victim
impact statements. To the extent there was error in that
regard, it either was not preserved or has not been identified
on appeal.
Cite as 309 Or App 288 (2021) 295
We agree with defendant, however, that the trial
court erred in ordering restitution for lost wages and
expenses incurred by family members to attend defendant’s
arraignment, scheduling, preliminary, and plea hearings;
to meet with the district attorney; and to attend defendant’s
sentencing hearing for reasons other than to give a victim
impact statement (such as to support other family members).
The victim’s family members were certainly free to attend
hearings in which they were not participating, or to meet
with the district attorney, and might understandably have
wanted to do so. Their doing so was voluntary rather than
“necessary,” however, and such expenses are not recoverable
in restitution. Nichols, 306 Or App at 201.
To summarize, the trial court erred by including
in the restitution award to the victim’s family (1) lost wages
and expenses for family members to attend defendant’s
arraignment, scheduling, preliminary, and plea hearings,
and to meet with the district attorney; and (2) lost wages and
expenses for family members to attend defendant’s sentenc-
ing hearing, except for the two family members who gave
victim impact statements. Having determined that a por-
tion of the restitution award is erroneous, the parties agree
that the correct disposition is to reverse and remand so that
the trial court may recalculate the restitution amount.
Restitution award reversed in part; remanded for
resentencing; otherwise affirmed.