Summary
concluding that restitution for cost of CARES Northwest evaluation was erroneous under State v. Moreno-Hernandez , 365 Or. 175, 442 P.3d 1092, and other cases
Summary of this case from State v. Martinez-MateoOpinion
A163555
09-11-2019
STATE of Oregon, Plaintiff-Respondent, v. Juan Manuel REYES, Defendant-Appellant.
Meredith Allen, 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. Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Meredith Allen, 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.
Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.
Mooney, J., vice Garrett, J. pro tempore.
MOONEY, J. Defendant appeals a judgment of conviction and a supplemental judgment. The supplemental judgment imposed a $100 compensatory fine and restitution payable to the child-victims’ insurance company for costs paid to CARES Northwest (CARES), which conducted child abuse evaluations of the victims. Under the Supreme Court’s opinion in State v. Moreno-Hernandez , 365 Or. 175, 442 P.3d 1092 (2019), and this court’s opinion in State v. White , 299 Or. App 165, 449 P.3d 924 (2019), both decided after the trial court entered the restitution judgment, we agree with defendant that the restitution award was legally erroneous. We therefore reverse the supplemental judgment, remand for resentencing, and otherwise affirm.
Defendant pleaded guilty to sexually abusing four minors. As relevant to this appeal, two of those victims were evaluated at CARES, which included physical examinations and forensic interviews. The trial court ordered defendant to pay $6,700.40 in restitution to the victims’ insurance company, HealthShare/Providence CCO, for the costs it paid to CARES for the evaluations.
Defendant was convicted of two counts of first-degree sodomy, ORS 163.405, two counts of first-degree rape, ORS 163.375, six counts of first-degree sexual abuse, ORS 163.427, four counts of second-degree sexual abuse, ORS 163.425(1)(a), and five counts of third-degree sexual abuse, ORS 163.415.
On appeal, defendant advances two arguments. First, he contends that the restitution order was improper because the evaluations were investigatory in nature as opposed to medical and, therefore, were not recoverable because "a court may not award restitution for the cost of investigating that criminal activity, if the expense is part of the ordinary operating expenses" of the entity seeking restitution. Second, defendant contends that the restitution order was improper because the state did not prove that the victims "necessarily incurred" the costs of the evaluations under ORS 137.106 and ORS 31.710(2)(a). Recently, in White , 299 Or. App. at 168, 449 P.3d 924, we relied on the Supreme Court’s decision in Moreno-Hernandez to conclude that the trial court erred in awarding restitution to an insurance company for the costs paid to CARES for treatment of an unemancipated minor. We explained that
ORS 137.106(1)(a), provides, in part, that, "[i]f the court finds from the evidence presented that a victim suffered economic damages , ***, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages." (Emphases added.) "Economic damages" are "objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services ***." ORS 31.710(2)(a) (emphasis added).
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"the medical expenses of an unemancipated minor child are not damages suffered by the child but, instead, are damages suffered by the child’s parents. Moreno-Hernandez , 365 Or. at 189 . The upshot of that holding is that an unemancipated minor who claims only medical expenses as damages as a result of a defendant’s conduct does not qualify as a ‘victim’ under ORS 137.103(4)(a). See id. ; State v. Toth , 365 Or. 169, 172-73, 442 P.3d 1089 (2019) (minor child did not qualify as ‘victim’ within meaning of ORS 137.103(4)(a) because, under Oregon law, medical expenses of an unemancipated minor—the only damages claimed to have been suffered by the child—are the damages suffered by the child’s parents, not the child). That is because, by the plain terms of ORS 137.103(4)(a), a person is not a ‘victim’ within the meaning of that provision unless the person (1) is the one against whom defendant committed the crime and (2) incurred economic damages as a result."
White , 299 Or. App at 168-69, 449 P.3d 924.
A child’s insurance company in that situation is likewise not a victim. For an insurance company to qualify as a victim that is entitled to restitution under ORS 137.103(4)(d), it must "expend[ ] moneys on behalf of a victim" as defined in ORS 137.103(4)(a). It follows that, because the unemancipated child is not a "victim" within the meaning of paragraph (a) of the statute, a child’s insurance company has not expended money on behalf of a qualifying victim for purposes of paragraph (d).
For the reasons explained in White , even assuming that it is correct to view the costs of the evaluations as medical expenses, the trial court erred in awarding restitution to HealthShare/Providence CCO. And for the reasons explained in Moreno-Hernandez and White , we reverse and remand for further proceedings, because the trial court may have other permissible options available to it. Moreno-Hernandez , 365 Or. at 190-91, 442 P.3d 1092 ; White , 299 Or. App. at 169, 449 P.3d 924.
Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.