Opinion
A172804
09-09-2021
STATE of Oregon, Plaintiff-Respondent, v. Ronald Cody TRAVERS, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, 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.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, 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 Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
PER CURIAM After a motor vehicle crash, defendant was convicted of fourth-degree assault and, as part of his sentence, was ordered to pay $13,621.62 in restitution to a victim's insurance company. Defendant appeals the supplemental judgment, assigning error to the restitution order as it pertains both to medical expenses ($5,937.18) and to vehicle replacement costs ($7,684.44). We review restitution orders for errors of law and are bound by any factual findings supported by evidence in the record. State v. McClelland , 278 Or. App. 138, 141, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016).
Regarding medical expenses, the state concedes that the trial court erred in imposing restitution on the existing record, because it does not establish the reasonableness of those expenses. See id. at 143, 372 P.3d 614 (recognizing that the state must establish that a victim's medical expenses are "reasonable charges necessarily incurred" to support a restitution award). We agree with the parties' assessment of the record, accept the state's concession on medical expenses, and reverse the supplemental judgment as to that portion of the restitution order.
Regarding vehicle replacement costs, the situation is more complicated, because the state purports to concede an error that defendant does not claim in his opening brief. Defendant's legal challenge to the order of restitution for the victim's vehicle replacement costs is that the state failed to prove that those costs were caused by defendant's criminal activity. See State v. Andrews , 366 Or. 65, 69, 456 P.3d 261 (2020) (" ORS 137.106 requires an award of restitution when three prerequisites are met: (1) criminal activities; (2) economic damages; and (3) a causal relationship between the two."). Having reviewed the record, we conclude that the state's evidence, albeit thin, was legally sufficient to establish causation. We therefore affirm the portion of the restitution order pertaining to vehicle replacement costs.
The state "concedes" that the record contains insufficient evidence of the "reasonable market value" of the victim's totaled vehicle, see State v. De Verteuil , 304 Or. App. 163, 168, 467 P.3d 80 (2020) (looking to the "reasonable market value" of the victim's destroyed property in awarding restitution), but defendant does not make that argument on appeal. We therefore do not accept the state's concession. See Cervantes v. Dept. of Human Services, 295 Or. App. 691, 693, 435 P.3d 831 (2019) (recognizing that we are "not bound to accept" a concession and "must decide" whether to accept it).
We reject defendant's other two assignments of error, which relate to evidentiary rulings as to a particular witness's testimony, without written discussion.
Accordingly, we reverse the supplemental judgment and remand for resentencing. Defendant requests a straight reversal, but we agree with the state that reversal and remand is the correct disposition. Cf. State v. Boza , 306 Or. App. 279, 281, 473 P.3d 1161 (2020) ; State v. Moreno-Hernandez , 365 Or. 175, 190-91, 442 P.3d 1092 (2019) ; State v. Tippetts , 239 Or. App. 429, 432, 244 P.3d 891 (2010).
Supplemental judgment reversed; remanded for resentencing; otherwise affirmed.