State v. Abeln

477 P.3d 436, 307 Or. App. 839

• Court: Court of Appeals of Oregon
• Decided: December 9, 2020
• Docket: A167479
• Status: Published

Opinion

Submitted March 11; portion of judgment awarding restitution on Count 1 reversed, remanded for resentencing, otherwise affirmed December 9, 2020

STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL PAUL ABELN, Defendant-Appellant. Washington County Circuit Court 17CR59932; A167479 477 P3d 436

Andrew Erwin, Judge. Kenneth A. Kreuscher filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge. PER CURIAM Portion of judgment awarding restitution on Count 1 reversed; remanded for resentencing; otherwise affirmed. 840 State v. Abeln

PER CURIAM Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of third-degree sexual abuse, ORS 163.415. At the outset, we reject without discussion defendant’s first two assignments of error. For his third, he assigns error to the trial court’s awards of restitution in the amounts of $2,968.15 to Child Abuse Response and Evaluation Services Northwest (CARES), which conducted a child abuse evalua- tion of the victim, and $451.85 to Subrogation Services, Inc. For purposes of his appeal, defendant treats the amounts awarded to both organizations as going to CARES, explain- ing that “[t]he record does not indicate whether the subro- gation funds are directly related to the funds claimed by CARES Northwest, but those appear to be the only potential insurance related costs for the restitution.” He argues that CARES does not meet the statutory definition of a victim under ORS 137.103 for purposes of awarding victim restitu- tion under ORS 137.106. In response, the state concedes that, under State v. White, the trial court erred in awarding the $2,968.15 in res- titution to CARES and agrees that this court should reverse the restitution award and remand for resentencing. 296 Or App 445, 450-52, 439 P3d 569, rev den, 365 Or 195 (2019) (concluding under similar circumstances that CARES was neither a victim nor suffered economic damages for purposes of crime victim restitution). As for the amount awarded to Subrogation Services, Inc., the state contends that defen- dant has not assigned error to it. We accept the state’s concession regarding the $2,968.15 in restitution to CARES, and reverse and remand for the reasons stated in White and our subsequent cases following White. Id.; see also State v. Boza, 306 Or App 279, 473 P3d 1161 (2020) (accepting the state’s similar concession based on reasoning in White). As for the amount awarded to Subrogation Services, Inc., we understand defendant to have assigned error to that amount, but the record is such that we are unable to determine whether the trial court awarded that amount based on its erroneous view that CARES was eligible to recover restitution. Because we are remanding, Cite as 307 Or App 839 (2020) 841

the trial court may address that point, with the benefit of the parties’ arguments, on remand. Portion of judgment awarding restitution on Count 1 reversed; remanded for resentencing; otherwise affirmed.