State v. Tejeda-Serrano

328 Or.App. 656

538 P.3d 1239

STATE of Oregon, Plaintiff-Respondent,

v.Alfredo TEJEDA-SERRANO, Defendant-Appellant.

A177070

Court of Appeals of Oregon.

Submitted August 30, 2023

October 18, 2023

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

Defendant appeals an amended judgment imposing criminal restitution. Defendant argues that the trial court erred in awarding compensation for lost rent in the amount of $6,210 on the ground that the state failed to present sufficient evidence that that amount was reasonable. We conclude that the record contains sufficient evidence for the trial court to determine that $6,210 was reasonable. Therefore, we affirm.

Defendant pleaded guilty to one count of first-degree arson, ORS 164.325, after she set fire to and damaged a home in Salem on December 20, 2020. Three days after the fire, a fire claim representative for State Farm Insurance inspected the property and prepared an estimate of the damages. The fire claim representative's estimate included a detailed floor plan of the house; itemization of observed damages and estimated repair costs; and information about lost rent for the period during which the house would be under repair. State Farm ultimately compensated the homeowner for losses caused by the fire, including lost rental income.

On July 12, 2021, the trial court entered a judgment of conviction, and on September 7, 2021, the state moved to amend the judgment to include restitution in favor of State Farm. At the restitution hearing, the State Farm fire claim representative testified as to the methodology he used to estimate the cost of the repairs, explaining that State Farm routinely uses a computer program to help claim representatives estimate dollar values using data about local markets. The fire claim representative did not specifically testify as to how State Farm arrived at the lost rent estimate, but the state offered the State Farm-generated "Summary of Loss" form into evidence, and the trial court admitted it. The "Summary of Loss" form contains a section entitled "Coverage C – Lost Rent." In that section, the form indicates State Farm's "Limit of Liability" as "actual," and the section contains a table showing the rent calculation using a rate of $1,150 per month, prorated for 11 days of December 2020 and applied in full to January through May of 2021, for a total amount of $6,210. The "Summary of Loss" form also includes a detailed description of the property including dimensions and features of the structure: The property in question is a 1,610 square foot, four-bedroom, two-bathroom home in Salem. The state also offered—and the trial court admitted—photos showing the damage that the fire caused to the property. The trial court awarded restitution in the full amount requested by the state, $80,686.86, which included $6,210.00 for five months and 11 days of lost rental income for which State Farm had compensated the homeowner.

On appeal, defendant challenges only the $6,210 that the trial court imposed to compensate State Farm for its payment to the homeowner for the lost rent. Defendant contends that the state failed to offer sufficient evidence to determine that that amount was reasonable. In defendant's view, that is so because the state failed to present evidence as to what the homeowner had been charging for rent prior to the fire or evidence "that the rent for comparable properties in the area was similar." Defendant contends that the "entirety of the evidence is that State Farm paid [$6,210] to the property owner."

"In reviewing a restitution award, we examine the trial court's legal conclusions for legal error and its factual findings for any evidence." State v. Skeen , 309 Or App 288, 290, 481 P.3d 402 (2021) (internal citations omitted). "We review the evidence supporting the trial court's restitution order in the light most favorable to the state." Id. (internal quotations omitted); see also State v. Aguirre-Rodriguez , 367 Or. 614, 620, 482 P.3d 62 (2021). Under ORS 137.106(1)(a) (2020), amended by Or. Laws 2022, ch. 57, § 1,¹ "a key ‘purpose of * * * criminal restitution is to make a victim whole.’ " State v. Wagnon , 324 Or App 17, 19, 524 P.3d 544 (2023) (quoting State v. Islam , 359 Or. 796, 802, 377 P.3d 533 (2016) ). The state bears the burden of providing sufficient evidence to support the reasonableness of the restitution award. Id. (citing ORS 137.106(1)(a) ). The issue in this case is whether the state provided sufficient evidence for a rational factfinder to have determined that the $6,210 in lost rent that State Farm paid to the homeowner was reasonable.

As noted, defendant argues that the evidentiary record was insufficient for the trial court to determine that the amount requested for lost rental income was reasonable, because there was no evidence of what the homeowner had been charging to rent the premises. On that issue, the state contends that the word "actual," on the "Limit of Liability" line in the "Coverage C – Lost Rent" section of the "Summary of Loss" form, means that State Farm compensated the homeowner based on the actual rent the homeowner had previously received as rent for the home. We think it is a reasonable inference that the word "actual" in this context means that State Farm's liability to the homeowner was limited by the actual rent that the homeowner had previously received as rent for the property. The calculations set forth on the form support that inference by applying a rate of $1,150 per month to a time period of five months and 11 days to arrive at the total figure of $6,210 for lost rent. In our view, that is sufficient for a factfinder to determine that State Farm reimbursed the homeowner for lost rent in an amount equal to that which the homeowner had previously received as rent for the home.

Defendant also argues that the evidentiary record was insufficient for the trial court to determine that the amount requested for lost rental income was reasonable because the state did not present evidence of "the rent for comparable properties." We have never addressed whether the state must present evidence of the rent for comparable properties to establish the reasonableness of a restitution award for lost rent. However, our past decisions concerning the reasonableness of restitution awards for medical expenses provide useful guidance on that question.

When the state seeks restitution for paid medical expenses—as with all types of expenses—it must show that the charges were reasonable. Wagnon , 324 Or App at 19, 524 P.3d 544 (citing State v. Gastiaburu , 318 Or App 454, 456-57, 508 P.3d 592 (2022) ). A charge "is reasonable if it is at (or below) the market rate for the services, drugs, or other medical items provided." Id. at 19, 524 P.3d 544 (quoting State v. Workman , 300 Or App 622, 623, 455 P.3d 566 (2019) ). The "submission of a hospital bill, without more, is insufficient...