State v. Brown

No. 412 June 20, 2024 297

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

HEATHER RENEE BROWN,

Defendant-Appellant.

Washington County Circuit Court

22CR18041; A179676

Oscar Garcia, Judge.

Submitted April 29, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Shawn Wiley, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and E. Nani Apo, Assistant Attorney

General, filed the brief for respondent.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

SHORR, P. J.

Affirmed.

298 State v. Brown

SHORR, P. J.

Defendant appeals from a supplemental judgment

imposing restitution, challenging the portion of the restitu-

tion that awarded the victim’s lost wages. She argues (1) that

the lost wages were not necessarily incurred as a consequence

of defendant’s criminal activity, and (2) that there was insuf-

ficient evidence that the victim’s use of paid vacation leave

constituted an economic loss. We review for legal error. State

v. Venable, 316 Or App 235, 236, 502 P3d 250 (2021), rev den,

369 Or 338 (2022). For the following reasons, we affirm.

Defendant pleaded guilty to misdemeanor unautho-

rized use of a vehicle (UUV) after she unlawfully drove the

victim’s stolen Subaru. At a restitution hearing, the victim

testified that she discovered her Subaru stolen just after she

had dropped her second car off at the body shop for repairs.

Consequently, until those repairs were complete, the vic-

tim was without either of her cars. The victim needed a car

for her work. Rather than rent a car, she used four days of

vacation leave while she awaited the body-shop repairs. The

state sought and the court awarded $784.32 in restitution

for the victim’s four days of missed work.

First, defendant argues that those lost wages were

not “necessarily incurred,” as required by ORS 137.1061

and ORS 31.705(2)(a),2 because the victim did not have to

miss work—she could have rented a car. But defendant con-

cedes that “the cost of a four-day car rental could have been

imposed as restitution as an economic cost resulting from

defendant’s criminal activities.” The state responds that,

due to defendant’s criminal conduct, the victim was forced

to choose between two possible economic losses—lost wages

or the cost of a rental car. And just because the victim chose

one option over the other does not mean that the chosen

option was any less of a “necessarily incurred” loss.

1

Among other things, ORS 137.106 requires a court to enter a judgment

“requiring that the defendant pay the victim restitution in a specific amount that

equals the full amount of the victim’s economic damages as determined by the

court.”

2

As relevant here, ORS 31.705(2)(a) defines “economic damages” to mean

“objectively verifiable monetary losses including but not limited to * * * necessar-

ily incurred costs due to loss of use of property.” See ORS 137.103(2) (defining the

term “economic damages” used in ORS 137.106 by reference to ORS 31.705).

Nonprecedential Memo Op: 333 Or App 297 (2024) 299

We agree with the state. This is not a case where

the victim simply chose to incur an optional cost. Cf. State v.

Nichols, 306 Or App 189, 200-01, 473 P3d 1145 (2020) (hold-

ing that the victim’s lost wages to attend certain pretrial

hearings was not compensable as restitution because their

presence was not necessary). As a consequence of defen-

dant’s criminal conduct, the victim had to choose to spend

money on a rental car or to use her paid time off. The vic-

tim’s use of her vacation time would not have been incurred

in the absence of defendant’s criminal conduct. See State v.

Page, 330 Or App 672, 677, 544 P3d 421 (2024) (holding that

the trial court properly awarded restitution for the cost of

repainting an entire house instead of just the two damaged

walls when the expense of repainting and matching all of

the exterior walls would not have happened in the absence

of defendant’s crime). As the state also points out, to the

extent that renting a car may have allowed the victim to

mitigate some of her economic loss, it was defendant who

bore the burden to prove that failure to mitigate. See State v.

Rock, 280 Or App 432, 437-38, 380 P3d 1084 (2016) (noting

that a party cannot recover for losses that could have been

reasonably avoided, but the party that caused the damage

bears the burden to prove a failure to mitigate loss).

Second, defendant argues that the state failed to

establish that the victim’s use of her vacation leave con-

stituted an economic loss because the state did not estab-

lish that the vacation leave was a finite resource, such that

using that leave deprived the victim of the opportunity to

use it later or to receive compensation for unused leave.

We conclude that defendant failed to preserve that argu-

ment, and she has not asked us to review for plain error.

Therefore, we decline to do so. See State v. Ardizzone, 270

Or App 666, 673, 349 P3d 597, rev den, 358 Or 145 (2015)

(“[W]e ordinarily will not proceed to the question of plain

error unless an appellant has explicitly asked us to do so

because it is incumbent upon the appellant to explain to us

why an error satisfies the requisites of plain error and, fur-

ther, why we should exercise our discretion to correct that

error.” (Internal quotation marks omitted.)).

Affirmed.