Defendant appeals a judgment of conviction for first-degree robbery, ORS 164.415, possession of methamphetamine, ORS 475.894, and unlawful possession of a destructive device, ORS 166.382. He assigns error to the trial court’s denial of a motion for a judgment of acquittal on the robbery charge and to the imposition of restitution in the amount of $5,843.40. We affirm the court’s denial of the motion for a judgment of acquittаl without discussion, but remand for resentencing because of insufficient evidence to support the imposition of restitution.
The relevant facts are not in dispute. The victim and an acquaintance, Haynes, went to defendant’s house. At some point during the visit, Haynes аttempted to stun the victim with a Taser. The victim and Haynes began wrestling. Defendant walked into the room and pointed a gun at the victim and told him to “take the taze.” The victim then blacked out. When he awoke, he was told to “put everything” into a hat that was on the floor in front of him. The victim put his ring, watch, and wallet into the hat. Defendant was charged with, and ultimately convicted of, first-degree robbery based on the foregoing incident.
At sentencing, the state asked the court to impose $5,843.40 in restitution. The court responded that that was “а lot of restitution” and that, although there usually is a “restitution sheet” in the file, there appeared to be no such information in the file. The state offered no explanation for the amount that it requested. Defendant mentioned that he had received a “rеstitution request of 500 CD’s, $350.00 cash,” but that he did not know anything about those items. “[H]e didn’t take them. He did not participate in the stealing of those items.” The trial court then imposed sentence, including the $5,843.40 in restitution that the state requested.
On appeal, defendant contends thаt the trial court erred in imposing restitution without any evidentiary support for the amount of the victim’s loss. Defendant points out that therе is no evidence of the loss of any CDs in the robbery—only a ring, a watch, and a wallet. Moreover, he contends, there is a complete absence of evidence as to the value of the items claimed.
The state responds that defendant failed to preserve that contention, that any error is not plain on the face of the record, and that,
Defendant acknowledges that he objected to the state’s restitution request “in only general terms.” To the extent that the objection was not sufficiently specific, he asks us to review the matter as plain errоr.
We begin with the issue of preservation. Under ORAP 5.45(1), we may review unpreserved errors of law that are “apparent on the face of the record.” The criteria for plain error are:
“(1) it must be an error of law; (2) it must be apparent, meaning the legal point must be obvious, that is, not reasonably in dispute; and (3) it must appear on the face of the record, meaning the court neеd not go outside the record or choose between competing inferences to identify the error.”
State v. Martin,
In this case, the issue рresented is whether the trial court complied with the statutory requirements for the imposition of restitution under ORS 137.106, which the Supreme Court has held consist of evidence of “(1) criminal activities, (2) pecuniary damages, and (3) a causal relationship between the two.”
State v. Edson,
Whether the trial court complied with those requirements is apparent from the record and is not reasonably in dispute. Close in point in that regard is our opinion in
State v. Neese,
Although Neese involved a compensatory fine and this case involves restitutiоn, our conclusion in this case is the same issue as in Neese: The absence of any evidence supporting the amount of restitution is reаdily determinable by examining the record and the legal point is not reasonably in dispute. The state insists that “[s]ome evidence existed to support the victim’s restitution figure. The victim testified that specific items were stolen from him, although he did not provide monetary figures.” That there is evidence that certain items were stolen, however, in no way establishes the value of those items. The state points tо no evidence of value in the record of this case and no basis for drawing an inference that the value of the items stolen totaled $5,843.40.
The question remains whether we should exercise our discretion to review the error. In deciding whether to exercisе that discretion, we are to consider a variety of factors, including “the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring presеrvation of error have been served in the case in another way.”
Ailes v. Portland Meadows, Inc.,
On that question, our recent decision in
Neese
is again dispositive. In that case, as in this one, the recоrd contained no evidence to support the imposition of restitution in the amount that the state requested. We determined in
Neese
thаt, because of the significant amount of the compensatory fine involved and because it was not clear whether such evidence could be marshaled, the defendant’s interest in correcting the error was high.
Remanded for resentencing; otherwise affirmed.