State v. Kamaunu
341 Or. App. 257
Or. Ct. App.2025Check TreatmentNo. 529 June 11, 2025 257
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MAITLAND KAHIKINAOKALA KAMAUNU,
aka Maitland Kahikinaokala Kamanu,
aka Maitland Kahikinaokala Kamauna,
aka Maitland Kamaunu,
aka Maitland K. Kamaunu,
aka Maitland-Anthony Kahikina O Ka L Kamaunu,
Defendant-Appellant.
Jackson County Circuit Court
21CR41133; A180381
Lorenzo A. Mejia, Judge.
Argued and submitted August 28, 2024.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public Defense
Services.
Joanna L. Jenkins, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Pagán, Judge, and O’Connor,
Judge.*
PAGÁN, J.
Affirmed.
______________
* O’Connor, Judge vice Mooney, Senior Judge.
258 State v. Kamaunu
Cite as 341 Or App 257 (2025) 259
PAGÁN, J.
In this criminal case, defendant appeals from a sup-
plemental judgment imposing restitution for a cell phone he
destroyed. In defendant’s sole assignment of error, he asserts
that the trial court erred when it imposed $599.99 in resti-
tution (reflecting the phone’s contract price), rather than the
fair market value of the phone. Defendant did not object to
the value of the phone below and asks us to undertake plain
error review. We agree that the error is one of law, but we
conclude that any error is not obvious, because there is more
than one way to award restitution, and there are open ques-
tions about how best to award restitution for a cell phone.
Therefore, the error is not plain, nor would we exercise our
discretion to correct the error. Accordingly, we affirm.
We review an order for restitution for legal error
and are “ ‘bound by the trial court’s factual findings if
they are supported by any evidence in the record.’ ” State v.
McClelland, 278 Or App 138, 141,372 P3d 614
, rev den,360 Or 423
(2016) (quoting State v. Pumphrey,266 Or App 729, 730
,338 P3d 819
(2014), rev den,357 Or 112
(2015)).
During a domestic dispute in August 2021, defen-
dant grabbed K’s phone out of her hands and threw it on the
ground repeatedly, effectively destroying it.1 Defendant then
tackled and injured K. After a bench trial, the trial court
found defendant guilty of coercion, ORS 163.275 (Count 1);
criminal mischief in the second degree, ORS 164.365 (a
lesser included offense of Count 2); and assault in the fourth
degree constituting domestic violence, ORS 163.169 (Count 3),
and entered a supplemental judgment for restitution. Defen-
dant appealed, State v. Kamaunu (CA A177338), and pur-
suant to a joint motion by the parties, in an order dated
October 12, 2022, we reversed and remanded the supple-
mental judgment containing the restitution award because
it had been entered without notice or a hearing. On remand,
the state called K, who testified to her economic damages.
K purchased the phone in March 2020, 17 months
prior to the attack. K paid $599.99 for the phone on credit,
1
The phone retained some functionality, in that its screen still turned on and
that it was still receiving text messages. But the screen and back were cracked,
and the volume buttons no longer worked.
260 State v. Kamaunu
with a downpayment of $180. Following the attack, K pur-
chased a new phone and paid off the contract on the
destroyed phone. At the restitution hearing, the state asked
for $1,023.79, which included the $599.99 contract price2 of
the destroyed phone, $364.90 in emergency room costs, and
$58.90 in personal medical expenses. Defendant does not
now dispute the various medical expenses. At the hearing,
defendant did not object to the $1,023.79 figure, and did not
otherwise challenge the value of the phone.3
On appeal, defendant asserts that the trial court
erred by awarding $599.99 in restitution for the phone.
“Under Oregon law, restitution is to be awarded when a
defendant has been convicted of a crime that results in eco-
nomic damages to the victim and the state has presented
evidence of those damages.” State v. Aguirre-Rodriguez, 367
Or 614, 618,482 P3d 62
(2021) (citing ORS 137.106(1)(a)). The state bears the burden of proof.Id.
“[T]he economic damages that may be awarded as restitution are objectively verifi- able out-of-pocket losses that a person could recover against the defendant in a civil action arising out of the defendant’s criminal activities.” State v. De Verteuil,304 Or App 163, 167
,467 P3d 80
(2020) (internal citations omitted).
Defendant focuses his argument on the following
phrase in De Verteuil: “the amount of restitution is the rea-
sonable market value of the property at the time and place
of the criminal conduct causing the destruction, plus inter-
est from that time forward.” Id. at 168. He argues that the contract price of the phone does not reflect its reasonable market value after 17 months of use. Defendant concedes that he did not preserve that argument and asks for plain error review. ORAP 5.45(1). A plain error is (1) an error of law that is (2) obvious and not reasonably in dispute, and (3) apparent on the record. State v. Vanornum,354 Or 614, 629
,317 P3d 889
(2013). It is not clear to us that the error
2
We do not say “purchase price” or “sticker price,” because phone contracts
often include a discounted price in exchange for the consumer’s commitment to
stay with a particular provider. The record does not reveal whether K had such
an arrangement.
3
During trial, defendant objected to a discussion about the cost of K’s new
phone and noted that “the question is how much [the old] phone was worth and
not how much she replaced it [for],” but defendant did not re-raise the issue at the
restitution hearing.
Cite as 341 Or App 257 (2025) 261
is obvious because there is more than one way to award
restitution, and there are open questions about how best to
award restitution for a cell phone.
While De Verteuil takes a market value approach,4
there are other ways to award restitution. See Hayes Oyster
Co. v. Dulcich, 170 Or App 219, 228,12 P3d 507
(2000) (just compensation for a loss is sometimes not market value); ORS 31.705(2)(a) (“ ‘Economic damages’ means objectively verifiable monetary losses including but not limited to * * * reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”); State v. Boyar,328 Or App 678, 680
,538 P3d 1225
, rev den,371 Or 771
(2023) (affirming award of replacement cost rather than repair cost where the defendant smashed the doors of a public building, and testimony indicated that repairing the doors would have cost more than replacement). Boyar also clarified that De Verteuil “does not stand for the proposition that the correct measure of damages is always the reason- able market value of the property.” Boyar,328 Or App at 681
. Rather, the proper measure is “what amount a victim could recover against the defendant in a civil action arising out of the defendant’s criminal activities,” of which market value is but one tool of achieving that end.Id.
(internal cita-
tions omitted).
We acknowledge that Boyar’s application has been
focused on damage to real property, not personal property.
See State v. Page, 330 Or App 672, 678,544 P3d 421
(2024) (discussing Boyar and damage to real property). But it is not the only area of restitution which features diverging approaches. Compare State v. Pool,338 Or App 19
,565 P3d 73
(2025) (replacement costs upheld because the defendant’s criminal conduct directly resulted in the need to replace all four tires of a car, even though the defendant had only slashed two), with State v. Bolds,306 Or App 121
,473 P3d 4
Even within the market value approach, a narrow category of items are
subject to exception: “personal effects, such as household furniture.” Hayes
Oyster Co. v. Dulcich, 170 Or App 219, 227,12 P3d 507
(2000) (also noting that alternative valuation may be appropriate for items which have no market); see De Verteuil,304 Or App at 168
(defining household furniture and household
goods). We have not determined, and do not now determine, whether cell phones
are personal effects.
262 State v. Kamaunu
564 (2020) (restitution was erroneously based on the market
value of the victim’s replacement vehicle instead of the rea-
sonable market value of the damaged vehicle at the time of
the crash).
We have yet to consider whether there is one correct
way to award restitution for cell phones. Given the range of
ways in which a cell phone may be purchased, the discounts
and perks that manufacturers and cell service providers
offer to entice customers, the complicated contracts, and
their unique importance in modern life,5 we cannot say that
our current case law makes it obvious and not reasonably
beyond dispute that a cell phone’s market value is the only
way to award restitution for its loss.
Even if the error were obvious and apparent on
the record, we would not exercise our discretion to correct
it. State v. Wiltse, 373 Or 1, 23,559 P3d 380
(2024). When deciding whether to exercise our discretion to correct plain error, we consider a range of factors, including the competing interests of the parties, the gravity of the error, the ends of justice, whether the trial court was given a chance to correct any error in some manner, and whether “the party alleg- ing the plain error encouraged the error or made a strate- gic choice not to object to it.”Id.
(internal citations omitted).
Here, we would decline to exercise our discretion because
defendant’s failure to object may have been strategic, any
error was not grave, and the ends of justice do not weigh in
favor of reversing.
We cannot say that the defendant’s failure to object
was not strategic. While testifying at the restitution hear-
ing, K noted that her new phone cost $1,600 and expressed
annoyance that she might only receive the price of the old
phone. Also, during trial, K had testified that the destroyed
phone had cost her “around a thousand dollars.” K did not
testify at the restitution hearing as to whether the contract
price of $599.99 was a discount from the “sticker price,” and
defendant chose not to cross examine her. Given that phone
5
We previously upheld restitution in a case where a victim’s phone was sto-
len for two days, which forced the victim to incur fees with a ride-sharing service
that he worked for that he otherwise would not have, even though the phone was
not destroyed, on the basis that a phone is a “a pervasive and insistent part of
daily life.” See State v. Venable, 316 Or App 235, 240,502 P3d 250
(2021). Cite as341 Or App 257
(2025) 263
contracts may include a discounted price (less than the rea-
sonable market value) in exchange for the consumer’s com-
mitment to stay with a particular provider, and indications
from K that she wanted restitution in an amount greater
than $599.99, defendant could have concluded that just com-
pensation for the loss incurred might include paying off the
remaining contractual obligation in addition to the cost of a
replacement phone.6 Thus, defendant might have chosen not
to object lest he press the issue too far. That defendant had
previously objected to the destroyed phone’s value during
trial7 also indicated that defendant was aware of the issue
but may have chosen not to re-raise it.
Thus, defendant might have concluded that not
objecting benefitted him because other potential methods
for calculating restitution could result in a higher restitu-
tion award. For the same reasons, the error is not particu-
larly grave and the ends of justice do not weigh in favor of
reversal.
Because the error is not obvious, the trial court did
not plainly err by awarding $599.99 in restitution for the
destroyed phone. Even if the error was plain, we would not
exercise our discretion to correct the error.
Affirmed.
6
Defendant argues that K’s loss was only $419.99 and arrives at that num-
ber by assuming it to be her remaining contractual obligation, i.e. the price she
was required to pay off immediately because of the phone’s destruction. But we
also do not understand that to be K’s loss, because she testified that she had made
payments on the phone in the 17 months since she made her $180 downpayment
on the phone—though we acknowledge that her testimony is contradictory on
this point. Thus, the record was unclear as to what K actually had to pay off at
the time of the phone’s destruction.
7
Defendant was convicted on the lesser included charge of second-degree
criminal mischief, rather than the originally charged first-degree criminal mis-
chief, as a direct result of questions about the phone’s value. First-degree crimi-
nal mischief has a $1,000 value threshold, whereas second-degree criminal mis-
chief has only a $500 value threshold. ORS 164.365; ORS 164.354.