State v. Kamaunu

No. 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