State v. Miller

                                       740

 Argued and submitted July 6, portion of judgment requiring defendant to pay
  $1,480 in restitution reversed, otherwise affirmed September 7, petition for
                  review denied December 7, 2023 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   RONALD CLIFFORD MILLER,
                        Defendant-Appellant.
                     Linn County Circuit Court
                       19CR35259; A176919
                                   

    Defendant was convicted of first-degree unlawful sexual penetration, ORS
163.411, and first-degree sexual abuse, ORS 163.427. In his first assignment of
error, defendant argues that the trial court erred in allowing a witness to engage
in impermissible vouching to which defendant objected. In his second and third
assignments of error, defendant argues that the prosecutor made improper state-
ments in closing argument and that the trial court plainly erred in failing to
either strike those statements or declare a mistrial. In his fourth assignment of
error, defendant argues that the trial court plainly erred in imposing $1,480 in
restitution, because there was no evidence of reasonableness. Held: Any error in
overruling defendant’s vouching objection was harmless on this record. As for the
prosecutor’s closing argument, some statements were improper, but they were not
so prejudicial as to deny defendant a fair trial, so the standard for plain error in
this context was not met. The trial court did err in ordering restitution on this
record, however, as the state conceded.
    Portion of judgment requiring defendant to pay $1,480 in restitution reversed;
otherwise affirmed.



  David E. Delsman, Judge. (Judgments entered August 19,
2021)
   Thomas McHill, Judge. (Amended Judgment entered
July 11, 2022)
   Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

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   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
  AOYAGI, P. J.
   Portion of judgment requiring defendant to pay $1,480 in
restitution reversed; otherwise affirmed.
742                                            State v. Miller

        AOYAGI, P. J.
         Defendant was charged with sex crimes against
two children, C and K. The charges were tried to the court,
which found him guilty on both counts. Defendant appeals
the resulting judgment of conviction. In his first assignment
of error, defendant argues that the court erred in allowing
C’s adoptive mother to opine about C’s credibility over defen-
dant’s objection. In his second and third assignments of
error, defendant argues that the court plainly erred in fail-
ing to strike improper statements by the prosecutor during
closing argument or, alternatively, declare a mistrial. In his
fourth assignment of error, defendant argues that the court
plainly erred in imposing $1,480 in restitution. For the fol-
lowing reasons, we reverse the restitution order and other-
wise affirm.
                           FACTS
         In 2012, C was eight years old, and her half-sister
K was five years old. C was living with her biological father
and his wife, Laurie, who later adopted C. C had scheduled
visitation at the home of her biological mother, Jessica, every
other weekend and for two hours on Wednesdays. K was liv-
ing with Jessica at that time. Jessica also had roommates in
the house. A woman named Rivera lived there. For three to
four months in early 2012, defendant also lived there, until
Jessica kicked him out for not paying rent.
        While defendant was living in Jessica’s house,
he would babysit the girls and be left alone with them.
According to C and K, defendant sexually abused them.
         In 2012, Detective Fairall spoke to Jessica and
interviewed C as part of investigating Jessica in connec-
tion with another matter. Jessica denied that either C or
K had reported abuse to her directly, but she relayed that
K’s grandmother had said that K had said that defendant
touched K. In C’s interview, C described defendant as
“weird” but denied that anyone had touched her inappropri-
ately. Fairall used a drawing to ask C if anyone had touched
her on different body parts. C tensed up and forcefully said
“not doing it” when asked about the breast area; said “nope”
Cite as 

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as soon as Fairall pointed to the pubic area and, when asked
if she did not want to talk about that area, shook her head
and said “no questions either”; and said “don’t want to do it”
when Fairall pointed to the buttocks area. When asked if
any of her mother’s boyfriends had done anything that she
did not think was right, C responded only that defendant
spanked K. That was about all that Fairall could “get out of
her.” Fairall “sensed that something had happened to her”
but did not press her further because “she wasn’t ready to
talk” and he thought that it would be harmful to try to force
her to talk before she was ready. Fairall wrote in his report
closing the investigation, “[I]nvestigation will be reopened
at such time that [K or C] disclose sexual abuse by Ronald
Miller.”
         Nothing further happened until 2019, when Laurie
discovered that C, then 14 years old, had participated in
“vulgar” text messages and sent a sexually explicit photo of
herself to a boy. C started counseling and, in January 2019,
after her second counseling session, told Laurie that defen-
dant had sexually touched her and K. Laurie, who is a
mandatory child abuse reporter, made a police report. In
interviews during the subsequent police investigation, both
C and K described sexual abuse by defendant. For his part,
defendant told the police that he had only lived with Jessica
for a couple days and did not remember C or K, and he denied
any sexual touching.
         Defendant was charged with first-degree unlaw-
ful sexual penetration, ORS 163.411, as to C (Count 1), and
first-degree sexual abuse, ORS 163.427, as to K (Count 2).
He waived his right to a jury trial, so the charges were
tried to the court. At trial, in addition to the previously
described facts, there was disputed evidence that C and K
each reported abuse to Jessica in 2012 and that C reported
K’s abuse to K’s grandmother in 2012, as well as evidence
that Rivera thought that defendant was “too touchy and
clingy” with K, saw red flags and had a bad “gut” feeling,
and told Jessica in 2012 that she was uncomfortable with
C and K being left alone with defendant. After hearing the
evidence, the court found defendant guilty on both charges
and entered a judgment of conviction.
744                                           State v. Miller

            LAURIE’S ALLEGED VOUCHING
        In his first assignment of error, defendant argues
that the trial court erred in allowing C’s adoptive mother,
Laurie, to opine about C’s credibility.
        On direct examination, Laurie testified regarding
C’s abuse disclosure in January 2019, which took place in the
parking lot after C’s counseling session. Laurie described
that C “just broke down” in the car and was “just sobbing
and sobbing” for several minutes, while Laurie hugged her.
“Her demeanor—it wasn’t [C],” and Laurie could tell “this
was something big.” C finally said, “Ron Miller touched me.”
C provided only a couple details when Laurie asked and
otherwise did not want to talk about it. It was a “very short”
conversation, “but the sobbing continued” for “a good 15,
20 minutes” in the parking lot.
          On cross-examination, defense counsel asked
Laurie whether she had told a police officer that she “had
issues with [C] lying and sneaking around to communicate
with boys,” had expressed frustration with C’s dishonesty,
and had said that she was not sure whether C would be
honest with the officer. In response, Laurie testified that C
“wasn’t forthcoming with the truth,” that C sometimes had
to be reassured that something was normal teenage behav-
ior or the like before she would be honest with Laurie, that
Laurie considered it “pretty normal with teens to try to
deny and not be truthful to see if they can get away with it,”
and that Laurie did express frustration and tell the officer
that she was not sure whether C would be honest with the
officer. Laurie concluded her answers to that line of cross-
examination by stating, “I guess I can kind of tell when
she—her—the fibbing that she would do, like if you would
ask ‘Are you talking to boys on the computer while I’m at
work?’ ‘No.’ When she—I can tell when she’s lying. Let’s just
say that. She’s not a good liar.” Defense counsel then moved
on to another topic.
        On redirect examination, Laurie explained what
she had meant by her testimony that C is “not a good liar,”
to which defense counsel did not object, then answered a
follow-up question about C’s demeanor during the disclosure
incident in January 2019, to which defendant did object:
Cite as 

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      “[PROSECUTOR]:              You said that she’s not a good liar.
    What did you mean?
      “[LAURIE]: I can just tell. Now you’re going to make
    me disclose all my ways that I know.
       “[PROSECUTOR]: Well, if that would ruin your par-
    enting strategies I don’t know if I need to—
        “[LAURIE]: Well, she’ll be an adult here in March so…
    She’s very somber and very monotone when she is lying,
    and when she is telling the truth—and there’s been times
    that I’ve questioned her about something that I’d expect
    her to lie. It’s the tears and ‘Can I just tell you why I did
    this?’ or ‘why I made that decision,’ or sometimes her voice.
    If she’s not monotone when she’s lying her voice will go up
    like ‘I didn’t—’
        “[PROSECUTOR]: I’m not going to make you reveal all
    your tricks. Is what you’re describing here anything remotely
    like what you observed on January 29 when she disclosed to
    you?
        “[LAURIE]: No. No.
       “[DEFENSE COUNSEL]: Well, that—that sounds
    like vouching. I would object.”
(Emphases added.)1
         The prosecutor responded to the objection by
arguing that Laurie was not offering her own opinion on
whether C was telling the truth or vouching for C’s truth-
fulness but, rather, that “[s]he’s saying ‘The behaviors that I
observe when she’s lying were not apparent,’ like the physi-
cal demeanor question. I think I’ve been careful to toe that
line.” Defendant reiterated, “It still sounds like vouching to
me.” The court overruled the objection. The prosecutor then
changed topics.
         No mention was made of the challenged testimony
in closing argument. The main theme of the prosecutor’s
closing argument was that the state’s case came down to

    1
      To the extent that defendant’s opening brief was not entirely clear as to the
scope of his claim of error, defendant acknowledged in his reply brief and at oral
argument that trial counsel objected only to the above-italicized question and
answer, and defendant confirmed that he is challenging only the ruling on that
objection.
746                                              State v. Miller

whether the trial court believed C’s and K’s trial testimony:
“Ultimately if you strip away the frills of the state’s case the
core, in essence, of all of this it comes down to the force and
potency of the testimony of these two young ladies.” The pros-
ecutor made specific arguments as to why the court should
view the girls’ trial testimony as credible, including that it
was internally consistent and consistent between them, that
there were “visceral details” about the abuse that rang true,
and that the girls were clear and emotionally intelligent in
their testimony. The prosecutor then pointed to particular
evidence from other witnesses that corroborated the girls’
testimony—which did not include the challenged testi-
mony—while reiterating that the court could find defendant
guilty based on the girls’ testimony alone.
         Defense counsel’s closing argument challenged the
persuasiveness of the state’s evidence. The defense did not
contend, however, that C was lying about her present belief
that she was sexually abused in 2012—although the defense
did suggest that C was lying about having reported it to
family members in 2012. Early in closing, defense counsel
said regarding C and K, “They both seem very sincere, and
I believe that they believe what they’re saying.” He later
stated that he did not think that C was “being untruthful”
about believing that she was sexually abused, explaining
that “in her own mind I think that perhaps something hap-
pened and I think her mind developed some kind of a con-
structed something.” He posited that “[m]aybe [C] did see
touching with [K] and she felt guilty about that and that’s
why her mind constructed something.” Defense counsel also
emphasized that it had been nine years since the alleged
events.
         At the conclusion of the trial, the court announced
that it was finding defendant guilty on both charges, stating:
       “I have had an opportunity to review my notes. Earlier
   today when we had our break, I had an opportunity to
   review some witness testimony, as well as the exhibits that
   have been offered and received during the course of this
   trial.
      “I won’t offer much by way of comment regarding the
   evidence other than to say I did find the testimony of both
Cite as 

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   [C] and [K] to be credible, and as occurs in all criminal
   cases there are variances in particular witness testimony,
   but I found overall that the statements of the witnesses
   was coherent and cohesive and I am convinced beyond a
   reasonable doubt with regard to Count 1, Unlawful Sexual
   Penetration in the First Degree, the defendant is guilty,
   with regard to Count 2, Sexual Abuse in the First Degree,
   guilty as well.”
         On appeal, defendant argues that the trial court
erred in overruling his vouching objection during redirect
examination of Laurie and that he should be given a new
trial because the error was not harmless. The state responds
that the court did not err in overruling the objection, because
Laurie’s testimony fell on the side of permissible demeanor
evidence and could properly be considered for nonvouching
purposes. Alternatively, the state argues that any error in
overruling the objection was harmless.
          “Vouching” refers to the expression of one’s per-
sonal opinion about the credibility of a witness. State v.
Chandler, 

, 

 (2016) (discuss-
ing the history of the “judicially created rule” against vouch-
ing). Credibility determinations are the exclusive province
of the jury, so witnesses are categorically prohibited from
expressing a view on whether another witness is “telling the
truth.” State v. Middleton, 

, 

(1983); accord State v. Black, 

, 

(2019) (“[T]estimony that constitutes vouching is categori-
cally inadmissible.”). “[T]he rule against vouching prohibits
a witness from making a direct comment, or one that is tan-
tamount to a direct comment, on another witness’s credibil-
ity.” 

. “Whether a witness’s statement constitutes
impermissible vouching is a legal question.” State v. Sperou,

, 

 (2019).
         It is a somewhat complicated question whether
the trial court erred in overruling defendant’s objection to
Laurie’s testimony that, during the January 2019 disclo-
sure incident, Laurie did not observe C engaging in any of
the previously described behaviors that Laurie associated
with C lying—primarily because defendant either elicited
or did not object to Laurie’s prior testimony, and it is only in
748                                                       State v. Miller

the context of that prior testimony that Laurie’s challenged
answer can be viewed as vouching.
         Generally, “testimony about the physical appear-
ance of a speaker, or testimony that is solely descriptive of
the manner in which a communication is made—so-called
demeanor evidence—is admissible and is not vouching evi-
dence.” State v. Wilson, 

, 

(2014), rev den, 

 (2015); see also State v. Lupoli,

, 

 (2010) (“[O]bservations of [the
complainant’s] physical characteristics and demeanor ordi-
narily would not be, in and of themselves, impermissible
vouching.”). However, in some cases, otherwise admissible
demeanor testimony may be “inextricably bound up with”
impermissible vouching testimony, such that all of it should
be excluded. Lupoli, 

 (holding that all of a
witness’s challenged testimony should have been excluded,
including both “clear” vouching testimony and demeanor
testimony that was “inextricably bound up with” the prior
vouching testimony).
         Here, Laurie’s simple “no” answer to the challenged
demeanor question was inextricably bound up with her prior
testimony that C is not a good liar and that Laurie associ-
ates certain behaviors with C lying. It effectively communi-
cated to the factfinder that Laurie did not perceive C to be
lying during the 2019 disclosure incident.
          If defendant had successfully objected to Laurie’s
earlier testimony, then it would have been impossible for the
prosecutor to even ask the question at issue. Or, if defen-
dant had objected to Laurie’s earlier testimony, it had been
allowed, and we were to conclude on appeal that the earlier
testimony should have been excluded,2 there is little doubt
that we would conclude that the later testimony should have
been excluded as well. See Lupoli, 

 (hold-
ing that “otherwise permissible or potentially permissible”
demeanor testimony should have been excluded, where it
was “inextricably bound up with” prior testimony “that con-
stituted clear ‘vouching,’ ” where the defendant had “objected
to all” of it with specific and continuing vouching objections).
   2
     We express no opinion on the admissibility of Laurie’s earlier testimony,
which was not objected to at trial and is not challenged on appeal.
Cite as 

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What is less clear is whether Laurie’s objected-to demeanor
answer should be treated as vouching testimony in context,
even though the testimony that provides that context all
came in without objection. Defendant has not cited any case
in a comparable posture.
        Ultimately, however, we need not conclusively
decide whether the trial court should have sustained defen-
dant’s vouching objection, because we agree with the state
that any error in overruling it was harmless on this record.
         We may not reverse a criminal conviction based on
the erroneous admission of evidence if the error did not sub-
stantially affect the defendant’s rights, i.e., if it was harm-
less. State v. Davis, 

, 

 (2003)
(discussing the Oregon Constitution, Article VII (Amended),
section 3); OEC 103(1) (“Evidential error is not presumed to
be prejudicial.”). The standard reduces to “a single inquiry:
Is there little likelihood that the particular error affected
the verdict?” Davis, 

; see also Purdy v. Deere
and Company, 

, 

 (2014) (“This
court’s previous decisions that have applied the standard to
instances of instructional and evidentiary error generally
indicate that little likelihood is not enough, but more—that
is, ‘some’ or a ‘significant’ likelihood that the error influ-
enced the result—will suffice for reversal.”). In making that
determination, “we examine the record as a whole and con-
sider the error and the context in which it occurred.” State
v. Durando, 

, 

, adh’d to as
modified on recons, 

, 

, rev den,

 (2014).
         Here, Laurie testified without objection that C is
“not a good liar” and that, as C’s mother, she believes that
she can tell when C is lying, as well as describing the behav-
iors that she associates with C lying. Laurie also testified
in detail, as previously described, to C’s demeanor during
the January 2019 disclosure incident, and what Laurie
described bore no similarity to the behaviors that Laurie
later testified to associating with C lying. Laurie also made
a police report based on what C told her. Based on the evi-
dence that was admitted without objection, it already would
have been apparent to the factfinder that Laurie personally
750                                            State v. Miller

believed C’s assertion that defendant sexually touched her
in 2012, or at least did not think that C was lying.
         Further, the prosecutor did nothing in closing argu-
ment to draw attention to that apparent fact generally, or
to the challenged testimony specifically. His arguments
focused primarily on C’s and K’s trial testimony and second-
arily on specific corroborating evidence. Meanwhile, defense
counsel did not contend that C was lying about her belief
that she was sexually abused. See State v. Maiden, 

, 

 (2008) (“[I]n determining the pos-
sible influence of the error on the verdict, we consider the
importance of the erroneously admitted evidence to a par-
ty’s theory of the case.”). Defense counsel argued that C’s
memory of what happened nine years earlier was unreliable,
and he suggested that C had lied about disclosing to family
members in 2012, but the defense made a clear strategic
choice not to argue that C was lying about her present belief
that she had been sexually abused. Thus, although the reli-
ability of C’s memory and the credibility of her claims of past
disclosure were central issues, whether C presently believed
that she had been sexually abused was not a central issue.
        Finally, it is apparent from the trial court’s speak-
ing verdict that the court relied primarily on its own assess-
ment of C’s and K’s credibility on the witness stand in find-
ing defendant guilty.
         Considering all of the foregoing together, we con-
clude that, even assuming that the court erred in overruling
defendant’s objection—because, in the context of prior tes-
timony admitted without objection, Laurie’s answer to the
prosecutor’s final demeanor question amounted to vouch-
ing—there is little likelihood that the error affected the
court’s verdict. Because any error was harmless, we reject
the first assignment of error.
          PROSECUTORIAL STATEMENTS IN
               CLOSING ARGUMENT
        Defendant next contends, in his second and third
assignments of error, that the prosecutor made improper
statements in closing argument and that the trial court
erred by failing to either strike them or declare a mistrial.
Cite as 

 (2023)                             751

Defendant did not object at trial, so he requests plain-error
review.
         “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). However, we have discretion to cor-
rect a “plain” error. ORAP 5.45(1). An error is “plain” when
it is an error of law, the legal point is obvious and not rea-
sonably in dispute, and the error is apparent on the record
without our having to choose among competing inferences.
State v. Vanornum, 

, 

 (2013). It is
a matter of discretion whether we will correct a plain error.
State v. Gornick, 

, 

 (2006).
         The Supreme Court recently addressed in State
v. Chitwood, 

, 

 (2022), how to
approach plain-error review in the specific context of a
challenge to prosecutorial statements in closing argument
to which the defendant did not object. In short, it must be
“beyond dispute that the prosecutor’s comments were so
prejudicial as to have denied defendant a fair trial.” 

 (internal quotation marks omitted). Moreover, “a defen-
dant asserting plain error must demonstrate that the pros-
ecutor’s comments were so prejudicial that an instruction
to disregard them would not have been sufficiently curative
to assure the court, in its consideration of all the circum-
stances, that the defendant received a fair trial.” 

 That
is, “prosecutorial statements that were improper but curable
are not an appropriate subject of plain-error review, because,
in such circumstances, the defendant was not denied a fair
trial.” State v. Durant, 

, 

(2023) (emphasis in original). That is important because,
“[g]enerally, a proper jury instruction is adequate to cure
any presumed prejudice from a prosecutor’s misconduct.”
State v. Davis, 

, 

 (2008), cert den,

 (2009).
         Here, defendant challenges various statements that
the prosecutor made during closing argument to the court,
arguing that the prosecutor impermissibly vouched for the
complainants at several points and thrice referred to facts
not in evidence. Having reviewed the record, we disagree that
the prosecutor impermissibly vouched for the complainants.
752                                            State v. Miller

The challenged statements were permissible arguments
regarding the persuasiveness of the evidence and did not
cross the line into vouching. We therefore reject that portion
of defendant’s argument without further discussion.
         As for the prosecutor’s three alleged references to
“facts not in evidence,” we begin with the one that defendant
views as most egregious, keeping in mind that it must be
beyond dispute that the prosecutor’s comments were so prej-
udicial as to have denied defendant a fair trial. During clos-
ing argument, the prosecutor remarked that defense coun-
sel seemed to view Fairall’s testimony as calling C’s honesty
into question. He argued that the better view of Fairall’s
testimony was that “Fairall believed [C] in 2012 without her
having to say a word,” i.e., that Fairall believed that some-
thing had happened to C without C having to say so. The
prosecutor told the court that the phrase he used (“Fairall
believed her in 2012 without her having to say a word”) was
what “my victim services advocate” had written down as
her “impression” of Fairall’s testimony, that it was also the
prosecutor’s “impression” of Fairall’s testimony and “what
his testimony truly signified,” and that the prosecutor hoped
the court had the same impression of Fairall’s testimony.
         Defendant argues that the foregoing remarks
relayed the prosecutor’s and the victim services advocate’s
shared view that Fairall’s testimony “was credible, mean-
ing that, in turn, C’s allegations were credible”—and thus
constituted impermissible vouching. We disagree. It was
improper for the prosecutor to reference the victim services
advocate as having supplied the particular phrasing that
he was using in argument. However, substantively, what
the prosecutor said was not vouching, because he was argu-
ing about how the content of Fairall’s testimony should be
understood, not expressing his (or the victim services advo-
cate’s) personal opinion of the credibility of Fairall’s testi-
mony. Moreover, what Fairall “believed” after interviewing
C was something that C did not say and in fact denied, so
Fairall cannot be viewed as vouching for the credibility of
what C told him, to the extent there is any suggestion to
that effect in defendant’s argument.
Cite as 

 (2023)                             753

          Defendant next challenges a statement that the
prosecutor made at another point in closing argument:
“[T]his isn’t a jury where we really needed to explain reasons
why kids don’t disclose. I know you’ve been at this a long time
and that you understand the principles of why kids don’t dis-
close and how their sophistication increases over time and
hence the disclosure later, the fear, the threats, indicia of
reliability.” We agree with defendant that any suggestion
that the state’s evidentiary burden might be different in a
bench trial than a jury trial is improper. At the same time,
the basic concept that delayed disclosure is not uncommon
among child sex abuse victims is arguably approaching the
point of common knowledge, or at least could be understood
as something that could be referenced in broad terms in
a case like this one, where C testified that defendant had
threatened to hurt K and C’s parents if C told anyone about
the abuse. The statement was improper but not necessarily
egregious.
         Lastly, at another point in closing argument, the
prosecutor argued, in discussing Rivera’s testimony, that
people sometimes know something without being able to
articulate how they know it, said that the popular author
Malcolm Gladwell refers to that ability as “thin slicing,” and
gave two examples from Gladwell’s book. It is not uncommon
for attorneys to try to work in popular references in mak-
ing a point. It is debatable whether this was an appropriate
use of that argument technique. We assume for present pur-
poses that it was improper.
        We are unpersuaded that the prosecutor’s three
improper statements were so prejudicial that the trial court
could not have stricken them and, instead, was legally
required to declare a mistrial. This was a bench trial. We
have no doubt that the trial judge would have been able to
disregard those statements if defendant had objected and
the court had stricken them. It will be the rare case in which
an improper statement made by an attorney in closing argu-
ment to the court is so prejudicial that the court is legally
required to declare a mistrial. Because the challenged
statements here could have been stricken, without the court
having to declare a mistrial, defendant has not established
754                                                           State v. Miller

plain error under Chitwood. See Chitwood, 

;
Durant, 

. We therefore reject defendant’s
second and third assignments of error.
                              RESTITUTION
         In his fourth assignment of error, defendant asserts
that the trial court plainly erred in ordering him to pay
$1,480 in restitution to the Criminal Injuries Compensation
Account for costs paid for counseling for C, because there
was no evidence that those costs were reasonable. See State
v. McClelland, 

, 

 (2016),
rev den, 

 (2016) (discussing evidentiary require-
ment to prove that a charge for medical services was “rea-
sonable,” and reversing restitution order where the state
failed to meet its burden of proof).
         We review the imposition of restitution for errors
of law. State v. Thorpe, 

, 

(2007). In this case, there was no evidence at all regarding
the challenged costs, and the state concedes that the trial
court plainly erred and that we should exercise our discre-
tion to correct the error. Having reviewed the record, we
agree on both points. Cf. State v. Riverman, 

, 

 (2022) (“[W]e agree with the parties that
the trial court plainly erred in imposing restitution for the
hospital and chiropractic expenses when the state did not
establish that those expenses were reasonable, and we exer-
cise our discretion to correct the error. “). Accordingly, we
reverse the order that defendant pay $1,480 in restitution.3
        Portion of judgment requiring defendant to pay
$1,480 in restitution reversed; otherwise affirmed.




    3
       See State v. Park, 

, 

 (2022) (noting that,
upon reversal of a restitution order, remanding is appropriate “if the record indi-
cates that the trial court may have an alternative basis on which to impose res-
titution,” and reversing without remanding for resentencing where that was not
the case).