State v. De Verteuil ( 2020 )

163
Submitted December 20, 2019; restitution award partially vacated, remanded
for resentencing, otherwise affirmed May 13, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN MATTHEW DE VERTEUIL,
Defendant-Appellant.
Multnomah County Circuit Court
17CR49618; A167645
467 P3d 80
Defendant appeals from a supplemental judgment of restitution entered after
he pleaded guilty to driving under the influence of intoxicants and fourth-degree
assault. Defendant rear ended the victim’s car while the victim was stopped at
a red light. The accident caused damage to the victim’s car and destroyed items
both in and on the car, including an infant car seat and a roof rack, which were
several years old. The trial court granted restitution for the car seat and roof
rack, awarding the amount the victim had originally paid for those items in new
condition. Defendant assigns error to the court’s imposition of restitution for the
car seat and roof rack, arguing that the correct measure of damages is the mar-
ket value of the used items at the time of the criminal conduct causing damages.
The state contends that the items fall within a limited exception that permits
alternative methods of valuation for household furniture or similar household
goods. Held: The trial court erred in ordering defendant to pay the original pur-
chase price of the car seat and roof rack in new condition. When a defendant has
been convicted of a crime that results in the destruction of personal property, the
amount of restitution is the reasonable market value of the property at the time
and place of the criminal conduct causing the destruction. The limited exception
does not apply to the items at issue.
Restitution award partially vacated; remanded for resentencing; otherwise
affirmed.
Gregory F. Silver, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
164 State v. De Verteuil
SHORR, J.
Restitution award partially vacated; remanded for resen-
tencing; otherwise affirmed.
Cite as 304 Or App 163 (2020) 165
SHORR, J.
Defendant appeals from a supplemental judgment
of restitution entered after he pleaded guilty to driving
under the influence of intoxicants (DUII), ORS 813.010, and
fourth-degree assault, ORS 163.160. Defendant raises three
assignments of error, all assigning error to the trial court’s
imposition of restitution for damages that the trial court con-
cluded were caused by defendant’s crimes. We reject defen-
dant’s first assignment of error without written discussion.
In his second and third assignments, defendant assigns
error to the court’s imposition of a restitution award that
ordered defendant to pay the retail value that the victim had
paid for a new car seat ($109) and roof rack ($200) to replace
the victim’s existing ones that defendant had damaged. We
agree with defendant that the court erred in ordering defen-
dant to pay restitution for the original value of those items
in new condition rather than the market value for those
now-used items at the time of the criminal conduct causing
damages. As a result, we vacate that portion of the restitu-
tion award, remand for resentencing for the trial court to
reconsider the appropriate award, but otherwise affirm.
The following facts are uncontested. Defendant was
driving a vehicle on a public way while under the influence
of intoxicants. Defendant drove into the back of MacMillan’s
car while her car was stopped for a red light. The impact
pushed MacMillan’s car into the car that was stopped in
front of her. The impact caused MacMillan physical injury
and also damaged her car such that the insurance company
considered the car “totaled.” The crash also destroyed items
in and on the car, including an infant car seat and a roof
rack. MacMillan and her husband had purchased the car
seat in new condition for $109 when they had their first
child, but the seat was now used and approximately three
years old. They also had previously purchased the roof rack
in new condition for $224, but the roof rack was now approx-
imately six years old.
Defendant pleaded guilty to DUII and fourth-degree
assault. The state sought an award of restitution under ORS
137.106. See ORS 137.106(1) (stating that, if the court finds
that the victim suffered economic damages, the court “shall”
166 State v. De Verteuil
enter a judgment requiring payment of “the full amount of
the victim’s economic damages”). At the restitution hearing,
defendant objected to, among other things, an award of res-
titution that compensated MacMillan for the cost of what
she had spent on a new car seat and roof rack rather than
the value of those now-used items at the time of the damage.
The trial court granted restitution for what the victim had
spent to purchase those items as new items at the time of
purchase, awarding $109 for the car seat and $200 for the
roof rack.1
Defendant reprises the arguments that he made to
the trial court, arguing that the court could not order res-
titution in the amount of the purchase price of new items
when the items that were damaged had been used for sev-
eral years. As noted above, we agree.
We review a trial court’s finding of economic dam-
ages to determine if the finding is supported by “any evi-
dence in the record.” State v. Onishchenko, 249 Or App 470,
477-78, 278 P3d 63, rev den, 352 Or 378 (2012) (internal quo-
tation marks omitted). Where, as here, the issue is whether
the trial court applied the correct legal test, that is a ques-
tion of law that we review for legal error. Id. at 477 n 3.
Under ORS 137.106(1)(a), “restitution may be awarded
when a defendant has been convicted of a crime that results
in economic damages and the state has presented evidence
of such damages.” State v. Islam, 359 Or 796, 798, 377 P3d
533 (2016). Here, the dispute is over the amount of damages
that the trial court awarded and, in particular, the legal
test that the court used to determine that amount.
A trial court shall order restitution “in a specific
amount that equals the full amount of the victim’s economic
damages as determined by the court.” ORS 137.106(1)(a).
That determination “is informed by principles enunciated
in civil cases concerning recoverable economic damages.”
1
The trial court appeared to award restitution for what the victim spent
on a new roof rack less approximately $20 that the victim testified that she was
offered from defendant’s insurance company for the rack. The court also awarded
restitution for other economic damages that are not at issue on appeal.
Cite as 304 Or App 163 (2020) 167
Islam, 359 Or at 800. Thus, the “economic damages” that
may be awarded as restitution are “objectively verifiable
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. Herfurth, 283 Or App 149, 154,
388 P3d 1104 (2016), rev den, 361 Or 350 (2017); see also ORS
137.103(2) (providing that “[e]conomic damages” “[h]as the
meaning given that term in ORS 31.710”); ORS 31.710(2)(a)
(defining “economic damages” recoverable in civil actions as
“objectively verifiable monetary losses”).
Defendant contends that, in civil cases where a plain-
tiff’s property is destroyed, the plaintiff may recover eco-
nomic damages for conversion. See Mustola v. Toddy, 253
Or 658, 663, 456 P2d 1004 (1969) (stating that conversion is
“an intentional exercise of dominion or control over a chat-
tel which so seriously interferes with the right of another
to control it”). In a conversion action, a plaintiff’s economic
damages are the reasonable market value of the goods con-
verted at the time and place of conversion plus interest from
that point forward. Islam, 359 Or at 801; Hayes Oyster Co.
v. Dulcich, 170 Or App 219, 226, 12 P3d 507 (2000) (stat-
ing that the Oregon Supreme Court “has long held that the
measure of damages for the conversion of personal property
is the reasonable market value of the goods converted at the
time and place of conversion” (internal quotation marks and
brackets omitted)).
For its part, the state does not contest that the prin-
ciples of conversion apply and that, at least as a general rule
in such cases, a plaintiff may recover the reasonable market
value of the goods converted at the time and place of con-
version. We initially question whether that is the apt com-
parison. The more appropriate civil analog in this instance,
where defendant crashed into the victim’s car while driving
under the influence of intoxicants, may be to a negligence
case involving the destruction of property. The difference,
however, is of no moment because the general rule in con-
version, negligence, and other tort claims involving destruc-
tion of property is the same: “[W]here property is destroyed,
the measure of damages is generally the market value of
the property.” PGE v. Taber, 146 Or App 735, 739, 934 P2d
168 State v. De Verteuil
538, rev den, 325 Or 438 (1997). Thus, we conclude that, as
a general rule, when a defendant has been convicted of a
crime that results in the destruction of personal property,
the amount of restitution is the reasonable market value
of the property at the time and place of the criminal con-
duct causing the destruction, plus interest from that time
forward.
The state contends, however, that the victim’s dam-
ages fall within an exception to the general rule in conver-
sion cases that permits alternative methods of valuation
when the converted property is household furniture or simi-
lar household goods. Barber v. Motor Investment Co., 136 Or
361, 366, 298 P 216 (1931) (applying exception to household
furniture). The state contends that such an exception per-
mits a restitution award for the victim’s original purchase
price for a new car seat and roof rack.
In Barber, the Supreme Court held that the trial
court properly instructed the jury that it could award dam-
ages for the conversion of “household goods and effects
owned and kept for personal use” even when they did not
have any market value or a value indicative of their real
value to the owner. Id. at 365. The court stated that, “[i]n the
case of household goods and furniture owned and kept for
personal use, their market value is not * * * considered fair
and just compensation, but the owner is entitled to recover
the actual value of the property to [the owner].” Id. at 366.
The court acknowledged that “[o]rdinarily the market value
of the property meets the requirement of just compensation.”
Id. The court stated that it would not follow the general rule
for awarding market value when it “runs counter to the car-
dinal rule of just compensation.” Id.That last-quoted statement in Barber, however,
was later expressly limited by the Supreme Court in Hall v.
Work, 223 Or 347, 362, 354 P2d 837 (1960). In Hall, the court
followed the general rule in concluding that an automobile’s
value was determined by its market value at the time and
place of conversion with interest added from that date.
Id. at 357, 362-63. The court recognized the “well estab-
lished exception used in cases involving goods which are not
Cite as 304 Or App 163 (2020) 169
ordinarily objects of commerce and have no market value.”
Id. at 361. But the court concluded that it would lead to “an
erroneous result” if the exception in Barber were “taken out
of context and applied to property with a market value,”
such as an automobile. Id. at 362. We also later noted that
Hall “subsequently limited the reasoning in Barber * * * to
personal effects, such as household furniture” and Barber’s
reasoning is “limited to situations where fair market value
is not equivalent to just compensation for the loss incurred.”
Hayes Oyster Co., 170 Or App at 227-28.
We conclude that a car seat and roof rack are not
similar enough to the household furniture or goods at issue
in Barber to permit the application of its limited exception to
the general rule, which awards the property’s market value
at the time and place of its destruction. Household furniture
and household goods are those used in connection with the
household or a domestic establishment. See Webster’s Third
New Int’l Dictionary 1096 (unabridged ed 2002) (defining
the adjective “household” as “of or relating to a household”
and the noun as “the maintaining of a house,” “those who
dwell under the same roof and compose a family,” “a domes-
tic establishment,” and “a social unit comprised of those
living together in the same dwelling place”); Black’s Law
Dictionary 838 (11th ed 2019) (defining “household goods”
as “[g]oods that are used in connection with a home”). Car
seats and roof racks are not goods used in connection with
the household but in connection with an automobile. They
are not akin to those goods at issue in Barber and are some-
what closer to the automobile at issue in Hall, which refused
to apply the limited exception in Barber.
They are also not the type of “personal effects” noted
in Barber and Hayes Oyster Co. where the award of their fair
market value would not compensate the victim for her loss.
The car seat and roof rack were not personal effects, and
the state presented no testimony from the victim that these
items had significance such that she would not receive just
compensation if she were only awarded their fair market
value. No such inference could be drawn from the evidence.
Further, the state did not present any evidence in the trial
court that the car seat and roof rack had no market value at
170 State v. De Verteuil
the relevant time and place.2 As a result, the state did not
establish that an exception to the general rule of market
value at the time and place of the destruction of the personal
property applied.
In sum, the trial court erred in awarding restitu-
tion for the car seat and roof rack based on an alternative
method of valuation, namely by incorrectly awarding the
original purchase price of the items as new items without
any depreciation for their value at the time and place that
defendant’s criminal conduct destroyed those items.
Restitution award partially vacated; remanded for
resentencing; otherwise affirmed.
2
We have previously noted that “a party may always prove that there is no
market for property other than personal household goods as a precondition to
offering alternative methods of valuation.” Hayes Oyster Co., 170 Or App at 228.
We recognize the possibility that, unlike many used goods, there may not be a
significant market for used infant car seats due to concerns regarding their prior
use and safety. As noted, however, the parties did not present evidence regarding
the market value for their used car seat.