State v. Plagmann/Samora ( 2020 )

785
Argued and submitted February 11, affirmed June 17, 2020
STATE OF OREGON,
Plaintiff,
v.
CODY JOHN DALE PLAGMANN,
Defendant.
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN MICHAEL SAMORA,
Defendant-Appellant.
Gilliam County Circuit Court
16CR26715; A168028 (Control)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CODY JOHN DALE PLAGMANN,
Defendant-Appellant.
STATE OF OREGON,
Plaintiff,
v.
JUSTIN MICHAEL SAMORA,
Defendant.
Gilliam County Circuit Court
16CR29689; A168075
469 P3d 288
Defendants unlawfully killed, or helped others kill, two bighorn sheep. They
both pleaded guilty to two counts of “Taking, Angling, Hunting, or Trapping in
Violation of Wildlife Law or Rule,” ORS 498.002, and the trial court entered a
general judgment reflecting those pleas and sentencing both defendants to pro-
bation. Following restitution hearings, the trial court entered a supplemental
judgment, ordering each defendant to pay $1,522 in restitution. On appeal, defen-
dants challenge the imposition of restitution, arguing that the state did not prove
that it suffered economic damages from the loss of the sheep because it neither
replaced them nor proved that it suffered an actual loss when the sheep were
killed. Held: The record adequately supports the trial court’s determination that
the state suffered economic damages. The state presented evidence from which
the factfinder could infer what it would have cost to replace the individual sheep,
786 State v. Plagmann/Samora
had the state chosen to do so, and also the value of the herd of which the sheep
were part. Accordingly, the trial court did not err when it imposed restitution.
Affirmed.
John A. Olson, Judge.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellants. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Hadlock, Judge pro tempore.
HADLOCK, J. pro tempore.
Affirmed.
Cite as 304 Or App 785 (2020) 787
HADLOCK, J. pro tempore
Defendants unlawfully killed, or helped others kill,
two bighorn sheep. They both pleaded guilty to two counts
of “Taking, Angling, Hunting, or Trapping in Violation of
Wildlife Law or Rule,” ORS 498.002, and the trial court
entered a general judgment reflecting those pleas and sen-
tencing both defendants to probation.1 Following restitution
hearings, the trial court entered a supplemental judgment
ordering each defendant to pay “$1,522 in restitution for the
illegal take/possession of one bighorn sheep.” On appeal,
defendants challenge the imposition of restitution, arguing
that the state did not prove that it suffered any economic
damages from the loss of the sheep, given that the state did
not “replace[ ] the two bighorn sheep at issue.” In response,
the state contends that it presented sufficient evidence to
support a finding that the state suffered economic damages
when the sheep were killed. We conclude that the record
adequately supports the trial court’s determination that the
state suffered economic damages. Accordingly, we affirm.
To provide context for the parties’ arguments, we
summarize the pertinent principles governing imposition of
restitution in criminal cases, keeping in mind that we are
bound by the trial court’s factual findings if “there is any
evidence in the record to support them” and that we review
the ultimate legal determination of whether the legal pre-
requisites for restitution have been met “for errors of law.”
State v. Smith, 291 Or App 785, 788, 420 P3d 644 (2018).
Crime victims are entitled to receive restitution in
the full amount of economic damages caused by defendants’
1
ORS 498.002(1), the statute that defendants acknowledged violating, pro-
vides, in part, that “[n]o person shall angle for, take, hunt, trap or possess, or
assist another in angling for, taking, hunting, trapping or possessing any wildlife
in violation of the wildlife laws or of any rule promulgated pursuant thereto.”
Defendants asserted in the trial court that they had not participated in killing
the two bighorn sheep at issue, and they claimed that they had only removed
parts from sheep that somebody else had already killed. However, following res-
titution proceedings, the trial court found that the state had presented “sufficient
evidence to prove that the defendants took or assisted in the taking of the two
bighorn sheep, and did not merely unlawfully possess the bighorn sheep,” and
the court also referred to defendants as having “unlawfully killed” the sheep.
Cf. ORS 496.004(16) (“ ‘Take’ means to kill or obtain possession or control of any
wildlife.”). Defendants do not challenge those findings for purposes of this appeal.
788 State v. Plagmann/Samora
crimes. ORS 137.106(1)(a); see Or Const, Art I, § 42(1)(d)
(a crime victim has “[t]he right to receive prompt restitution
from the convicted criminal who caused the victim’s loss or
injury”). When restitution is sought, the state has the bur-
den of proving “(1) criminal activities, (2) economic dam-
ages, and (3) a causal relationship between the two.” State
v. Ixcolin-Otzoy, 288 Or App 103, 104, 406 P3d 100 (2017),
rev den, 362 Or 699 (2018) (internal quotation marks and
citation omitted).
As detailed below, the parties’ arguments on appeal
center on whether the state met its burden of proving that
it suffered economic damages as a result of defendants’
crimes. As used in the restitution statute, ORS 137.106, the
term “economic damages” generally “means verifiable mon-
etary losses.” ORS 31.710(2)(a); see ORS 137.103(2)(a) (for
purposes of the restitution statute, “economic damages” has
the meaning set out in ORS 31.710, with one exception not
pertinent here).2 “Objectively verifiable monetary losses * * *
include monetary losses that a victim could recover if the
victim were a plaintiff in a civil action against the defen-
dant.” State v. Islam, 359 Or 796, 801, 377 P3d 533 (2016).
For example, if a defendant’s crimes would give rise to a con-
version claim, then the crime victim is entitled to restitution
in an amount equal to the damages that the victim could
recover in that kind of civil action. Id. at 801-02. The mea-
sure of “economic damages” for conversion ordinarily is “the
reasonable market value of the goods converted at the time
and place of conversion.” State v. Chastain, 299 Or App 646,
650, 451 P3d 646 (2019), rev den, 366 Or 257 (2020) (cita-
tions and internal quotation marks omitted). Depending
on circumstances, that value sometimes may be calculated
by determining what it would reasonably cost the victim to
replace the converted property. Islam, 359 Or at 806.
2
ORS 31.710(2)(a) provides, in its entirety:
“ ‘Economic damages’ means objectively verifiable monetary losses includ-
ing but not limited to reasonable charges necessarily incurred for medical,
hospital, nursing and rehabilitative services and other health care services,
burial and memorial expenses, loss of income and past and future impair-
ment of earning capacity, reasonable and necessary expenses incurred for
substitute domestic services, recurring loss to an estate, damage to repu-
tation that is economically verifiable, 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.”
Cite as 304 Or App 785 (2020) 789
At the restitution hearing in this case, the state pre-
sented a variety of evidence about bighorn sheep in Oregon,
none of which defendants challenged. A biologist with the
Oregon Department of Fish and Wildlife (ODFW) testified
about the agency’s management plan for bighorn sheep,
which had at one point been extirpated in Oregon. The biol-
ogist explained that the state began reintroducing bighorn
sheep to Oregon in the 1950s and has managed sheep pop-
ulations since then. ODFW’s efforts include management
of species diversity, population, habitat, and disease. Sheep
are moved between different populations and herds within
Oregon, and some sheep are moved out of state. Bighorn
sheep are not “a fast-growing population,” and ODFW some-
times augments individual herds.
The sheep that defendants participated in killing
were part of what ODFW refers to as “the I-84 herd,” and
they were of breeding age. ODFW manages the I-84 herd
“solely for genetic diversity,” using sheep from that herd to
“augment populations in other parts of the state and outside
of the state if needed.” In the weeks preceding the restitu-
tion hearing in this case, ODFW had captured some sheep
from the I-84 herd and moved them to other locations. The
biologist testified about the costs that the agency incurs to
capture and transport sheep during that kind of operation,
including collaring some of the sheep, taking biological sam-
ples for testing, and contracting for helicopter transport. The
state also introduced documentary evidence of those costs.
ODFW’s budget for managing bighorn sheep comes
partly from auctioning and raffling tags for lawful hunting
of the sheep. Demand for the tags is high, far exceeding the
number of tags issued, and tags that are auctioned sell for
thousands of dollars; in 2016, the average amount spent on
each tag issued exceeded $9,000. However, hunting is not
allowed in the I-84 unit, even with a tag, and defendants’
crimes did not affect the number of hunting tags subse-
quently issued by the state.
In arguing for restitution, the state acknowledged
that defendants’ taking of the two bighorn sheep had not
caused the state to lose revenue from hunting tags. However,
the state argued, the trial court could determine the value of
790 State v. Plagmann/Samora
the sheep by determining the cost that ODFW would incur
“if it were to try to replace” those sheep. Alternatively, the
state suggested that the trial court could assign a value to
the sheep that took into account the high price of hunting
tags. The state also noted that ODFW’s “ability to use the
I-84 herd to augment other populations has been affected.”
The trial court granted the state’s request for resti-
tution and issued a written opinion explaining its decision.
Given the lack of an “actual market for the buying or sell-
ing of bighorn sheep,” the court determined that “the proper
metric for establishing restitution in this case” would be
replacement cost, based on “the estimated average cost of
capturing bighorn sheep and introducing them into the I-84
population.” The court calculated that cost as $1,522 per
sheep, based on ODFW’s evidence of amounts it had recently
spent to capture and relocate sheep out of the I-84 popula-
tion into other herds. In accordance with that determina-
tion, the court entered supplemental judgments ordering
each defendant to pay $1,522 in restitution.
On appeal, defendants argue that the trial court
erred in ordering restitution because the state did not prove
that it suffered any economic damages from the loss of the
two bighorn sheep from the I-84 herd. Significantly, defen-
dants do not challenge the trial court’s calculation of the
monetary value of each sheep. Rather, they argue that the
trial court’s analysis should not have reached the point of
determining each sheep’s value because the state failed to
prove that it suffered any economic damages as a result of
defendants’ crimes. That is because, according to defen-
dants, the state neither replaced the two sheep that were
killed nor proffered any other evidence that it suffered an
actual loss when that happened.
To the extent that defendants’ theory is simply that
a victim of theft does not suffer “economic losses” unless
the victim replaces the stolen property, we disagree. In the
civil context, a plaintiff whose property has been converted
may recover damages based on reasonable market value—
in some cases, a replacement cost—even when that cost is
not verified (as would happen if the plaintiff had actually
replaced the converted property) but is merely verifiable (as
Cite as 304 Or App 785 (2020) 791
when the plaintiff proffers evidence of what it would cost to
replace the property, even though that has not happened).
See State v. Yocum, 247 Or App 507, 513, 269 P3d 113 (2011),
rev den, 352 Or 25 (2012) (rejecting argument that evidence
of what it would cost to replace stolen diamond earrings was
not sufficient to establish that the victim suffered economic
damages; noting that “the key is the extent to which dam-
ages are capable of verification by objective facts, not the
extent to which they are verified at trial” (internal quota-
tion marks omitted; emphasis in original)). Thus, when the
plaintiff has proved a conversion claim, the plaintiff may
recover damages based on the converted property’s market
value even when the plaintiff has not replaced that property.
Cf. Islam, 359 Or at 803 (rejecting argument that “conver-
sion damages depend solely on the amount that the victim
‘lost,’ as measured by victim’s out-of-pocket replacement cost
for items stolen” and observing that a victim “need not nec-
essarily demonstrate an out-of-pocket loss” to show that the
person has “ ‘economic damages’ as that term is defined in
ORS 31.710(2)(a)”). Similarly, restitution may be available to
the victim of theft in a criminal case, even though the victim
has not replaced the stolen property.
Defendants also make a more nuanced argument,
which they amplified during oral argument to this court,
positing a hypothetical example involving a stolen bicycle.
According to defendants, a person whose bicycle is stolen
does not suffer “economic damages” if the person never
intended to use the bicycle again and left it in a place where
it might be taken, even though the person did not disclaim
an interest in the bike. As we understand defendants’ argu-
ment, it reduces to this: Because the state has the burden
of proving that a crime victim has suffered “economic dam-
ages,” in a case involving stolen or destroyed property, the
state must prove not only that the property had objective
economic value, but that the victim subjectively attached
economic value to that property—otherwise, the victim was
not “damaged” when the property was lost or destroyed. In
that situation, defendants contend, the victim did not suffer
“losses,” as the definition of “economic damages” requires.
See ORS 31.710(2)(a) (“ ‘Economic damages’ means objec-
tively verifiable monetary losses * * *.”).
792 State v. Plagmann/Samora
Applying that theory here, defendants contend that
the state did not establish that it suffered “monetary losses”
when the sheep died, given that it did not replace the two
sheep in the I-84 herd and did not establish an intention to
do so and given that it did not lose any hunting-tag or other
revenue when the sheep were killed. Therefore, defendants
conclude, the state did not prove that it suffered “economic
damages.”
As intriguing as the question framed by defendants’
stolen-bicycle hypothetical might be, we need not resolve in
this case whether a victim of theft has suffered economic
damages when the victim did not personally attribute any
value to the property that was stolen, even though the prop-
erty objectively had monetary value. The record in this case
supports a finding that the state did attach value to the two
bighorn sheep, a value that was capable of objective verifi-
cation and, therefore, represented a “monetary loss” to the
state. Cf. ORS 498.002(1) (“Wildlife is the property of the
state.”). The record includes evidence from which the fact-
finder could infer what it would have cost ODFW to replace
the two sheep lost from the I-84 herd, had it chosen to do
so.3 The record also includes evidence of the value of the
I-84 herd to the state’s efforts to maintain the health, pop-
ulation, and genetic diversity of bighorn sheep in Oregon—
sheep in which the state has a property interest and which
the state holds in trust for the people of Oregon. See State v.
Dickerson, 356 Or 822, 834-35, 345 P3d 447 (2015) (discuss-
ing state’s interest in wildlife). Together with evidence that
the state expends significant funds in association with those
efforts, the record is sufficient to support a finding both that
the sheep have objectively verifiable monetary value and
that the state—as represented by ODFW—places subjec-
tive value on the sheep, given its ongoing work to protect
and support them. Thus, even assuming, without deciding,
that defendant is correct that a crime victim whose prop-
erty is stolen or destroyed suffers economic damages only
3
Although the state’s evidence related to the cost of moving sheep from the
I-84 herd elsewhere, the court used that as a basis for calculating the amount
it would cost to relocate sheep to that herd, if ODFW chose to do that. As noted,
defendants do not challenge the trial court’s calculation of value; they challenge
only the court’s determination that the state proved that it suffered economic
damages at all.
Cite as 304 Or App 785 (2020) 793
if the victim subjectively attached economic value to that
property, the record here is sufficient to meet that posited
requirement.
In sum, the record adequately supports the trial
court’s determination that defendants’ crimes caused the
state to suffer economic damages. Defendants have not
established that the trial court erred when it ordered them
to pay restitution.
Affirmed.