State v. Manwiller
| Decision Date | 12 December 2018 |
| Docket Number | A162554 |
| Citation | 435 P.3d 770,295 Or.App. 370 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Troy Allan MANWILLER, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Julie A. Smith, Portland, argued the cause for appellant. Also on the brief was Cosgrave Vergeer Kester LLP.
Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
Defendant appeals a judgment of conviction for second-degree theft, ORS 164.045. As part of his sentence, the trial court ordered defendant to pay the victim, his former employer, restitution in the amount of $25,176.56 for economic damages caused by defendant’s theft of the victim’s metal. The $25,176.56 of restitution imposed represented the $37,676.56 in economic damages that the state had established that defendant had caused to the victim by stealing the metal, less a total of $12,500 comprised of (1) $10,000 that the trial court found was precluded by a prior small claims action that the victim had brought against defendant, which resulted in a $2,500 judgment in favor of the victim, and (2) $2,500 that defendant had paid to the victim to satisfy the small claims judgment.
On appeal, defendant assigns error to the trial court’s imposition of restitution, arguing that the court should have concluded that issues decided in the small claims action, or the judgment resulting from the small claims action, rendered it without authority to impose any restitution for the metal that defendant stole. For the reasons that follow, we conclude that the trial court did not err when it concluded that the small claims action did not render it without authority to impose any restitution against defendant. Accordingly, we affirm.
We begin by stating the facts in the light most favorable to the state. State v. McClelland , 278 Or. App. 138, 139, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016) (). The victim in this case is a company that principally manufactures bath and kitchen products. Defendant ran the victim’s foundry. Between July 2012 and December 2013, defendant, for his own benefit, manufactured products using the victim’s foundry, production resources, and, importantly here, metal. Defendant’s employment was terminated in December 2013 after the victim learned of the theft.
In October 2014, the victim instituted a small claims action against defendant seeking to recover $10,000 in damages—the statutory cap for damages in small claims actions—for defendant’s "unapproved use of [the victim’s] foundry, equipment, gas, labor, and metal." See ORS 46.405(3) (). At the hearing in the small claims action, defendant admitted to using the victim’s foundry and gas but denied using its metal. He testified that he had "cancelled checks and invoices" reflecting his own purchases of metal and that he had given that information to detectives. As a result, the judge presiding over the small claims action expressed "concern" that the victim had not proven its case:
A witness for the victim responded that she could not "really tie it to" defendant.
The small claims court ultimately determined that, although defendant "probably did" steal the victim’s metal, the victim had not met its burden of proof as to the metal theft:
The small claims court went on to note, however, that, if there was a criminal case, the victim would be made whole via restitution:
After the conclusion of the small claims action, defendant paid the victim $2,500 to satisfy the resulting judgment.
Defendant was subsequently indicted for three counts of aggravated first-degree theft, ORS 164.057, relating to three separate time periods. Each count alleged that defendant "did unlawfully and knowingly commit theft of property of the total value of $10,000 or more, the property of [the victim]." See ORS 164.057(1)(b) (). Defendant pleaded no contest to the lesser-included offense of second-degree theft, ORS 164.045, on Count 1. Defendant also admitted to the conduct charged in Count 2 and Count 3 "for the purposes of ordering restitution." The trial court accepted defendant’s admission and no contest plea. The state explained to the trial court during the restitution hearing that the charges in the indictment were "based on" the victim’s "loss of * * * metals."
Following defendant’s plea and admission, the state, as it was required to do under ORS 137.106(1)(a), presented evidence to the trial court regarding the amount of the victim’s economic damages. That evidence included testimony from the victim’s office manager, as well as a spreadsheet that the office manager created at the request of law enforcement, reflecting that over $37,000 worth of metal had disappeared from the victim’s foundry during the time periods covered by the indictment. The state ultimately requested that the trial court impose $37,676.56 in restitution for defendant’s "unauthorized use of metals." Despite his admission to the conduct alleged in Count 2 and Count 3 for the purposes of ordering restitution and his no contest plea to the lesser-included offense of second-degree theft, defendant, for his part, again testified that he did not steal metal from the victim. He submitted into evidence copies of checks and invoices purporting to reflect that he had purchased his own aluminum during the time periods covered by the indictment and argued that "the [s]tate[ ] * * * or the victims [were] * * * collaterally [estopped] from seeking full restitution" from the trial court for the metal theft given the prior small claims action.
The trial court found that the victim’s office manager was "credible" and that "everything she outlined, as far as how she came up with the figures, made sense." In contrast, the trial court did not credit defendant’s testimony, finding instead that "it definitely sounds like there was theft going on." It also noted, with respect to the checks defendant submitted into evidence, that those "made it look like [defendant] was trying to kind of mix a little bit of credibility * * * to kind of cover * * * some of the other stuff that he was doing." The trial court ultimately held that "the [s]mall [c]laims action does * * * provide issue preclusion for $10,000," the maximum amount of damages that could be awarded in that action. Additionally, it reduced the restitution that it awarded by $2,500—the amount that defendant had already paid to the victim. Consequently, the trial court imposed restitution in the amount of $25,176.56, reflecting the $37,676.56 in economic damages that the state had established that defendant had caused to the victim by stealing the metal, less the $10,000 that it held was precluded by the small claims action and the $2,500 that the victim had already received for defendant’s use of the victim’s "shop and * * * gas." The trial court noted that it thought the plea offer was "exceptionally light," but that it would "go along with the plea offer" because it was ordering "that much restitution."
On appeal, defendant argues that the trial court erred "in failing to hold that the small claims judgment precludes any restitution for the metal" in the criminal case. (Emphasis in defendant’s brief.) Defendant contends that, pursuant to the Supreme Court’s decision in State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016), courts must apply certain "civil concepts" to restitution proceedings.2 Defendant maintains that common-law issue preclusion and claim preclusion, as well as what defendant characterizes as "statutory preclusion rules"—viz. , ORS 43.130(2), ORS 43.160, and ORS 46.485(4) —are such concepts. According to defendant, because those doctrines and statutes would bar the victim from obtaining an award of damages in a subsequent civil action for defendant’s theft of metal, the trial court lacked authority to award any restitution to the victim here. Defendant requests that we "reverse the restitution award."
The state argues, among other points, that issue preclusion would not preclude a civil action by the victim because "preclusion would be unfair under the circumstances of this case." The state requests that we "affirm the trial court’s restitution order."3
"We review the trial court’s legal conclusion with respect to its authority to award restitution for errors of law, and we are bound by the court’s findings of fact if there is evidence in the record to support them." State v. Carson , 238 Or. App. 188, 191, 243 P.3d 73 (2010) (internal citation omitted).
We turn first to issue preclusion. "Issue preclusion prevents parties from relitigating issues that were actually ...
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