State v. Onishchenko

• Decision Date: 25 April 2012
• Docket Number: C091937CR; A145065.
• Citation: 278 P.3d 63,249 Or.App. 470
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Daniel A. ONISHCHENKO, Defendant–Appellant.
• Court: Oregon Court of Appeals

249 Or.App. 470

278 P.3d 63

STATE of Oregon, Plaintiff–Respondent,

v.Daniel A. ONISHCHENKO, Defendant–Appellant.

C091937CR; A145065.

Court of Appeals of Oregon.

Submitted July 20, 2011.

Decided April 25, 2012.

Erin Galli and Chilton & Galli, LLC, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Linda Wicks, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and BREWER, Judge, and DUNCAN, Judge.

DUNCAN, J.

This is a criminal case in which defendant was convicted, on a guilty plea, of aggravated theft in the first degree, ORS 164.057, for stealing a large number of new shoes from the victim, Savoy, whose retail shoe store had recently gone out of business. On appeal, defendant assigns error to the trial court's imposition of a compensatory fine of $102,413.04, arguing that the amount of the fine is not supported by the evidentiary record. We disagree and, therefore, affirm.

The relevant facts are as follows. After his retail shoe store went out of business, Savoy put his inventory—over 1,500 pairs of new shoes—in a warehouse. He planned to sell the shoes to another retailer. In the meantime, Savoy allowed defendant to sell small quantities of the shoes on an Internet auction site, and he allowed defendant access to the warehouse for that purpose. When Savoy brought a retailer to the warehouse to inspect the shoes as a prospective buyer, Savoy discovered that all of the shoes were gone. Defendant had taken the shoes and had sold them to secondhand stores. Some of the stolen shoes were recovered from the secondhand stores and returned to Savoy, but they had been removed from their originalpackaging and, as a result, could no longer be sold as new shoes.

The state sought restitution for Savoy, as well as for the secondhand stores from which shoes were recovered. At the restitution hearing, the state presented Savoy's inventory records to establish the value of the shoes. The records showed the wholesale price Savoy had paid for each pair of shoes, as well as the final retail price Savoy had set for each pair before his store went out of business. According to the records, the wholesale prices Savoy had paid for the shoes totaled $106,024.29, and the retail prices he had set for the shoes totaled $175,202.20. Because Savoy was no longer in the retail shoe business, he testified that the wholesale prices of the shoes reflected the value of the shoes at the time they were stolen. That is, he testified that the shoes were worth what he had paid for them.

Savoy testified that, as a general matter, shoes tend to lose value over time, but he did not testify as to how quickly or how much, nor did he testify that the shoes in his inventory—all of which were less than a year old—had lost value. Instead, he reiterated, “All I have to go by is what I paid for these shoes. We can't argue that [they have] less or more value.”

As mentioned, Savoy had a prospective buyer for his inventory. But because defendant stole the shoes before the buyer came to inspect them, the buyer never made an offer for the shoes. Savoy did not testify about how much he expected the offer to be. He did, however, testify that, after his store went out of business, he was “trying to move the shoes in any way possible,” which included allowing defendant to sell a few pairs of shoes at a time on the Internet auction site for “anything we could get.”

Based on Savoy's testimony and records, the state asked the trial court to order defendant to reimburse the amount Savoy had paid for the shoes. Specifically, the state argued:

“[T]he crime that took place here resulted in economic damages to Mr. Savoy. Nobody disputes that Mr. Savoy paid $106,000 for those shoes. That's the best indicator of the value of his inventory, $106,000. Perhaps he'd have sold them for 106. * * * Perhaps he would have sold them for 100. Perhaps he would have gotten the deal of his life and sold them for 200,000. That's not the * * * issue for today.

“The issue for today * * * is that to make Mr. Savoy whole, he requires a restitution amount of $106,000. That was the value of his * * * property at the time it was stolen. That's what he paid for it. And he had every intention of reselling it.”

Defendant countered that the court should not use Savoy's purchase price because the shoes had lost value and Savoy would not have been able to sell them for the same amount that he had paid for them:

“[W]hat we're asking you to impose is the fair market value of the merchandise that was taken. I know it's a hard figure to get to. I think that there's some indication that these shoes did have a value and that they may not have as much value as when they were bought.

“I think that according to Mr. Savoy, over time the value declined. If he was going to get some kind of sale to another company for the retail, it would have been less than what he had paid [for them], I think [that] would be clear just from any kind of business knowledge. There's no way that you're getting back everything—the exact amount that you paid for those.”

The trial court agreed with the state and determined that the amount Savoy had paid for the shoes, $106.024.29, reflected the value of the shoes at the time they were stolen. Because some of the shoes were recovered from the secondhand stores, the court determined that Savoy had not lost the full value of all the shoes; the recovered shoes still had some value, even though they could not be sold as new shoes. As the court explained,

“[n]ow, as I understand it, a certain number of shoes were returned. Mr. Savoy says those shoes have no resale value. They obviously have some value. They're shoes. Whether they're donations and you can get a write-off or you can sell them on eBay for ten cents on the dollar, they have some value * * *.

“ * * * I don't know what the value of those shoes are other than the amount that the [secondhand stores] said they were worth, and that is what they paid for them.

“And so I am going to deduct that $3,600 from the 106, and my simple math comes to $102,400. I realize there are some pennies that I'm probably not accounting for, but that's a rounded figure.” ¹

In response to the court clerk's inquiry as to whether it would “be restitution or compensatory,” the trial court answered, “Compensatory fine. It's restitution to the [secondhand] stores and compensatory fine to Mr. Savoy.”

On appeal, defendant assigns error to the trial court's imposition of the compensatory fine. As in the trial court, defendant does not dispute that Savoy suffered economic damages; he disputes only the amount of those damages. He asserts that, as a general matter, a court cannot order a defendant to pay a victim a compensatory fine that exceeds the victim's economic damages, and he further asserts that, in this particular case, the compensatory fine that the court ordered him to pay Savoy exceeds Savoy's economic damages. According to defendant, to calculate Savoy's economic damages, the court needed to determine the market value of the shoes at the time they were stolen, and the court erred in doing so because, by relying on the price Savoy had paid for the shoes, it failed to account for both the shoes' depreciation and Savoy's eagerness to sell them. He argues that the market value of the shoes at the time they were stolen

“would have been significantly less than [the] amount [Savoy had] paid for the shoes. [Savoy] himself testified that * * * shoes lose value over time and that he had been ‘trying to move the shoes in any way possible’ and for ‘anything [he] could get’ after the closure of his store.”

In response, the state argues that, although a victim must have suffered economic damages in order to receive a compensatory fine, the amount of the victim's economic damages does not limit the amount of the compensatory fine that the victim may receive. In other words, according to the state, a trial court can order a defendant to pay a victim a compensatory fine that exceeds the victim's economic damages. In the state's view, “[o]nce the existence of economic damages [has] been established, [a court is] free to impose a compensatory fine up to the maximum amount allowable for the offense for which defendant was convicted.” The statutory maximum fine for defendant's crime of conviction—aggravated theft, a Class B felony—is $250,000. ORS 164.057(2); ORS 161.625(1)(c). Therefore, the state argues, the trial court could have imposed a compensatory fine of up to $250,000, regardless of the amount of Savoy's economic damages. Alternatively, the state argues that, even if the amount of a compensatory fine is limited by the amount of the victim's economic damages, the compensatory fine the trial court imposed did not exceed Savoy's economic damages. According to the state, “there was ample evidence that [Savoy] suffered economic damages—and that those damages were in the amount the court imposed as a compensatory fine.”

As explained below, we conclude that there was sufficient evidence for the trial court to find that Savoy's economic damages were $102,413.04, and therefore, even assuming that those damages limited the amount of the compensatory fine that the trial court could impose, imposition of the $102,413.04 compensatory fine was not error. Accordingly, we do not reach the state's argument that the court could have imposed a compensatory fine in any amount up to the statutory maximum.

We begin our analysis with the relevant statutes. ORS 137.101(1) governs compensatory fines. It provides:

“Whenever the court imposes a fine as penalty for the commission of a crime resulting in injury for which the person injured by the act constituting the crime has a remedy by civil action, unless the issue of punitive damages has been previously decided on a civil case arising out of the same act and transaction, the court may order that the defendant pay any portion of...