344 P.3d 22
Or. Ct. App.2015Background
- Defendant pleaded no contest to second-degree theft for shoplifting 15 pairs of jeans from a Macy’s retail store and stipulated to restitution.
- Trial court and parties agreed restitution measure was "fair market value" per State v. Onishchenko, but disputed whether the relevant market was retail or wholesale.
- Defendant argued wholesale (replacement) value ($35.98/pair; $539.70 total) was proper to avoid awarding Macy’s a profit windfall.
- State argued market value equals the price at which the goods would have sold in the normal course at the time/place of theft (retail).
- Trial court awarded retail value ($68/pair; $1,020 total) and relied on Onishchenko; defendant appealed.
- Court of Appeals affirmed, applying precedents that measure conversion/restitution by reasonable market value at time/place of theft and finding evidence supported the retail market as the relevant market.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper measure of restitution for stolen retail goods | Restitution should be based on market value where goods traded (retail price) | Restitution should be based on wholesale/replacement cost to make victim whole and avoid windfall | Court held retail market value governs; restitution may be retail value if supported by record |
| Whether proof of lost sales/lost profits is required to award retail value | Not required; market value is the relevant measure under conversion/restitution precedents | Required to justify awarding profit margin above replacement cost | Court rejected requirement for lost-profit proof; retail value permissible without profit-proof |
| Effect of amended ORS statutes expanding restitution scope | Amendments broaden restitution to "economic damages," but prior conversion/market-value principles remain applicable | Defendant argued amendments support wholesale/replacement framing | Court treated statutory expansion as encompassing prior civil-conversion framework; market-value rule still controls |
| Whether existence of wholesale evidence changes outcome | Presence of wholesale evidence does not displace market determination tied to time/place | Wholesale evidence proves replacement cost and thus proper measure | Court held retail market supported by where goods were taken; wholesale evidence immaterial to changing market determination |
Key Cases Cited
- State v. Onishchenko, 249 Or. App. 470 (Or. App. 2012) (adopts market-value measure: price at which goods would probably have been sold in regular course at time/place of theft)
- State v. Wise, 150 Or. App. 449 (Or. App. 1997) (measure for conversion damages is reasonable market value at time taken)
- State v. Labar, 259 Or. App. 334 (Or. App. 2013) (restitution based on retail value of stolen goods upheld)
- State v. Ramos, 267 Or. App. 164 (Or. App. 2014) (statutory amendments expanded restitution to "economic damages" beyond civil-recoverable limits)
- State v. Callaghan, 33 Or. App. 49 (Or. App. 1978) (discussion of market value for classification/valuation purposes)