State v. ONISHCHENKO
249 Or. App. 470
Or. Ct. App.2012Background
- Defendant pleaded guilty to aggravated theft in the first degree for stealing a large quantity of new shoes from Savoy, whose store had recently gone out of business.
- Savoy stored over 1,500 pairs of new shoes in a warehouse and planned to sell them to another retailer; defendant gained access and sold them to secondhand stores.
- Some stolen shoes were recovered and returned, but they had been removed from original packaging and could no longer be sold as new.
- The state sought restitution and a compensatory fine based on Savoy’s damages; the records showed wholesale cost of $106,024.29 and retail prices totaling $175,202.20.
- Savoy testified the wholesale price reflected the value of the shoes at the time of theft; he did not testify to depreciation since the shoes were under a year old.
- The trial court determined market value was the price Savoy paid, deducted value of recovered shoes, and imposed a compensatory fine of $102,413.04.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Savoy's purchase price proper market value for economic damages? | Savoy’s price represents value; market value equals what he paid. | Shoes depreciate; market value should be lower than purchase price. | Yes; record supported using purchase price as market value. |
| May a compensatory fine exceed the victim's economic damages? | Once economic damages exist, the court may impose up to the statutory maximum. | Limit to actual economic damages; fine cannot exceed. | Court did not err based on evidence of damages; max was not reached and other arguments not decided. |
Key Cases Cited
- State v. Haines, 238 Or.App. 431 (2010) (establishes prerequisites for compensatory fines)
- State v. Donahue, 165 Or.App. 143 (2000) (civil-liability nexus for compensatory fines)
- State v. Barkley, 315 Or. 420 (1993) (economic damages must be pecuniary and recoverable in civil action)
- State v. Dillon, 292 Or. 172 (1981) (damages must be special and recoverable in civil action)
- Callaghan, 33 Or.App. 49 (1978) (market value in theft cases is the price goods would fetch in normal market)
- Wise, 150 Or. App. 449 (1997) (market value as value in the market where goods were traded)
- Yocum, 247 Or.App. 507 (2011) (evidence of market value need not be exact; any evidence can support value)
- Lewis v. Worldwide Imports, Inc., 238 Or. 580 (1964) (owner testimony can establish market value)