State v. Pagenkopf, 939 N.W.2d 2

Background

In Oct. 2018 Mark Pagenkopf broke into a 2005 Chrysler Sebring, damaging the radio, speedometer glass, and HVAC controls, and stole about $400 from the trunk.
Victim did not repair the vehicle before an unrelated Dec. 2018 collision that totaled the car; the victim received roughly $2,000 from the other driver’s insurer.
At a July 2019 restitution hearing the State introduced a repair estimate of $1,914.35 and sought total restitution of $2,314.35 (repair estimate + $400 stolen property). Pagenkopf did not contest the estimate.
The victim testified she did not believe the insurance payout was reduced for the vandalism; no evidence was introduced on the car’s fair market value at total loss.
The district court awarded $2,314.35 in restitution; Pagenkopf appealed arguing the victim incurred no actual expense and the court erred by not considering the subsequent total loss/insurance payment.
The North Dakota Supreme Court affirmed the restitution award, holding the district court did not abuse its discretion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether restitution may be awarded for damage not repaired and for which the victim incurred no out‑of‑pocket expense	State: Yes — "damages sustained" is distinct from "expenses actually incurred"; victim sustained damage and evidence (repair estimate + stolen property value) supports restitution	Pagenkopf: No — victim incurred no actual expense and the subsequent total loss/insurance payout eliminated or mitigated damages	Court: Affirmed — victim sustained damages even without repairs; restitution may be based on reasonable damages shown by estimate and testimony
Whether the court must consider subsequent third‑party insurance payment/total loss (Marsy’s Law/Art. I, §25) when setting restitution	State: Subsequent accident/insurance payout does not automatically preclude or reduce restitution absent proof; Marsy’s Law does not change statutory restitution analysis	Pagenkopf: Court should offset restitution to avoid double recovery because the insurer paid the victim after the car was totaled	Court: Marsy’s Law does not alter statutory restitution; district court may consider subsequent payments but here refusing to deduct was within discretion given the evidence presented
Whether the amount awarded was supported by sufficient evidence or was an abuse of discretion	State: Repair estimate and victim’s testimony satisfy preponderance standard for reasonable damages	Pagenkopf: Lack of evidence on fair market value after total loss and on insurance offsets means award was unsupported	Court: No abuse — State met its burden with estimate and testimony; award within district court’s broad discretion

Key Cases Cited

State v. Rogers, 919 N.W.2d 193 (N.D. 2018) (standard of review and district court discretion for restitution awards)
State v. Bruce, 907 N.W.2d 773 (N.D. 2018) (insurance proceeds do not automatically bar restitution)
State v. Kostelecky, 906 N.W.2d 77 (N.D. 2018) (Marsy’s Law does not change the amount of restitution authorized by statute)
State v. Tupa, 691 N.W.2d 579 (N.D. 2005) (reasonable damages may include diminution, replacement, or repair; district court has broad discretion in calculating restitution)
State v. Gendron, 747 N.W.2d 125 (N.D. 2008) (court may consider return/salvage value or other mitigation in setting restitution)
State v. Kleppe, 800 N.W.2d 311 (N.D. 2011) (State bears burden to prove restitution by a preponderance of the evidence)