Oregon Supeme Ct - June 30, 2016
by: Amanda Alvarez Thibeault • June 30, 2016 • no comments
Restitution for Stolen Goods – Must Look at Market to Which Victim Would Resort To For Replacement
When a defendant is ordered to pay restitution for theft in a criminal proceeding, the amount of restitution is to be based on the reasonable market value of the stolen goods on the market to which the victim would resort to in order to replace the stolen goods, as well as economic damages that have been proven, including lost profits.
Here, the defendant shoplifted 15 pairs of jeans from a Macy’s retail department store and was convicted of one count of theft in the second degree. The prosecutor sought restitution for Macy’s economic damages based on the retail price of the jeans at the time and place of the theft. Defendant argued that the restitution instead should be based on the value of the jeans on the wholesale market – the market to which Macy’s would resort to replace the jeans – and any lost profits that Macy’s could prove. The trial court disagreed with the defendant and awarded restitution based on the retail value of the jeans. The Court of Appeals affirmed.
On review, the Oregon Supreme Court reverses both the trial court and the Court of Appeals, holding that the proper calculation of “economic damages” requires that the court examine the reasonable market value of the stolen goods on the market to which the victim would resort to replace the stolen property. “To permit the use of the retail market would potentially permit a retail seller to recover more than its actual losses. When a retailer seller recovers the retail value of stolen goods, it recovers not only the wholesale cost of those goods, but also the profits it anticipated it would make from the sale of those goods. If the retailer actually loses such profits, it is entitled to recover them. But if the retailer does not lose such profits, then recovery of the retail value of the goods grants the seller more than is just.”
Here, because the state did not prove that the victim incurred any lost profits, the victim’s recovery was limited to the wholesale value of the jeans, because that is where the retailer would have gone to replace the stolen property. State v. Islam, 359 Or. 796 (2016)
Defendant’s Silence in Response to Statements – Adoptive Admissions
If a party offers evidence to demonstrate that the listener intended to adopt or approve the contents of the statements to which the listener did not respond, the evidence must meet the requirements of an adoptive admission.
Here, the state in a prosecution for rape offered defendant’s silence in response to the victim’s messages to show that the defendant did not react to the messages as an innocent person would have been expected to react. The trial court admitted the messages and defendant’s silence. On appeal, the Court of Appeals affirmed, holding that the state had offered the messages for the non-hearsay purpose of arguing “inferences to the jury regarding defendant’s choice in not responding to the messages.”
On review, the Oregon Supreme Court reverses the Court of Appeals. Considering the text messages and defendant’s silence in combination with one another, the messages were “statements” for the purposes of the hearsay rule and the evidence was not admissible for the non-hearsay purpose of demonstrating the effect on the defendant. Because the state offered the evidence to prove the truth of the matter asserted – that defendant had raped the victim, the evidence was hearsay and only admissible if it met a hearsay exception. Moreover, if the state was hoping to offer the evidence to demonstrate that the listener intended to adopt or approve the contents of the statements to which the listener did not respond, the evidence must meet the requirements of an adoptive admission. Because the trial court found that the evidence was not admissible as an adoptive admission or “for its effect on the listener,” it was not admissible. State v. Schiller-Munneman, 359 Or. 808 (2016)
