318 ORAPP 657 - State v. Selmer

                                  657

Submitted March 4; award of compensatory fine reversed, remanded for entry
   of amended judgment omitting compensatory fine, otherwise affirmed
                             March 30, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  KEVIN LEROY SELMER,
                     Defendant-Appellant.
                Deschutes County Circuit Court
                     19CR01870; A175265

509 P3d 187

Bethany P. Flint, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Award of compensatory fine reversed; remanded for entry
of amended judgment omitting compensatory fine; otherwise affirmed.
658 State v. Selmer

PER CURIAM
Defendant, who pleaded guilty to a wildlife violation for assisting another in hunting or possessing wildlife,
ORS 498.002, appeals a judgment imposing a $3,000 compensatory fine. He asserts that a compensatory fine requires
proof of economic damages and that a defendant’s criminal
activities caused those damages, but that the state proved
neither in this case. The state concedes that on this record,
it did not prove economic damages. Because we agree with
the state, we reverse on that basis and do not reach defendant’s causation argument.
Defendant assisted a friend in transporting a buck
that the friend had shot out of season. The trial court agreed
with the state that because wildlife is the property of the
state, and ORS 496.705(2)(d) provides statutory damages
for taking such an animal, the court could impose the compensatory fine. In State v. Shockey,

285 Or App 718, 720

398 P3d 444

, modified on recons,

287 Or App 236

399 P3d 491

 (2017), this court explained that ORS 496.705, which
authorizes the Department of Fish and Wildlife to file a civil
action to recover specified statutory damages for unlawful
taking of various types of wildlife, did not “supply the values
of wildlife for purposes of ORS 137.106,” which provides for
restitution in criminal cases. On reconsideration in Shockey,
we agreed with the defendant that because there was no
evidence the state had suffered any economic damages, the
court was foreclosed from imposing either restitution or a
compensatory fine.

287 Or App at 238

. Although the parties
correctly observe that unlike restitution, the amount of a
compensatory fine is not tied to a specific amount of economic damages, nonetheless, some economic damages must
be proven in order to support the award of a compensatory
fine. State v. Grismore,

283 Or App 71, 76

388 P3d 1144

(2016). No economic damages were proven in the present
case.
         Award of compensatory fine reversed; remanded
for entry of amended judgment omitting compensatory fine;
otherwise affirmed.