State v. Boyar

                                       678

     Submitted February 2, affirmed October 18, petition for review denied
                      December 21, 2023 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     JASON ANDREW BOYAR,
                        Defendant-Appellant.
                   Tillamook County Circuit Court
                        20CR53616; A176596
                                  

     In this criminal case, defendant appeals from the trial court’s Supplemental
Judgment and Money Award imposing restitution in the amount of $6,938 for
damage to the doors of a public transit facility owned by the City of Tillamook.
Defendant assigns error to that award, arguing that the trial court erred in
imposing the replacement cost of the doors rather than the repair cost and that
the evidence did not establish that the replacement cost was reasonable. He also
argues that the trial court valued the replacement cost of the doors incorrectly by
not accounting for depreciation. Held: The state’s evidence, which included photographs, testimony, estimates, and documentation of costs, was sufficient to prove
that the doors could not be readily repaired and that it would cost less to replace
them. The amount of restitution imposed by the trial court was the cost required
to restore the property to its original condition, which is the appropriate measure
of restitution in cases involving damage to real property.
    Affirmed.



    Jonathan R. Hill, Judge.
    Submitted February 2, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
    MOONEY, J.
    Affirmed.
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 (2023)                                           679

          MOONEY, J.
          Defendant appeals a Supplemental Judgment and
Money Award imposing restitution based on his “no contest” plea to one count of first-degree criminal mischief,
ORS 164.365, and his agreement to “admit liability for restitution purposes” for damaging the doors of a public transit facility owned by the City of Tillamook.1 The amount of
restitution was left open for the court to determine at sentencing. Defendant assigns error to the trial court’s calculation of restitution to the extent that it includes $6,938 for
the replacement cost of the doors, arguing that “the state
failed to prove the necessity of replacing the doors instead
of performing repairs,” and that, in any event, there was
insufficient evidence to establish the reasonableness of the
replacement cost. He argues, in the alternative, that “the
proper amount of restitution was the fair market value of
the doors at the time they were damaged, accounting for
depreciation.” For reasons we will explain, we affirm.
          We review the trial court’s imposition of restitution
for legal error, remaining mindful that we are bound by the
trial court’s findings, including reasonable inferences, if they
are supported by any evidence in the record. State v. Lobue,

, 

, rev den, 

 (2020). We
review the evidence in the light most favorable to the state.
State v. Smith, 

, 

 (2018).
          A sentencing court is required to order restitution
if it “finds from the evidence presented that a victim suffered economic damages.” ORS 137.106(1)(a). It imposes restitution in an amount “that equals the full amount of the
victim’s economic damages as determined by the court.” 

Restitution is intended to be “penal, not compensatory[,]”
State v. Dillon, 

, 

 (1981), and yet
ORS 137.103(2) nevertheless defines “economic damages”
much the same as that term is defined for civil matters
under ORS 31.705(2)(a). Thus, when imposed as restitution,
economic damages are the “objectively verifiable out-ofpocket losses that a person could recover against the defendant in a civil action arising out of the defendant’s criminal
activities.” State v. De Verteuil, 

, 467
   1
       Defendant accepted the district attorney’s written plea offer.
680                                            State v. Boyar

P3d 80 (2020). A trial court measures property damage by
determining the “reasonable and necessarily incurred costs
due to loss of use of property and reasonable costs incurred
for repair or for replacement of damaged property, whichever is less.” ORS 31.705(2)(a). The state bears the burden of
proving the economic damages that it seeks to include in a
defendant’s sentence as restitution. ORS 137.106(1)(a); State
v. Aguirre-Rodriguez, 

, 

 (2021).
         Contrary to defendant’s assertion, the state presented sufficient evidence that the cost to repair the doors
would be greater than the cost to replace them. Photographs
of the damaged doors were submitted into evidence at the
restitution hearing. The state called the transit center’s
operations coordinator to testify about the damage to the
doors, the ongoing security and water damage issues, and
the need to quickly repair the doors to eliminate those
issues. That witness explained that the need for expediency
was especially acute because the transit facility remained
open to the public during the period of repair. The operations
coordinator also testified that the doors had to be replaced
because they could not be repaired for a variety of reasons,
including that the damaged doors would not “fit right” and
they would not “lock properly.”
         The state also called the city’s claims adjuster who
testified about the industry-wide program used to calculate
the damage estimate. The state produced documentation
of the costs incurred to replace the doors including (1) the
itemized cost estimate for the damage ($6,938 for replacement doors, $1,320 for glass repair, and $530 to temporarily
secure the doors and windows), (2) an email from the contractor describing the scope of the repair work and explaining that “there is nowhere in Tillamook to source [the] materials” that would be required to repair the doors, and (3) the
contractor’s invoice for the total amount of $8,788.
         The testimony and documentary evidence establishes that the doors could not readily be repaired and that,
even if they could be repaired, it would cost less to replace
them. Under those particular circumstances, the court
could conclude that the cost of replacement was less than
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 (2023)                              681

for repair, and impose the replacement cost of the doors as
restitution.
         We reject defendant’s remaining contention that
the proper restitution award would have been the reasonable market value of the doors, accounting for depreciation.
To support his argument, defendant relies on De Verteuil, a
case in which we concluded that the proper award of restitution for damage to a car seat and a vehicle roof rack was
the value of the items “at the time and place that defendant’s criminal conduct destroyed [them].” 304 Or App at
170. But De Verteuil—a case concerning damage to personal
property—does not stand for the proposition that the correct
measure of damages is always the reasonable market value
of the property. Rather, as we have mentioned, De Verteuil
requires that a trial court determine what amount a victim
“could recover against the defendant in a civil action arising
out of the defendant’s criminal activities.” Id. at 167.
         In civil cases involving damage to real property, trial
courts apply one of two approaches to calculate damages.
When an injury to real property is permanent, the appropriate measure of damages is the “lost market value” of the
property caused by the defendant’s criminal act. McCormick
v. City of Portland, 

, 

,
rev den, 

 (2004). When the injury is temporary, or
“reasonably susceptible to repair,” the appropriate measure
of damages is “the cost of restoring the property to its original condition[.]” 

 We apply those principles here because
doors are generally considered fixtures “that, by being physically annexed or affixed to real property, become[ ] accessory to the real property and part and parcel of it.” Oldham
v. Fanno, 

, 

 (2000) (internal
quotation marks omitted). Where, as here, the injury to the
transit station was temporary, the appropriate measure of
damages is the reasonable “cost of restoring the property to
its original condition[.]” McCormick, 

. The
trial court did not err in imposing restitution in the amount
required to restore the property to its original condition by
replacing the doors.
        Affirmed.