and submitted June 21, 2016
County Circuit Court 1400114M; Janet L. Stauffer, Judge.
Karen Ostrye, Judge.
Snyder, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
pleaded guilty to unlawful possession of a raptor, ORS
498.002, for having a dead red-tailed hawk in her freezer. As
part of the judgment entered based on that guilty plea, the
trial court awarded $2, 000 in restitution to the Oregon
Department of Fish and Wildlife (ODFW), under ORS 137.106.
The trial court did so based on its determination that ORS
496.705, which authorizes ODFW to flue a civil suit for
statutory damages for wildlife taken in violation of the
wildlife laws, allows ODFW to recover $2, 000 for a raptor,
thereby excusing the state from proving, with evidence, the
economic loss, if any, that defendant's conduct caused
ODFW. Defendant appeals, assigning error to the trial
court's determination that ORS 496.705 supplanted the
state's ordinary burden to prove, with evidence, the
value of any economic loss suffered by a crime victim for
which restitution is sought. The state argues to the contrary
that the trial court correctly found that ORS 496.705
represents a legislatively [285 Or.App. 719] prescribed
valuation that suffices to establish the "economic
damages" that may be recovered as restitution under ORS
496.705 does not establish the value of wildlife for purposes
of ORS 137.106. The trial court therefore erred when it
ordered defendant to pay $2, 000 in restitution to ODFW based
solely on the statutorily prescribed damages in ORS 496.705.
for resentencing; otherwise affirmed.
Or.App. 720] LAGESEN, J.
having a dead red-tailed hawk in her freezer, defendant was
charged with unlawful possession of a raptor, ORS 498.002,
charge to which defendant pleaded guilty. Over
defendant's objection, the trial court ordered defendant
to pay $2, 000 in restitution to the Oregon Department of
Fish and Wildlife (ODFW), under ORS 137.106. The court did
so, even though the state presented no evidence that the hawk
found in defendant's freezer had a value of $2, 000, or
that defendant's conduct of possessing the hawk otherwise
caused ODFW to suffer a monetary loss of $2, 000. It
concluded that ORS 496.705- [285 Or.App. 721] which authorizes
ODFW to file a civil suit to recover statutorily prescribed
"damages" for the unlawful taking or killing of
specified wildlife-establishes the values of different
wildlife (including raptors) for purposes of ORS 137.106,
thereby supplanting the state's ordinary burden to prove,
with evidence, the value of any economic loss suffered by a
crime victim for which restitution is sought.
appeal, defendant assigns error to the trial court's
restitution award, contending that the court erred in
concluding that ORS 496.705 supplies the values of raptors
for purposes of restitution under ORS 137.106. The state
argues to the contrary that ORS 496.705 represents a
"legislatively prescribed valuation [that] suffices to
establish the 'economic damages' that may be
recovered as restitution under ORS 137.106." We conclude
that ORS 496.705 does not establish the values of wildlife
for purposes of ORS 137.106. We therefore remand for
resentencing because the record contains no other evidence to
support the court's restitution award.
issue before us is a legal question: Does ORS 496.705, the
wildlife civil suit statute, supply the values of wildlife
for purposes of ORS 137.106, the criminal restitution
statute? We therefore review for legal error. State v.
Ferrara.218 Or.App. 57, 67-68, 178 P.3d 250, rev
den,344 Or. 539 (2008). Because our objective is to
ascertain the legislature's intentions by examining the
text, context, and legislative history of the pertinent
statutory provisions, turning to relevant maxims of
construction if necessary, Chase and Chase. 354 Or.
776, 780, 323 P.3d 266 (2014), ...