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State v. Shockey

Court of Appeals of Oregon

May 24, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CORINA SHOCKEY, Defendant-Appellant.

          Argued and submitted June 21, 2016

         Wasco County Circuit Court 1400114M; Janet L. Stauffer, Judge. Karen Ostrye, Judge.

          Erin 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 Services.

          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 Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Defendant 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 137.106.

         Held:

         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.

         Remanded for resentencing; otherwise affirmed.

         [285 Or.App. 720] LAGESEN, J.

         For having a dead red-tailed hawk in her freezer, defendant was charged with unlawful possession of a raptor, ORS 498.002, [1] a charge to which defendant pleaded guilty.[2] 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[3]- [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.

         On 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.

         The 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), ...


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