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State v. Rosette

Court of Appeals of Oregon

December 28, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ROD CHRISTOPHER ROSETTE, Defendant-Appellant.

          Argued and submitted January 24, 2017

         Wasco County Circuit Court 1300146CR; Janet L. Stauffer, Judge.

          David J. Celuch argued the cause and fled the brief for appellant.

          Nani Apo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Defendant appeals a judgment of conviction entered after a jury found him guilty of first-degree theft. He raises two assignments of error on appeal. First, he assigns error to the trial court's ruling allowing a witness to testify about his examination of the stolen property that took place after that property had been unlawfully seized. Second, he assigns error to the trial court's award of restitution.

         Held:

         Any error in admitting the witness's testimony was harmless. However, the trial court applied the wrong formula to calculate restitution by calculating damages based on loss of use rather than conversion.

         Restitution award vacated; remanded for resentencing; otherwise affirmed.

         [289 Or.App. 582] DEHOOG, P. J.

         Defendant appeals a judgment of conviction entered after a jury found him guilty of first-degree theft. He raises two assignments of error on appeal. First, he assigns error to the trial court's ruling allowing a witness to testify about his examination of the stolen property that took place after that property had been unlawfully seized. Second, he assigns error to the trial court's award of restitution. We conclude that any error in admitting the witness's testimony was harmless. But we agree that the trial court used the wrong formula to calculate restitution. Therefore, we vacate the award of restitution, remand for resentencing, and otherwise affirm.

         The relevant facts are not disputed on appeal. Detective Carrico of The Dalles Police Department received a tip in 2012 that defendant had a stolen Bobcat tractor on his property. Unsure of whether he could identify the Bobcat, Carrico contacted a local Bobcat dealership. Gordon Myers, a Bobcat representative, explained that there are secret numbers hidden on the machines that can be used to identify a Bobcat even if the identification plate has been removed. In January 2013, Carrico called defendant and asked for his permission to check the serial numbers on the Bobcat. Defendant gave his permission for that search. Carrico, Myers, and another officer, Simonds, went to defendant's house to examine the Bobcat, which was in defendant's back field.

         When Myers examined the Bobcat at defendant's house, he noticed that the identification plate had been removed, but he was able to find the manufacturer stamp listing an identification number on the engine block. Upon returning to the Bobcat dealership, Myers searched the records and determined that the registered owner of the Bobcat was Douglas Coverdale.

         After Myers had researched the identification number and ownership of the Bobcat, he notified Simonds, who called defendant and told him that the numbers matched a Bobcat that had been reported as stolen. Defendant told Simonds that he had purchased the Bobcat from "FLI, " a local landscaping business, approximately 10 years earlier [289 Or.App. 583] in 2004 and that he had a bill of sale. Simonds testified at a pretrial suppression hearing that he then went to defendant's house and saw that the Bobcat remained in defendant's back field. He decided to seize the Bobcat without first obtaining a warrant. The trial court concluded that the seizure was unlawful, and, for purposes of appeal, the state does not challenge that conclusion.

         A couple of weeks later, Simonds called defendant again and asked him to come to the police station to discuss the Bobcat. That interview was recorded and played for the jury at trial. During that interview, defendant told Simonds that he had purchased the Bobcat from Adam Vittoria, who had said that he had permission to sell the Bobcat on behalf of the owner of FLI. Defendant told Simonds that he had given Vittoria $500 for the Bobcat, with the intention that he would make future payments. Defendant did not call FLI to verify that Vittoria had permission to sell the Bobcat. Defendant had gone to high school with Vittoria and knew that he was a "sketchy guy." Shortly after defendant purchased the Bobcat, he lost contact with Vittoria and made no further payments. During the interview, defendant estimated that the value of "a 2004, a 10-year-old Bobcat" would be $8, 000, depending on the hours that it had been used.

         The state charged defendant with first-degree theft, ORS 164.055.[1] Before trial, defendant moved to suppress the evidence discovered during the second, warrantless, [289 Or.App. 584] entry onto defendant's property; the resulting seizure of the Bobcat; and "any and all evidence derived from the unlawful search and seizure including, inter alia, defendant's statements and photographs of the tractor." At the hearing on the motion to suppress, the state argued that the exigency exception to the warrant requirement applied, but the court rejected that argument. The court ruled that "the seizure of the Bobcat, for whatever it's worth, would be suppressed." Other than any photographs that might have been taken of the Bobcat, there was no discussion of specific evidence subject to suppression.

         The jury found defendant guilty as charged. The trial court sentenced defendant to 18 months' supervised probation and 30 days in jail. The court's decision on restitution was not made at the sentencing hearing. Rather, after receiving memoranda from the state and defendant, the trial court entered an amended judgment imposing $26, 697.10 in restitution. The court sent the parties a letter explaining its decision. In that letter, the court, relying on the dates alleged in the indictment, defined the relevant time frame as January 1, 2012 through January 14, 2013, which it said was "13 months and 13 days."[2] The court wrote:

"The victim is entitled to his objectively verifiable monetary losses. ORS l37.lO3(2)(a), ORS 3l.l7O(2)(a). The economic damages that a court may award as restitution to a crime victim are the economic damages that the victim could recover against the defendant in a civil action for the defendant's conduct. The victim is entitled to damages for loss of use, calculated by rental value, whether or not a substitute was actually rented. Graf v. Don Rasmussen Co., 39 Or.App. 311, 317-18, 592 P.2d 250[, rev den, 286 Or. 521] (1979).
"The only indication of the value of the loss of use of the Bobcat was that the current cost of renting a replacement is $1, 975.00 monthly. I find that restitution should be the reasonable amount to rent that machine for 13 months ($25, 675), 13 days ($844.10), plus the towing charge of $178.00. Thus, the total amount of restitution due is $26, 697.10."

[289 Or.App. 585] On appeal, defendant first argues that the trial court erred by allowing Myers to offer an opinion about the value of the Bobcat that relied on his examination of it after the police had unlawfully seized the Bobcat. Defendant relies on both the state and federal exclusionary rule to argue that the testimony should have been excluded. The state responds that defendant failed to preserve this claim of error because defendant did not object to Myers's testimony that he estimated the value of the Bobcat to be $10, 000. Instead, defendant argued at trial that Myers should not be allowed to testify about his actual examination of the Bobcat after it had been seized. Even if defendant had preserved the issue, the state argues, the trial court correctly admitted Myers's testimony about the value of ...


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