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State v. Manwiller

Court of Appeals of Oregon

December 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
TROY ALLAN MANWILLER, Defendant-Appellant.

          Argued and submitted October 13, 2017

          Yamhill County Circuit Court 15CR25349; Cynthia L. Easterday, Judge.

          Julie A. Smith argued the cause for appellant. Also on the brief was Cosgrave Vergeer Kester LLP.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for second-degree theft, ORS 164.045, assigning error to the trial court's imposition of restitution. Defendant argues that the doctrines of issue preclusion and claim preclusion rendered the trial court without authority to impose restitution against him. Held: Under the circumstances of this case, it would have been unfair for the trial court to apply issue preclusion to preclude the imposition of any restitution against defendant. Further, the application of claim preclusion in this case would have been inconsistent with Oregon's case law analyzing the effect of a prior civil suit on the state's ability to seek and obtain restitution in a criminal proceeding.


         [295 Or.App. 371] TOOKEY, J.

         Defendant appeals a judgment of conviction for second-degree theft, ORS 164.045. As part of his sentence, the trial court ordered defendant to pay the victim, his former employer, restitution in the amount of $25, 176.56 for economic damages caused by defendant's theft of the victim's metal. The $25, 176.56 of restitution imposed represented the $37, 676.56 in economic damages that the state had established that defendant had caused to the victim by stealing the metal, less a total of $12, 500 comprised of (1) $10, 000 that the trial court found was precluded by a prior small claims action that the victim had brought against defendant, which resulted in a $2, 500 judgment in favor of the victim, and (2) $2, 500 that defendant had paid to the victim to satisfy the small claims judgment.

         On appeal, defendant assigns error to the trial court's imposition of restitution, arguing that the court should have concluded that issues decided in the small claims action, or the judgment resulting from the small claims action, rendered it without authority to impose any restitution for the metal that defendant stole. For the reasons that follow, we conclude that the trial court did not err when it concluded that the small claims action did not render it without authority to impose any restitution against defendant. Accordingly, we affirm.

         We begin by stating the facts in the light most favorable to the state. State v. McClelland, 278 Or.App. 138, 139, 372 P.3d 614, rev den, 360 Or. 423 (2016) (applying that standard in considering challenge to award of restitution). The victim in this case is a company that principally manufactures bath and kitchen products. Defendant ran the victim's foundry. Between July 2012 and December 2013, defendant, for his own benefit, manufactured products using the victim's foundry, production resources, and, importantly here, metal. Defendant's employment was terminated in December 2013 after the victim learned of the theft.

         In October 2014, the victim instituted a small claims action against defendant seeking to recover $10, 000 in damages-the statutory cap for damages in small [295 Or.App. 372] claims actions-for defendant's "unapproved use of [the victim's] foundry, equipment, gas, labor, and metal." See ORS 46.405(3) (stating the small claims cap). At the hearing in the small claims action, defendant admitted to using the victim's foundry and gas but denied using its metal. He testified that he had "cancelled checks and invoices" reflecting his own purchases of metal and that he had given that information to detectives. As a result, the judge presiding over the small claims action expressed "concern" that the victim had not proven its case:

"I'm most concerned about-he says he's got his own metal that he used. That's a big chunk of what you're asking for, and I haven't really heard proof that it was [he who] took this metal. There's metal missing: You've said that; but you haven't really tied it to him yet."

         A witness for the victim responded that she could not "really tie it to" defendant.

         The small claims court ultimately determined that, although defendant "probably did" steal the victim's metal, the victim had not met its burden of proof as to the metal theft:

"I don't find that you've met your burden on the aluminum. It seems fishy; he probably did it; I don't know. He admitted to using the shop and the gas, and he owes you for that.
"The numbers are almost impossible to figure out, because he was doing it after hours and you didn't really know what was going on, so the number that I'm going to give is somewhat arbitrary. I'm going to put it at 25 percent of your claim, which is twenty-five hundred bucks. That's what I think you've proven. I can't go any further."[1]
The small claims court went on to note, however, that, if there was a criminal case, the victim would be made whole via restitution:
"I will say this: Any criminal case, restitution's going [to be] ordered through the Court. You'll be made whole. If [295 Or.App. 373] he actually did it and they can prove it, you're going to get your money at some point anyway."

         After the conclusion of the small claims action, defendant paid the victim $2, 500 to satisfy the resulting judgment.

         Defendant was subsequently indicted for three counts of aggravated first-degree theft, ORS 164.057, relating to three separate time periods. Each count alleged that defendant "did unlawfully and knowingly commit theft of property of the total value of $10, 000 or more, the property of [the victim]." See ORS l64.O57(1)(b) (aggravated first-degree theft requires that "the value of the property in a single or aggregate transaction is $10, 000 or more"). Defendant pleaded no contest to the lesser-included offense of second-degree theft, ORS 164.045, on Count 1. Defendant also admitted to the conduct charged in Count 2 and Count 3 "for the purposes of ordering restitution." The trial court accepted defendant's admission and no contest plea. The ...

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