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Date: 04-02-2020

Case Style:

State of North Dakota v. Mark James Pagenkopf

Case Number: 2020 ND 33

Judge: Gerald W. VandeWalle

Court: IN THE SUPREME COURT STATE OF NORTH DAKOTA

Plaintiff's Attorney: Brianna Kraft (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, and Ryan J. Younggren (appeared),
Assistant State’s Attorney

Defendant's Attorney:


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In March 2019, Pagenkopf pleaded guilty to unlawful entry into a vehicle
and theft of property under $500. In October 2018, Pagenkopf broke into the
victim’s 2005 Chrysler Sebring and damaged the radio, speedometer glass, and
HVAC controls. He also stole $400 worth of property from the trunk of the car.
The State sought restitution for the damages caused by Pagenkopf.
In December 2018, before the restitution hearing was held, the victim
was involved in a car accident. As a result, the victim’s car was totaled, and
the victim was paid $2,000 from insurance. The damages to the victim’s car
caused by Pagenkopf had not been repaired before the accident.
At the restitution hearing held in July 2019, the State offered into
evidence an estimate of the amount to repair the damage done to the victim’s
car. The estimate totaled $1,914.35. The State asked that $2,314.35 in
restitution be paid to the victim for the damages to her car and for the stolen
property. Pagenkopf did not refute the State’s evidence or present any evidence
of his own. However, on cross-examination, Pagenkopf’s attorney asked the
victim if the insurance payment had been reduced for the damaged radio or
speedometer glass, to which the victim replied, “I don’t believe so.”
At the conclusion of the hearing, the court stated:
I think under Marcy’s [sic] Law I have to award full restitution, at
this point in time, for the damages caused. I don’t think what
happened subsequent—that I’m allowed to take into consideration.
2
I could be wrong on that. I think under the old law I could. I’m not
sure I can under the new law.
The district court awarded $2,314.35 in restitution.
II
Our standard of review for orders of restitution is well established:
“When reviewing a restitution order, we look to
whether the district court acted within the limits set
by statute, which is a standard similar to our abuse of
discretion standard. A district court abuses its
discretion if it acts in an arbitrary, unreasonable, or
unconscionable manner, if its decision is not the
product of a rational mental process leading to a
reasoned determination, or if it misinterprets or
misapplies the law.”
State v. Rogers, 2018 ND 244, ¶ 23, 919 N.W.2d 193 (citing State
v. Bruce, 2018 ND 45, ¶ 4, 907 N.W.2d 773 (internal citations and
quotation marks omitted)). “The district courts possess a ‘wide
degree of discretion when determining restitution
awards.’” Rogers, at ¶ 23 (citing State v. Putney, 2016 ND 135, ¶ 6,
881 N.W.2d 663). “But, ‘in determining whether or not the district
court abused its discretion through misapplication or
misinterpretation of the law,’ we apply a de novo standard of
review.” Rogers, at ¶ 23 (citing State v. Kostelecky, 2018 ND 12, ¶
6, 906 N.W.2d 77). “A district court’s award of restitution to a
crime victim is made under N.D. Const. art. I, § 25(1)(n)
and N.D.C.C. § 12.1-32-08.” Rogers, at ¶ 23. “The ‘State has the
burden of proving the amount of restitution by a preponderance of
the evidence.’” Rogers, at ¶ 23 (quoting State v. Kleppe, 2011 ND
141, ¶ 28, 800 N.W.2d 311). “When determining restitution, the
district court must consider ‘the reasonable damages sustained by
the victim.’” N.D.C.C. § 12.1-32-08(1)[ ]; Rogers, at ¶ 23.
State v. Walker, 2019 ND 292, ¶ 5, 936 N.W.2d 45; see also State v. Strom, 2019
ND 9, ¶ 5, 921 N.W.2d 660 (stating in addition to statutory requirements we
must consider how N.D. Const. art. I, § 25(1)(n) applies).
3
III
Pagenkopf argues the district court abused its discretion in awarding
restitution because the victim did not incur any actual expenses as provided in
N.D.C.C. § 12.1-32-08(1) because she did not repair the damages and because
her car was subsequently totaled. Pagenkopf further argues the court erred in
determining N.D. Const. art. I, § 25,1 prohibited it from considering that the
victim’s car was totaled subsequent to the damages caused by Pagenkopf.
The district court is the finder of fact in ordering restitution. State v.
Kostelecky, 2018 ND 12, ¶ 13, 906 N.W.2d 77 (citing State v. Gates, 2015 ND
177, ¶ 7, 865 N.W.2d 816). Under N.D.C.C. § 12.1-32-08(1), the district court
has the authority to order a defendant to pay restitution. Section 12.1-32-08(1)2
provides:
In determining the amount of restitution, the court shall take into
account the reasonable damages sustained by the victim or victims
of the criminal offense, which damages are limited to those directly
related to the criminal offense and expenses actually incurred as a
direct result of the defendant’s criminal action.
An award of reasonable damages may include diminution in value,
replacement costs, or repair costs. State v. Tupa, 2005 ND 25, ¶¶ 8-9, 691
N.W.2d 579. It is within the district court’s broad discretion to determine how
to calculate reasonable restitution. Id. at ¶ 9. No matter the method employed
by the district court to calculate damages, “damages sustained” and “expenses
actually incurred” are separate and distinct from one another under the
statute. A victim may sustain damages without having incurred any expense—
which is precisely what occurred in the instant case.
The victim had not repaired the damages to her car prior to the accident.
At the restitution hearing, the State offered into evidence an estimate to repair
1 Article I, § 25, N.D. Const., is more commonly known as Marsy’s Law.
2 Section 12.1-32-08(1) was amended in 2019 after Pagenkopf committed the underlying offense but
before the restitution hearing was held. 2019 N.D. Sess. Laws ch. 117, § 2. Section 12.1-32-08(1) as
amended is cited and quoted in this opinion.
4
the damages totaling $1,914.35, and the victim testified that $400 of property
was stolen from the trunk. Pagenkopf did not dispute the estimate or the
valuation of the property that was stolen. Rather, Pagenkopf argued the victim
was not damaged because she did not repair the damages and did not incur
any actual expense. Pagenkopf’s argument is not persuasive.
Even though the victim did not incur any expenses for having the
damages to her car repaired, she was nonetheless damaged by Pagenkopf’s
vandalism. As a result of Pagenkopf’s actions, the victim was forced to drive a
car with a damaged radio, speedometer glass, and HVAC controls for two
months. The victim was damaged as a direct result of Pagenkopf’s delinquent
conduct. The fact that the victim did not incur any actual expenses because she
chose not to repair the damages or could not afford to repair the damages is
not dispositive of whether she sustained damages and is entitled to restitution.
Furthermore, the fact that the victim received an insurance payout has
no bearing on the court’s award of restitution. State v. Bruce, 2018 ND 45, ¶ 7,
907 N.W.2d 773. Pagenkopf did not dispute the repair estimate offered by the
State or offer any evidence as to the value of the victim’s car before it was
totaled. And the only evidence that the victim’s insurance payment was not
reduced as a result of Pagenkopf’s vandalism was her testimony on crossexamination at the restitution hearing. The district court was within its
discretion to award full restitution even though the subsequent accident
depleted the value of the victim’s car and mitigated the damages caused by
Pagenkopf. See State v. Gendron, 2008 ND 70, ¶¶ 4, 9, 747 N.W.2d 125.
We conclude the district court did not abuse its discretion by declining to
consider the subsequent accident and awarding $2,314.35 in restitution.
Moreover, we have recently held that N.D. Const. art. I, § 25, does not
change the amount of restitution a district court may order under N.D.C.C. §
12.1-32-08. Kostelecky, 2018 ND 12, ¶ 12, 906 N.W.2d 77. The district court
determined the victim had sustained damages as a result of Pagenkopf’s
criminal conduct and awarded reasonable restitution based on the evidence
5
presented to it. The district court did not abuse its discretion through a
misapplication or misinterpretation of N.D. Const. art. I, § 25.

Outcome: The amended criminal judgment awarding restitution is affirmed.

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