Filed 2/12/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 33

State of North Dakota, Plaintiff and Appellee

v.

Mark James Pagenkopf, Defendant and Appellant

No. 20190215

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Steven E. McCullough, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice, in which Justice Tufte joined. 

Justice McEvers filed an opinion concurring specially, in which Chief Justice 

Jensen joined. Justice Crothers filed an opinion dissenting.

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, Fargo, ND, for plaintiff and appellee.

Charles J. Sheeley, Fargo, ND, for defendant and appellant.
1

State v. Pagenkopf

No. 20190215

VandeWalle, Justice.

Mark Pagenkopf appealed from a district court’s amended criminal 

judgment awarding restitution. Pagenkopf argues the district court abused its 

discretion in awarding restitution in the amount of $2,314.35. We affirm. 

I

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.

IV

The amended criminal judgment awarding restitution is affirmed.

McEvers, Justice, concurring specially.

I agree with the majority that the district court did not abuse its 

discretion by awarding restitution to the victim for damages. I write 

separately because I think the court was right for the wrong reason. See Myers 

v. State, 2017 ND 66, ¶ 10, 891 N.W.2d 724 (stating, “We will not set aside a

district court’s decision simply because the court applied an incorrect reason, 

if the result is the same under the correct law and reasoning.”). Both the 

majority and the dissent have pointed out the court thought it could not 

consider what happened subsequent to the damage done to the victim’s car. I

agree with the dissent that the court misapplied the law in stating it could not 

consider what happened to the victim’s car subsequent to the crime. Dissent, 

at ¶ 27. In this instance it is harmless, because given the facts here, it makes 

no difference in what the award of restitution should be.

As pointed out by the majority, N.D. Const. art. I, § 25 does not change 

the amount of restitution a district court may order. Majority, at ¶ 14. This 

Court has previously recognized the court has discretion to consider 

circumstances that happen after the crime. For example, the return of stolen 

property may be considered in reducing the amount of restitution. See State v. 

Gerald W. VandeWalle

Jerod E. Tufte
6

Gendron, 2008 ND 70, ¶ 9, 747 N.W.2d 125 (discussing the court may consider 

the salvage value of stolen merchandise to a store but did not abuse its 

discretion by not doing so).

Here, the victim testified regarding the damage done to her car was 

$1,914.35 and provided invoices that supported her testimony. The victim 

testified that the repairs were not made because she could not afford to pay for 

them. Her car was totaled out as a result of an accident caused by another 

person and the victim testified she received a little over $2,000 for her car from 

the other party’s insurance company.

Pagenkopf’s argument is he should not have to pay for the damages to 

the car because the victim did not “actually incur” the expenses. Both the 

majority and the dissent agree a victim may sustain damages without

incurring an expense. Majority, at ¶ 9; dissent, at ¶ 25. This interpretation is 

based on this Court’s precedents. State v. Tupa, 2005 ND 25, ¶¶ 8-9, 691 

N.W.2d 579; see also State v. Kostelecky, 2018 ND 12, ¶ 14, 906 N.W.2d 77 

(discussing diminution of fair market value as an adequate measure of 

expenses actually incurred). Pagenkopf has cited no legal authority to 

persuade us to change our position on the interpretation of the statute.

It makes no difference here whether the district court considered what 

happened after the fact. Pagenkopf argued to the court:

Perhaps it’s Mr. Pagenkopf’s luck or something or another, [the 

victim] never had a chance to fix these damages. She was in an 

accident and the insurance company paid her out and did not 

deduct for any of these damages in the vehicle. It had no effect on 

what she was paid out. Therefore, basically, the inside of the 

damage should go as to zero for as far as restitution is concerned. 

I think Mr. Pagenkopf was going to dispute some of the internal 

damages, but I don’t believe that’s relevant, at this point, it’s 

probably moot, because that she never actually incurred any 

monetary damage from the damage to the inside of the vehicle.

Even if we construe Pagenkopf’s argument broadly to include an argument 

that the district court should have deducted the insurance proceeds from the 
7

amount of damages when setting restitution, Pagenkopf provided no legal 

argument the court was required to do so. Likewise, on appeal he has cited no 

authority, other than the statute and constitutional provision. This Court has 

not previously been persuaded that insurance proceeds change the analysis of 

whether an expense is actually incurred as a direct result of the defendant’s 

criminal conduct when the defendant cited no authority for the argument. 

State v. Bruce, 2018 ND 45, ¶ 7, 907 N.W.2d 773. I see no reason to reconsider 

it here.

Because the district court set restitution based on the damages sustained 

by the victim that were directly related to the criminal offense, I would affirm.

Crothers, Justice, dissenting.

I respectfully dissent.

Under the North Dakota Constitution and N.D.C.C. § 12.1-32-08(1), a 

crime victim is entitled to restitution consisting of “reasonable damages.” 

Majority opinion, at ¶ 8. Reasonable damages can be comprised of “damages 

sustained” and “expenses incurred.” Id. at ¶ 9. I agree with the majority that 

each of those damages can be separate and distinct from the other. Id. I also 

agree with the majority that “damages sustained” can be “actually incurred” 

even though the crime victim has not paid for repairs or otherwise sustained 

an out of pocket cost related to the damages.

Lisa Fair McEvers

Jon J. Jensen, C.J.
8

At the hearing, the district 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. 

I could be wrong on that. I think under the old law I could. I’m not 

sure I can under the new law. 

Our standard of review is abuse of discretion, and a district court abuses 

its discretion when it misinterprets or misapplies the law. State v. Carson, 

2017 ND 196, ¶ 5, 900 N.W.2d 41. I believe the district court misinterpreted or 

misapplied the law in awarding restitution when it said it could not consider 

what happened to the victim’s car subsequent to the crime. Instead, in 

determining what amount will allow the victim to receive “full restitution,” the 

district court could have and should have considered the amount of money 

received from or on behalf of the other driver who caused damage to her car.

In writing that the district court should have considered payment from 

a third party, I am not saying the victim was not entitled to restitution from 

Pagenkopf. Instead, I am saying the victim is not entitled to a double recovery. 

Thus, I believe the district court must consider whether the victim was fully 

paid for her car when she sold it to the insurance company, and that that 

consideration must be made in order to determine whether the victim 

“sustained damages” from the criminal act. The analysis I suggest is not 

temporal; rather it is economic and looks at whether the victim suffered 

damages “directly related to the criminal offense.” N.D.C.C. § 12.1-32-08(1). By 

necessity, that determination is made at the restitution hearing.

I also acknowledge that a different result might obtain in this case if the 

crime victim’s damages were gratuitously ameliorated or paid by third parties. 

See Mahan v. State, 51 P.3d 962, 968-69 (Alaska Ct. App. 2002) (Defendant’s 

restitution to animal protection society not reduced by contributions society 

received from public.); State v. Kisor, 82 Wash.App. 175, 916 P.2d 978 (1996) 

(Rejecting defendant’s argument that his restitution should be reduced by the 

amount of donations the crime victim received from private individuals.). 

However, that is not the case at hand. Here, the victim’s car was destroyed in 
9

an unrelated collision, resulting in the other driver’s insurance company 

declaring the victim’s car a total loss and paying the victim for the car.

I also disagree with the majority’s statement, “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.” Majority opinion, at ¶ 11. I agree 

the loss of use could be valued and, if proven, could be recovered as restitution. 

But here, the victim produced no evidence valuing her two month loss of use of 

certain features in her car. Without evidence, the loss is not recoverable as 

restitution.

In this case, based on these facts, I would reverse and remand for the 

district court to properly apply the law. On remand, the district court 

appropriately could consider all evidence in the record including that the 

victim testified she thought the third party payment was not reduced by an 

amount attributable to the defendant, that neither party introduced fair 

market value of the car when it was declared a total loss and sold to the 

insurance company, that the defendant may or may not be subject to a claim 

by another party that the defendant contributed to the car’s loss of value, and 

that the defendant did not dispute the repair estimate for the car.

Daniel J. Crothers