This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1910

 

 

In the Matter of the Welfare of:
J.B.D., Child.

 

 

Filed June 19, 2001

Affirmed

Poritsky, Judge*

 

 

Stearns County District Court

File No. J10050575

 

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant child)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Roger S. Van Heel, Stearns County Attorney, Daniel A. Benson, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent state)

 

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Poritsky, Judge.

U N P U B L I S H E D  O P I N I O N

 

PORITSKY, Judge

 

            Appellant J.B.D. challenges the trial court’s order adjudicating him delinquent of criminal damage to property in the first degree, contending there was insufficient evidence to support a finding that he caused damage in excess of $500.  Appellant also challenges the trial court’s restitution order, contending that the court erred in calculating the amount of restitution.  We affirm.

FACTS

 

            In March 2000, the state filed a petition in Stearns County Juvenile Court charging J.B.D., who was 17 when the offense was committed, with criminal damage to property in the first degree, in violation of Minn. Stat. § 609.595, subd. 1(3) (2000).  In May 2000, the state filed an amended petition alleging the same offense, but added language alleging liability for the crimes of another under Minn. Stat. § 609.05, subd. 1 (2000).  After a bench trial, the court found that J.B.D. aided and abetted “others in wrongfully, unlawfully, feloniously and intentionally causing damage to physical property of another” that reduced the value of the property by more than $500.  The court ordered J.B.D. to perform 40 hours of community-service work, write a letter of apology, complete an alcohol-education program, and make restitution in an amount that was to be determined later but not to exceed $12,235.  In October 2000, the court ordered J.B.D. to pay one-fourth of the total restitution obligation of $6,858.

            Except for the amount of damage incurred, the material issues of fact are undisputed.  On April 23, 1999, J.B.D. and three of his friends purchased several cartons of eggs at the Clearwater Holiday Station and went to the home of Leslie and Lawrence Storms.  J.B.D. and each of his friends took a carton of eggs and started throwing the eggs at the exterior of the Storms’ home.  The Storms woke up and ran outside to catch the individuals “egging” their home, but all four drove off in a car.  Mr. Storms chased the car in his own car and obtained the license plate number.  The Storms contacted the Stearns County Sheriff’s Department, and Deputy Robert Dickhaus arrived at the Storms’ residence shortly thereafter. 

            The Storms told Deputy Dickhaus that somebody had egged their home.  They pointed out broken and unbroken eggs and egg cartons in their yard and the areas on the house where the eggs had landed.  The Storms also told the deputy that they had been egged three or four times in the past and pointed out the stains from the prior egging incidents.[1]  The new egg stains were primarily confined to the front (south side) of the house and the front porch.  Deputy Dickhaus took several photographs of the home, the eggs, and the remaining egg cartons. 

            Deputy Dickhaus found the store where the individuals had bought the eggs and recovered the security tape showing the individuals buying the eggs.  Using the license plate number that the Storms had given him, the deputy tracked down the owner of the car, who admitted to egging the house with J.B.D. and two others.  All four individuals cooperated with the deputy and confessed that they were at the Storms’ home on April 23, 1999, and that they egged the home.

            J.B.D. told Deputy Dickhaus that he and three friends decided to egg the Storms’ house for no apparent reason.  J.B.D. disclosed that he and another individual went into the Holiday store and bought the eggs, and then all four of them went to the Storms’ home.  J.B.D. admitted to throwing about nine eggs and stated that when “a lady of the house came out,” they ran away.  J.B.D. told the deputy that he had never egged the Storms’ house before this particular incident and did not know who had done so in the past.

            At trial in May 2000, Mr. Storms testified that although they had been egged before, the incident on April 23 was the worst, involving the most eggs.  The Storms hired James Allen of ABC Seamless to estimate the cost of damage caused by the egging.

Allen testified that because the siding had faded over the years, both the east and south sides of the house, including the soffits (eaves), fascia (overhangs), beams, and the porch needed to be replaced in order to match the siding to the rest of the home.  The total estimated cost was $11,455, unless the insulation underneath the siding needed to be replaced, in which case the total amount would be $12,235.   Allen also testified that the estimated cost of repairing only those areas damaged by the egg stains—the south side of the house, including the front porch—was $6,858 ($4,152 for the siding; $1,406 for the soffits and fascia; and $1,300 for the window trim).

Scott Austing of Tony’s Lifetime Exteriors, Inc. testified on behalf of J.B.D.  Austing stated that when he inspected the home the week prior to trial, he found only one spot—on the front porch—that had been damaged by eggs.  He believed that the Storms needed only to pressure wash the front porch with trisodium phosphate and replace the soffits and fascia on the front of the house.  Austing’s total estimated cost for repairs was $950.  Austing also prepared two other estimates that included replacing either all or part of the south and east sides.  Those estimates were $5,200 and $1,200, respectively, and were done for comparison purposes only.  Neither expert was able to determine which egg stains were caused by the April 23 incident.

The trial court adopted Allen’s estimate of $6,858, but rejected the state’s request to find J.B.D. responsible for replacing “all of the siding the victims [were] requesting,” explaining that granting such a request “would result in an unjust enrichment.”

D E C I S I O N

 

I.  Sufficiency of the Evidence

In a delinquency adjudication, the state must “prove beyond a reasonable doubt every fact necessary to constitute the charged crime.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)).  The “appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  Id. (citation omitted).  Appellant has “the burden of showing that the trier of fact could not reasonably find he committed the charged acts.”  In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985) (citation omitted).  The reviewing court must assume that the finder of fact “believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). 

J.B.D. does not claim that he did not egg the house.  Instead, he contends that the trial court could not rationally make a distinction between the damage for which he and his friends were responsible and the damage that resulted from the earlier egging incidents.  See Minn. Stat. § 609.595, subd. 1(3) (2000) (defining criminal damage to property in the first degree as intentionally causing damage to physical property of another that reduces the value of the property by more than $500).  Because the trial court found J.B.D. guilty of aiding and abetting criminal damage to property in the first degree, the state was required to prove only that the combined actions of the four participants, not each individual alone, caused more than $500 in property damage.  See Minn. Stat. § 609.05, subd. 1 (2000) (“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”). 

There was sufficient evidence to lead to the conclusion that J.B.D. and his friends caused more than $500 in property damage.  First, J.B.D. admitted that some of the eggs that he and his friends threw landed on the house.  Second, the state produced photographs taken shortly after the April 23 incident, and Mr. Storms and Deputy Dickhaus were able to distinguish between the newer and older egg stains in the photos.  Finally, both experts testified that eggs will stain steel siding, and although Austing’s total estimate of damages was less than the state’s estimate, Austing’s total was still more than $500.

Viewing the evidence in the light most favorable to the conviction, a fact-finder could reasonably conclude that the actions of J.B.D. and his accomplices caused more than $500 in damages to the Storms’ home.  J.B.D.’s adjudication of delinquency is affirmed.

II.  Restitution Order

 “The trial court has wide discretion in ordering reasonable restitution.” State v. Hanninen, 533 N.W.2d 660, 662 (Minn. App. 1995) (citation omitted), review denied (Minn. Sept. 28, 1995).  In determining the amount of restitution, the court considers the “economic loss sustained by the victim as a result of the offense” and “the income, resources, and obligations of the defendant.”  Minn. Stat. § 611A.045, subd. 1(a) (2000).  Once the offender has met the burden of producing evidence that challenges the type or amount of restitution, the prosecution has the “burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution.”  Id., subd. 3(a) (2000).  The trial court resolves disputes over the proper amount of restitution by a preponderance of the evidence.  Id.

Here, the record contains “a factual basis for the restitution ordered.”  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (citation omitted).   The trial court selected an amount proposed by the state that was limited to repairing areas damaged on the south side of the house and the front porch, and Mr. Storms and the deputy were able to show the court which damage appearing in the photographs was fresh.  See id. (“Restitution is only proper where the victim’s losses are directly caused by the conduct for which the defendant was convicted.” (quotation omitted)). 

Even though the expert witnesses provided different property-damage estimates, the trial court was in “the best position to weigh the various * * * options” and there is no indication that the court abused its discretion in reaching the $6,858 amount.  State v. O’Brien, 459 N.W.2d 131, 133 (Minn. App. 1990) (quotation omitted).  Requiring J.B.D. to pay one-fourth of the total amount of damages was reasonable.

J.B.D. also suggests that the trial court did not properly assess his income, resources, and obligations in calculating restitution as required by Minn. Stat. § 611A.045, subd. 1(a).  At trial, however, defense counsel conceded that J.B.D. would be able to pay restitution because he worked 30 hours a week and would probably qualify for a loan to help pay for the restitution.  Moreover, defense counsel’s request that J.B.D. be responsible for only one-fourth of the total restitution award was granted, indicating that the court did take into consideration J.B.D.’s reasonable ability to pay.  See State v. Maidi, 537 N.W.2d 280, 285-86 (Minn. 1995) (stating that because Minn. Stat. § 611.045 “is not explicit as to how the court must consider the income, resources, and obligations” of defendants, courts have broad discretion in structuring restitution orders).

The trial court did not abuse its discretion in ordering restitution where the amount was limited to repairing those areas damaged by the April 23 egging incident, and J.B.D. conceded that he would be able to pay the amount ordered.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Mr. Storms later testified that their home had been egged seven times prior to the April 23 incident.