This opinion will be unpublished and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
State of Minnesota,
Lorey Ann Hinds,
Carver County District Court
File No. K8-99-951
Mike Hatch, Attorney General, Robert Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael A. Fahey, Carver County Attorney, Government Center, 600 East Fourth Street, Chaska, MN 55318 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.
The district court ordered restitution as part of Lorey Hinds’s sentence for check forgery and financial-transaction fraud. Hinds challenges $49,879 of the $79,837 restitution amount, contending that a credit-card debt is incorrectly computed and that neither a loan included in the credit-card debt nor attorneys’ fees incurred in negotiating with creditors are losses attributable to her forgery and fraud. We affirm the ordered restitution for attorneys’ fees, but we reverse the restitution for a $8,400 loan and a portion of the credit-card charges because these amounts are not economic losses caused by Hinds’s criminal conduct. We remand for recalculation of the restitution total.
Lorey Hinds worked as an office assistant and bookkeeper for a real-estate appraisal firm until April 1998. At that time, the owners discovered that Hinds had forged checks from their checking account and used their credit cards without authorization.
As part of her negotiated plea agreement, Hinds pleaded guilty to two counts of check forgery over $2,500 in violation of Minn. Stat. § 609.631, subds. 2, 4 (1998), one count of check forgery over $200 in violation of Minn. Stat. § 609.631, subds. 2, 4 (1998), and one count of financial-transaction-card fraud in violation of Minn. Stat. § 609.821, subds. 2, 3 (1998). The district court sentenced Hinds to 180 days in jail and ten-years’ probation and ordered Hinds to pay restitution. The state submitted the owners’ request for $105,983.52 in restitution. Hinds disputed the amount, and the district court conducted a hearing.
The district court found that the owners sustained losses of $79,837 as a result of Hinds’s criminal acts. The total loss included forged check amounts, fraudulent charges on four credit-card accounts, IRS penalties incurred when Hinds diverted a tax payment, accountants’ fees to reconstruct the owners’ financial records, and attorneys’ fees for creditor negotiation. Hinds appeals, disputing $49,879 of the total restitution amount.
Under Minnesota law, crime victims are entitled to restitution including, but not limited to, any out-of-pocket expenses relating to the crime for which an offender is convicted. Minn. Stat. § 611A.04, subd. 1 (2000). In ordering restitution, the district court must consider the defendant’s income, resources, and obligations, and the victim’s economic loss as a result of the offense. Id. § 611A.045, subd. 1 (2000). When the record provides a factual basis for losses resulting from the offense, district courts are given broad discretion in awarding restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 528 U.S. 1165 (2000). But deciding whether the statute allows a particular item for restitution is a question of law that this court reviews independently. State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000).
Hinds does not dispute $29,958 of the ordered restitution, but argues that the court erred in ordering her to pay (1) the entire $15,000 the owners paid to settle their Visa and MasterCard accounts, which includes an $8,400 loan the owners made to Hinds in December 1996, using a Visa “access” check; and (2) $26,479 in attorneys’ fees the owners incurred in negotiating with their creditors.
Hinds argues that the $15,000 restitution for credit-card debt includes a loan for $8,400 that was not directly caused by the conduct for which she was convicted. The state concedes that the loan should not have been included in the calculation because it is not an economic loss directly caused by Hinds’s criminal conduct.
The record confirms that the loan was independent of Hinds’s fraudulent charges. By the terms of the promissory note, Hinds agreed to repay the loan with expected lawsuit settlement proceeds. Although Hinds received the settlement, she only repaid $1,412 of the loan and a balance remains. Nonetheless, Hinds was not charged with any crime in connection with the loan. Thus, because Hinds’s criminal conduct did not cause the owners’ loan loss, the loan amount should not be included as a part of the restitution for the credit-card debt.
Although the state concedes that the $8,400 should not be included as part of the $15,000 total, it contends that the loan amount should not simply be subtracted from the $15,000 because the court included the loan as a percentage of the $15,000, and not dollar for dollar. We agree that the amount should be reduced proportionately rather than subtracting the full amount, and that remand is necessary to allow recalculation.
In addition to the inclusion of the loan, Hinds disputes the other calculations on the credit-card debt. The owners maintained two credit-card accounts with M. B. N. A., a Visa account and a MasterCard account. When the fraud was discovered, the Visa balance was $11,166 and the MasterCard balance was $23,048. The owners negotiated an agreement with M. B. N. A. to pay a total of $15,000 to settle the entire balance of $34,214.
Hinds admits that, except for the $8,400 loan, the $11,166 Visa balance consists of her fraudulent charges. Hinds also admits that she charged $8,800 to the owners’ MasterCard, but argues that her fraudulent charges on the combined M. B. N. A. accounts amount to $11,566, less than the $15,000 ordered for restitution. The record indicates that before Hinds illegally used the MasterCard, the account already had a balance of $18,000. On these facts, Hinds argues that after settling with the credit-card company, the owners have earned money because they settled for $15,000, which is $3,000 less than the owners’ preexisting $18,000 balance.
A district court is not required to perform a strict netting of costs and benefits when setting restitution. State v. O’Brien, 459 N.W.2d 131, 134 (Minn. App. 1990) (affirming restitution order for wedding costs and disallowing claimed set-off from value of wedding gifts). But the court must determine the appropriate amount of restitution by a preponderance of evidence. See Minn. Stat. § 611A.045, subd. 3 (2000); State v. Terpstra, 546 N.W.2d 280, 282 (Minn. 1996).
The owners do not dispute that they owed $18,000 on their M. B. N. A. MasterCard account before Hinds used the credit card. Therefore, Hinds’s portion of the $15,000 owed should have been reduced to reflect the owners’ share of the account balance. Although Hinds is not entitled to the benefit of the owners’ bargain with the credit-card company, neither is she obligated to pay an existing balance that is not attributable to her criminal conduct. Because the $15,000 restitution for the credit-card payment must be reduced proportionately to reflect Hinds’s loan amount and the owners’ charges, we remand for recalculation of the restitution amount.
Hinds argues that her restitution obligation should not include $26,479 for attorneys’ fees the owners paid for negotiation with their creditors over disputed amounts. Hinds takes the position that because the owners’ settlement with the credit-card company actually saved them money, she should not be responsible for any attorneys’ fees attributable to the benefit the owners received. She also argues that to receive attorneys’ fees, the owners must submit more detailed billing to the district court.
Minnesota law allows restitution for “out-of-pocket losses resulting from the crime * * * . ” Minn. Stat. § 611A.04, subd. 1. Restitution is primarily intended to compensate the crime victim for losses by restoring the victim’s original financial condition. Terpstra, 546 N.W.2d at 283. As the district court found, Hinds’s crime directly caused the owners’ attorneys’ fees because the owners would not have incurred those expenses had Hinds not stolen money from them. The attorneys’ fees are reasonably included within the restitution amount.
Although the owners did not submit detailed attorneys’ bills, the state submitted an affidavit explaining the bills and the owners’ bookkeeping records itemizing the bills, and an owner testified about the bills’ purpose. This level of documentation satisfies the statute’s requirements. See Minn. Stat. § 611A.04, subd. 1 (stating that to recover restitution, the victim must submit information describing the loss, itemizing the total dollar amounts claimed, and specifying the reasons justifying the amounts claimed); see also State v. Keehn, 554 N.W.2d 405 (Minn. App. 1996) (requiring victim to submit a list describing losses with reasonable specificity, but not requiring receipts or proof of exact purchase prices), review denied (Minn. Dec. 17, 1996).
Affirmed in part, reversed in part, and remanded.