This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In the Matter of the Welfare of: J.E.P.



Filed March 4, 2003


Peterson, Judge


Ramsey County District Court

File No. J200555337


Earl P. Gray, Mark D. Nyvold, Gray & Malacko, 46 East Fourth Street, Suite 1030, St. Paul, MN  55101 (for appellant J.E.P.)


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


Susan Gaertner, Ramsey County Attorney, Kathryn A. Santelmann, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55101 (for respondent State of Minnesota)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D    O P I N I O N


In this appeal from a restitution order, appellant J.E.P. argues that (1) respondent State of Minnesota did not meet its burden of proving that private-school tuition was a loss the victim incurred as a result of the offense, and (2) the district court did not take into account J.E.P.’s income, resources, or obligations.  We reverse.


            J.E.P. pleaded guilty to one count of third-degree criminal sexual conduct following a sexual assault that occurred at a public high school in St. Paul.     A few weeks after the assault, the victim, E.K.M., attempted to return to the public school to resume her sophomore year. Upon her return, she faced a hostile environment, and her parents decided to enroll her in a private school.

At a restitution hearing, J.E.P opposed the state’s request for a restitution order requiring him to pay for counseling and private-school tuition.  J.E.P. argued that private-school tuition should not be ordered because (1) it was not an expense directly caused by the conduct to which he pleaded guilty; (2) he was indigent; and (3) the state failed to show that E.K.M. could not have transferred to another public school.

            The district court ordered J.E.P. to pay as restitution one-half of E.K.M’s private-school tuition and counseling expenses in the amounts of $3,171.50 and $1,729.87, respectively. The court found that the decision to enroll E.K.M. in private school was a direct result of the sexual assault and was “reasonable in light of all E.K.M. had endured and because [her] educational options were limited at mid-term.”  The order noted that another district court ordered a second offender who was involved in the assault of E.K.M. to pay the other half of the tuition. 

J.E.P. appeals only the portion of the restitution order relating to private-school tuition.


A victim of a crime has the right to receive restitution as part of the disposition of a * * * juvenile delinquency proceeding against the offender if the offender is * * * found delinquent.  The court, or a person or agency designated by the court, shall request information from the victim to determine the amount of restitution owed.  The court or its designee shall obtain the information from the victim in affidavit form or by other competent evidence.  Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property.  A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including medical and therapy costs * * * .


Minn. Stat. § 611A.04, subd. 1(a) (2000).

District courts have broad discretion in imposing restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). 

The court, in determining whether to order restitution and the amount of the restitution, shall consider the following factors:

(1) the amount of economic loss sustained by the victim as a result of the offense; and

(2) the income, resources, and obligations of the defendant.


Minn. Stat. § 611A.045, subd. 1(a) (2000). 

“Restitution is only proper where the victim’s losses are ‘directly caused’ by the conduct for which the defendant was convicted.”  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (quoting State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986)).  The record must provide a factual basis for the restitution award.  State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).

A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence.  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 is on the prosecution.


 Minn. Stat. § 611.045, subd. 3(a) (2000).

J.E.P. concedes that the state established the amount of E.K.M’s tuition, but he argues that the prosecution did not establish by a preponderance of the evidence that E.K.M’s transfer to a private high school was a direct result of his offense and that the prosecution failed to submit by affidavit or other competent evidence the reasons justifying the award for tuition.

The record contains evidence that supports the district court’s finding that the environment at the public high school when E.K.M. returned was “extraordinarily hostile, and according to authorities, an unsafe environment.”  This finding explains why E.K.M. left the public school.  But the record does not contain an affidavit or any other competent evidence that specifies the reasons justifying restitution for private-school tuition. 

In a statement read into the record at the disposition hearing, E.K.M.’s parents stated:

            Finally we decided that, despite [E.K.M.’s] courage in attempting to return to her school, this was no longer viable, given the traumatic events that occurred there.  Finding no other public school options, we met her needs.  We enrolled her in a private school.


The victim impact statement in the probation officer’s report prepared for the district court states:

Mother states that her daughter was unable to make a good adjustment in returning to school and therefore she placed her in a private school.


            These conclusory statements, however, do not specify any reasons justifying E.M.K.’s parents’ decision to place her in a private school.  The statements do not indicate what needs were met by placing E.M.K. in private school and, therefore, do not indicate whether these needs are related to the assault.  The only need that is identified in the record is the need to leave the public school.  The record does not specify any reasons that justify using a private school to meet this need.  Because the prosecution did not produce any such evidence, it failed to meet its burden of demonstrating the appropriateness of restitution for private-school tuition, and the district court abused its discretion by awarding restitution for the tuition.

J.E.P. also argues that the district court failed to consider his income and resources, and the prosecution concedes that the restitution order does not specifically address J.E.P.’s income, resources, and obligations.  But because we have already determined that the district court abused its discretion by awarding the restitution in the absence of evidence demonstrating its appropriateness, it is not necessary for us to consider a lack of resources as an additional reason for reversing the award.