This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1368

 

 

In the Matter of the Welfare of:

T.S.H., Child.

 

 

Filed June 29, 2004

Affirmed as modified

Willis, Judge

 

Washington County District Court

File No. 82-17819Y

 

 

John M. Stuart, State Public Defender,  Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant T.S.H.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Douglas H. Johnson, Washington County Attorney, Richard D. Allen, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant pleaded guilty to one count of felony theft.  He argues that the district court abused its discretion by improperly ordering restitution (1) for the replacement cost of an item that was not stolen; (2) for the replacement costs rather than the original purchase prices of stolen items; (3) for losses that were not proved; (4) without considering appellant’s ability to pay; and (5) as punishment.  Because we find that the district court, with the exception of one item, did not abuse its discretion in ordering restitution, we affirm as modified.

FACTS

On the morning of November 30, 2002, Laura Lorenz discovered that her son’s car had been vandalized.  She got from her son, Chris Lorenz, who was not at home at the time, a list of items that should have been in the car and reported the theft to the sheriff.

Appellant T.S.H. was subsequently charged in a delinquency petition with felony theft and criminal damage to property in the first degree.  As part of a plea agreement, appellant agreed to plead guilty to the felony-theft charge and to pay restitution to Chris Lorenz for the stolen items and for the damage to the car.  Chris Lorenz submitted an affidavit seeking restitution in the amount of $1,667.75; T.S.H. contested the amount of the restitution sought and requested a hearing.  At the restitution hearing, Chris  Lorenz testified that five items that were part of the car’s stereo system had been taken from his car:  two subwoofers, the box holding the subwoofers, a CD player, and a wiring harness necessary to connect the system.  He also testified that the nameplate on an amplifier had been removed, the door lock had been damaged, a window was broken, and one of the car’s doors was dented.

Chris Lorenz introduced a printout from Audio King, the store where he had bought the equipment, showing the makes, model numbers, and purchase prices of the stolen items.  Kerry Lorenz, Chris’s father, testified that he spent a “couple of hours” at the store, discussing equivalent replacement items with an employee.  The Audio King employee wrote down the model numbers and prices of recommended replacement items, and this document was also submitted. 

T.S.H. argued at the hearing that comparable replacement items were available at lower costs than those submitted by Chris Lorenz. But on cross-examination, T.S.H. admitted that he had no experience with stereo equipment and that the items he proposed as replacements were not identical with those stolen or those recommended as equivalent replacements by Audio King. 

            T.S.H. testified that he was employed by Gateway Cycle, worked approximately 30 hours a week, and made $9.50 an hour.  He further testified that his net monthly income was approximately $800 and that his monthly expenses were approximately $700.

            The district court accepted Chris Lorenz’s valuation of replacement stereo equipment and ordered restitution in the amount of $1,667.75.  This appeal follows.

D E C I S I O N

I.

 

A crime victim has the right to restitution as part of the disposition of a criminal charge that results in conviction.  Minn. Stat. § 611A.04, subd. 1 (2002).  The district court has wide discretion in ordering reasonable restitution, but there must be a factual basis for establishing the victim’s loss.  State v. Chapman,362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985).  The state has the burden of establishing by a preponderance of the evidence the amount of the loss sustained by the victim.  Minn. Stat. § 611A.045, subd. 3 (2002).  On appeal from a restitution order, we determine whether the district court abused its discretion.  State v. Hanninen,533 N.W.2d 660, 663 (Minn. App. 1995).

            As a preliminary matter, T.S.H. argues, and the state concedes, that the district court erred by awarding restitution for the amplifier that had its nameplate removed.  The state introduced no evidence showing that the value of the amplifier was quantifiably decreased by the cosmetic damage. The district court ordered $331.95 in restitution for the amplifier, and that amount must be deducted from the restitution order.   

Restitution is intended to restore a crime victim to his original financial condition.  State v. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996).  T.S.H. argues that by ordering restitution for replacement items whose prices were higher than the original purchase prices of the stolen items, the district court conferred a windfall on the victim.  We disagree.  There is no evidence that the replacement items were of higher quality than those stolen by T.S.H.  Specifically, (1) the replacement CD player cost approximately $60 more than the original, but there was evidence that Audio King no longer carried the brand that Lorenz originally purchased and that the replacement proposed was the lowest-priced equivalent model; (2) the two replacement subwoofers were more expensive than the originals, but Lorenz testified that the original subwoofers were purchased at a sale price that was no longer available; (3) the subwoofer box was approximately $100 more than the original, but the evidence shows that it was “exactly comparable” to the original; and (4) the replacement wiring harness was $40, and, while T.S.H. claims a cheaper wiring harness was available on the Internet, the difference in cost is de minimis.  While T.S.H. may have found what he claimed were equivalent replacement items at lower prices than those found by Chris Lorenz, T.S.H. admitted that he is not sure that the items he proposed would be compatible as a system.  

T.S.H. also argues that the district court abused its discretion by ordering restitution that was not established in the record in order to compensate the Lorenz family for the “time and effort” they expended in recovering their loss.  Minnesota law permits compensation for economic losses other than out-of-pocket expenses.  State v. Colsch, 579 N.W.2d 482, 484 (Minn. App. 1998).  But T.S.H. argues that no evidence of such losses was submitted, and, therefore, the award should not compensate the family for the time they were required to spend as a result of the crime.  But the district court’s restitution order is based on evidence of the cost of purchasing items equivalent to those stolen.  No part of the order reflects compensation to the Lorenz family for losses other than out-of-pocket expenses.

Because there was a basis in fact for the amount of restitution ordered, we conclude that, except for the replacement cost of the amplifier, the district court did not abuse its discretion in ordering restitution.    

II.

In determining the amount of a restitution award, the district court must consider not only the victim’s loss, but also the defendant’s income, resources, and obligations.  Minn. Stat. § 611A.045, subd. 1(a) (2002).  The Minnesota Supreme Court has determined that the legislature intended to give courts wide flexibility to structure restitution orders to take into account a defendant’s ability to pay.  State v. Maidi, 537 N.W.2d 280, 285-86 (Minn. 1995). 

T.S.H. argues that he is unable to pay the amount of restitution ordered because of his income and other financial obligation; he argues that the district court should have considered the futility of ordering an “overwhelming” amount of restitution, citing Hanninen,533 N.W.2d at 662.  But in Hanninen,the defendants were ordered to pay restitution in the form of foster-care payments in indefinite amounts for an indefinite period.  Id.  Here, the amount T.S.H. has been ordered to pay is specific.  And in Maidi, the supreme court upheld an order for more than $147,000 in restitution, although the defendant earned only $6.50 per hour.  Maidi, 537 N.W.2d at 285. 

We find no suggestion that the district court ignored T.S.H.’s income, resources, or obligations when it ordered restitution.

III.

Finally, T.S.H. argues that the amount of the restitution ordered was intended to punish T.S.H. for his crime.  Restitution is intended to compensate a victim, not to punish a defendant.  State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).  Although the district court expressed on the record its disapproval of T.S.H.’s actions, there is no evidence that it ordered restitution to punish T.S.H.

Except for the $331.95 ordered for the cost of a new amplifier, the amount of the restitution order is supported by the evidence at the hearing.  We therefore affirm restitution in the amount of $1,335.80.

Affirmed as modified.