This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Daniel Dean Heintz,
Filed October 25, 2005
Dakota County District Court
File No. K0-02-2140
Mike Hatch, Attorney General,
James C. Backstrom,
John M. Stuart, State Public
Defender, Cathryn Middlebrook, Assistant
Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from an order for restitution resulting from a conviction of third-degree assault, appellant argues that the district court abused its discretion by ordering appellant to pay restitution to the assault victim for lawn-service costs and to the insurance company that paid the victim’s workers’-compensation claim. We affirm in part, reverse in part, and remand.
May 16, 2002, while appellant Daniel Dean Heintz and the victim, T.M., were
doing construction work on the roof of
was charged with and pleaded guilty to third-degree assault, in violation of
Minn. Stat. § 609.223, subd. 1 (2002).
The district court issued an order for restitution requiring Heintz to
pay T.M. $3,825 for lawn-service costs that T.M. incurred while he was injured
and to pay
D E C I S I O N
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(a) (2002). The district court has wide discretion to order reasonable restitution, but there must be a factual basis establishing the victim’s loss. State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985). If an order for restitution is challenged, the state must establish the amount of the loss sustained by the victim by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3(a) (2002).
Heintz first challenges the evidentiary basis of the restitution order requiring him to pay T.M. $3,825 for lawn-service expenses. He argues that the state did not submit sufficient evidence to establish the reasonableness of T.M.’s claim or to show a causal connection between T.M.’s injuries and his inability to maintain his lawn.
At one of the restitution hearings, the state submitted a $3,825 lawn-service invoice received by T.M., which, the state represented, is the result of a $325 weekly lawn-service charge that T.M. incurred during the three-month period after the assault. For reasons that do not appear in the record, T.M. left the hearing before testifying. The hearing continued without T.M., and the state argued that T.M. owns a parcel of land with six acres of lawn and that the injuries he received from the assault made it impossible for him to maintain his lawn for three months.
A district court may impose sanctions
for “any out-of-pocket losses resulting from the crime.” Minn. Stat. § 611A.04, subd. 1(a). But a victim’s losses must be directly caused
by a defendant’s criminal conduct. State v. Latimer, 604 N.W.2d 103, 105 (
Here, but for the assault, T.M. might
have been able to maintain his lawn and avoid the $3,825 lawn-service expense. The state argued at the restitution hearing that
T.M.’s injuries made it impossible for him to maintain his lawn. But the arguments of counsel are not
evidence. State v. McCoy, 682 N.W.2d 153, 158 (
Heintz also argues that the district
court abused its discretion by ordering him to pay
determining the amount of restitution, the court shall consider “the amount of
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)
(2002). But the district court has “wide
flexibility to structure restitution orders that take into account a defendant’s
ability to pay . . . a reduced monthly payment.” State
v. Maidi, 537 N.W.2d 280, 285–86 (Minn. 1995) (affirming $147,251.27
restitution order imposed on a defendant who earned $6.50 per hour because the
district court considered the defendant’s resources when it determined the
restitution payment schedule). Here, the
district court noted that Heintz “is physically able and otherwise eligible to
work while in prison, and is likely to remain or become employed once his
sentence is completed.” Although the
record shows that Heintz’s 2003 income was below the federal poverty level, the
district court considered Heintz’s financial circumstances and contemplated a
structured “regular payment plan.”
Because the district court properly considered Heintz’s financial
circumstances, we conclude that it did not abuse its discretion by ordering
Heintz to pay
Affirmed in part, reversed in part, and remanded.