This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-998

 

State of Minnesota,
Respondent,

vs.

Chad Nathan Kendall,
Appellant.

 

Filed August 1, 2006

Affirmed in part and reversed in part

Peterson, Judge

 

Itasca County District Court

File No. CR-04-2123

 

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

 

Chad B. Sterle, Grand Rapids City Attorney, Dimich, Swanson, and Sterle, 102 Northeast Third Street, Suite 120, Grand Rapids, MN  55744 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from his conviction of gross-misdemeanor driving after cancellation and from an order and judgment for restitution, appellant Chad Nathan Kendall argues that the prosecutor committed prejudicial misconduct during closing argument and that the district court erred in ordering appellant to pay certain costs as restitution.  We affirm appellant’s conviction and reverse the order and judgment for restitution.

FACTS

            Grand Rapids Police Officer Frank Scherf saw a vehicle pulling a trailer drive through an intersection without stopping for a stop sign.  As Scherf approached the intersection, a second vehicle stopped at the stop sign and then drove through the intersection.  Scherf followed both vehicles.  Two blocks later, at a stop sign, Scherf pulled up next to the second vehicle to pass it so that he could stop the first vehicle.  Scherf made eye contact with the driver of the second vehicle and later identified appellant as the driver.  Scherf caught up to the first vehicle as it pulled into the yard of a house at 338 Eighth Street and stopped.  Appellant lived at that house. 

            Scherf approached the driver of the first vehicle and got into a conversation with him about why he did not stop at the stop sign.  The driver told Scherf that he needed to go into the house to retrieve whatever documentation Scherf had requested.  Scherf saw the driver enter the house through the front door and then saw him going out the side door at a dead run trying to get away.  Scherf radioed for assistance and ran toward the back of the house.  He saw a vehicle driving through a parking area behind the house toward an alley.

            Tim George, a registered paramedic and operations manager for an ambulance service who had a police radio, lived across the street.  George heard Scherf’s call on the police radio and went outside to see what was happening.  Using his police radio, George alerted Scherf that the vehicle that Scherf had seen driving behind the house had come back and parked behind the house.  George testified that he saw appellant get out of the vehicle after it pulled up to the back of the house.  Scherf did not see the vehicle return.  Scherf testified that appellant showed up in the front yard and he recognized him as the person he had seen driving the second vehicle at the intersection.  Scherf also testified that the vehicle parked behind the house appeared to be the same vehicle that he had seen at the stop sign. 

            Scherf had a conversation with appellant and eventually arrested him.  Appellant was charged by complaint with gross-misdemeanor driving after cancellation, in violation of Minn. Stat. § 171.24, subd. 5 (2002) (driving after driver’s license or driving privilege has been canceled or denied as inimical to public safety or welfare).   

            At a December 13, 2004 omnibus hearing, the prosecutor informed the court and defense counsel that the state would not be introducing at trial any statements that appellant made to Scherf.  Appellant entered a not-guilty plea, and a jury trial was scheduled for January 13, 2005.  Appellant did not appear on time on January 13, and after waiting half an hour, the district court discharged the assembled jurors.  The prosecutor informed the court that during the previous week, Scherf had told the prosecutor that on the night he was arrested, appellant made incriminating statements that were not in the police report.  The state conceded that because it failed to produce the statements, the state could not introduce them in its case-in-chief, but argued that the statements could be offered as impeachment evidence, depending on appellant’s testimony.  Appellant eventually appeared on January 13, and the trial was rescheduled for February 16, 2005.

            At trial, appellant testified that he was not the driver of the second vehicle and that he was at home when the first vehicle arrived.  Appellant testified that he saw the driver of the first vehicle run through the house and then saw the person who appellant claimed was driving the second vehicle come into the house and hide downstairs.  Appellant then heard pounding on his back door, and when he opened the door, there was a police officer who grabbed him by the arm and took him outside.  Appellant testified that the officer asked him twice if he was driving the car, and he said “no.”  Appellant’s fiancé was at the house during the incident, and her testimony at trial was consistent with appellant’s testimony.

            On rebuttal, Scherf testified that he did not pull appellant from the house and that when he talked to appellant about driving that day, appellant said that he was driving the second vehicle.  Scherf also identified the incident case report that he wrote about the incident later during his shift and read the following statement in the report: “Defendant denied assisting other driver in running, but did admit he was driving earlier when other driver ran the stop sign in front of him.”

            The jury found appellant guilty, and the district court sentenced him to 365 days in jail, with all but 30 days suspended, and fined him $965.  The district court also ordered appellant to pay as restitution: $600 to the Itasca County Court Administrator for the cost of assembling the jury on January 13 when appellant failed to appear; $135.84 to the Grand Rapids Police Department for Scherf’s wages when he appeared but could not testify because appellant did not appear; and $105 to George’s employer for wages when George appeared but could not be called to testify because appellant did not appear.  This appeal followed.

D E C I S I O N

            Prosecutorial Misconduct

            Appellant argues that the prosecutor committed serious misconduct when he argued during closing argument that appellant’s statement to Scherf that he was driving the second vehicle, which Scherf testified about only on rebuttal, could be used by the jury as substantive evidence.   Appellant did not object to the prosecutor’s statement at trial. 

            “[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “If those three prongs are met, we may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted). 

            Appellant concedes that Scherf’s testimony about appellant’s prior statement was admissible for impeachment purposes.  See State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999) (explaining that prior inconsistent statement not given under oath is not admissible substantively but may be admitted under Minn. R. Evid. 607 for impeachment purposes).  But appellant contends that the prosecutor improperly asked the jury to use the statement as substantive evidence.  During closing argument, the prosecutor stated:

            You all have your personal experiences in life.  You all bring those to being a juror.  Please use those in your deliberation in determining whether [appellant] and his fiance’s version of the facts are true, or the officer and the paramedic’s are true.

 

            Not only, though, ladies and gentlemen, do we have the officer and the paramedic saying [appellant] was driving; we also have [appellant] saying he was driving.  Right after this happened, somewhere between that and the end of Officer Scherf’s shift, he writes an [incident case report] relative to [the incident].  And he puts in there very specifically [appellant] denies helping [the driver of the first vehicle] flee, but does admit driving the vehicle at the earlier intersection where the vehicle failed to yield the right-of-way at a stop sign.

 

            These things only became relevant, only became a concern, here at trial today.  The officer didn’t have presence of mind to know minutes and hours after this happened, that, ah-ha – to believe that, you actually have to believe that he actually physically perjured himself eight months ago by writing this.

 

            He had a conversation with [appellant], and [appellant] told him after he was arrested that he was driving earlier.  The officer, Tim George, and even [appellant].  It all comes down to credibility, ladies and gentlemen. 

 

            During rebuttal, the prosecutor stated:

His testimony from [the incident case report] was, [appellant] stated he didn’t help [the driver of the first vehicle] escape.  He didn’t help him.  But, yes, he was driving the vehicle that was following – he was driving the vehicle that was following the vehicle that went through the stop sign.

 

            They had a conversation about it.  He even admitted it.  But yet now he’s going to come into court with his fiance and try to encourage you to side otherwise.

 

            Look at all the inconsistencies in his own statements.  Was there an engine puller or wasn’t there an engine puller?  Did he have all the tools at home, or were they in his trunk?  Did he have a come-along?  Did he have pry bars.  Did he need them?  The list goes on and on.

 

            Did Tim George threaten to kill his cat?  On and on.  [Defense counsel is] not right.  It does not come down to circumstances, and the circumstances are not terrible.  It comes down to credibility.

 

            Only [one] version of this event could have happened.  Either that officer perjured himself, as did the paramedic, Tim George, or [appellant is] not telling you the truth. 

 

            The prosecutor’s argument refers to appellant’s prior inconsistent statement only in the context of determining whether the story that Scherf and George told was true or the story that appellant and his fiancé told was true.  The prosecutor did not ask the jury to find that appellant was driving the car because appellant told Scherf that he was driving the car; the prosecutor argued that the jury should find Scherf’s trial testimony credible because it was consistent with what Scherf wrote in the incident case report long before the trial when Scherf had no way of knowing that appellant’s statement that he was driving the car would become an issue at trial.  Consequently, the prosecutor’s argument was not misconduct, and we affirm appellant’s conviction. 

            Restitution

            Appellant argues that the district court erred in ordering him to pay restitution to the Itasca County Court Administrator, the Grand Rapids Police Department, and George’s employer.  District courts have broad discretion in awarding restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999).  But whether a particular item fits within the statutory definition of restitution is a question of law reviewed de novo.  State v. Latimer, 604 N.W.2d 103, 104-05 (Minn. App. 1999).

            “A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge . . . against the offender if the offender is convicted. . . .”  Minn. Stat. § 611A.04, subd. 1(a) (2002).   

“[V]ictim” means a natural person who incurs loss or harm as a result of a crime, including a good faith effort to prevent a crime, and for purposes of sections 611A.04 and 611A.045, also includes (i) a corporation that incurs loss or harm as a result of a crime, (ii) a government entity that incurs loss or harm as a result of a crime, and (iii) any other entity authorized to receive restitution under section 609.10 or 609.125.

 

Minn. Stat. § 611A.01(b) (2002).  The supreme court has concluded that the term “victim” is limited to “the direct victim of the crime.”  State v. Jones, 678 N.W.2d 1, 25 (Minn. 2004).  The Itasca County Court Administrator, the Grand Rapids Police Department, and George’s employer were not direct victims of appellant’s driving after cancellation.  Therefore, they do not meet the definition of “victim,” and we reverse the order and judgment for restitution.

            Appellant makes additional arguments that the restitution recipients under the district court’s order are not entitled to receive restitution under statutory provisions other than Minn. Stat. § 611A.04.  But because the district court awarded restitution only under section 611A.04, we will not address appellant’s arguments.

            Affirmed in part and reversed in part.