This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Michael Antwan Spann,
Filed April 3, 2007
Ramsey County District Court
File No. K9-05-001506
Lori Swanson, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John Stuart, State Public Defender, Suzanne M.
Senecal-Hill, Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from conviction and sentencing for simple robbery, Michael Spann challenges the admissibility of evidence not objected to at trial and also challenges the order for restitution to the owner of the stolen car. Because the district court did not abuse its discretion in ordering restitution and the inadmissible evidence does not constitute plain error, we affirm.
F A C T S
Spann approached a man in the parking lot of an
At trial, the car owner was reluctant to testify and had to be subpoenaed. The prosecutor asked the car owner why he was uncomfortable testifying and why he had to be subpoenaed. Through an interpreter, the car owner said:
Because I have my family with me. I have my girlfriend with me, too. And I think when you come in front of and accuse a person, I don’t think that person is going to feel happy about it. And I’m scared that something might happen to my family. That’s what I worry about.
The defense did not object.
Later in the trial, a police officer’s testimony disclosed to the jury that Spann was a suspect in another robbery. Apparently, Spann had been stopped because police had information that the stolen car he was driving had been involved in the other robbery. As part of a long answer, the officer stated, “I was informed by another investigator . . . that they had two individuals in custody for another robbery.” He went on to say that he asked the car owner to “review a couple of photo line-ups because we had arrested somebody for another robbery . . . in his vehicle.” At another point, the officer said, “I explained to him that that was one of the individuals that we did have in custody who was actually driving the vehicle of another robbery.” Spann did not object to these statements.
The jury found Spann guilty of simple robbery. During sentencing, the district court addressed the issue of restitution. After the car had been recovered, the police department refused to return it to the car owner, apparently because the car owner did not have insurance. The police department eventually sold the car at an auction and kept the money it received. The district court said, “As far as restitution is concerned . . . I’m not going to order that you pay the full purchase price on the car, Mr. Spann. I just don’t think it’s fair.” The district court then ordered Spann to pay $500 in restitution. Spann now appeals his conviction and the restitution order.
D E C I S I O N
general, the failure to object to the admission of evidence constitutes a
waiver of the issue on appeal. State v. Vick, 632 N.W.2d 676, 684 (
Evidence of other crimes committed by
the defendant is considered Spreigl evidence.
a district court’s “failure to sua sponte strike unnoticed Spreigl evidence or provide a cautionary instruction is not ordinarily
plain error.” Vick, 632 N.W.2d at 685.
Because the district court did not know that the evidence would be
admitted, it is inappropriate to ask whether the court should have admitted the
evidence in the first place.
also reject Spann’s argument that it was plain error to allow evidence about
the car owner’s fear of testifying and the necessity of a subpoena. We conclude, initially, that the evidence
about the subpoena and the car owner’s reluctance to testify was relevant. Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
correctly points to cases indicating that it can be unduly prejudicial to admit
testimony about a witness’s fear. State v.
Spann contends that the order for restitution should be reversed because the police department’s decision to sell the car was a superseding cause of the car owner’s loss. The state agrees that the record does not support the restitution order but bases its concession on insufficient evidence.
state concedes that the restitution order should be vacated because the car
owner did not submit an affidavit establishing his loss, and the district court
did not make specific findings to support the amount ordered. The car owner’s affidavit, however, is part
of the formal notice of restitution that is contained in the record. Furthermore, the state has cited no authority
for its claim that the district court was required to make specific findings,
and the state’s claim has no basis in the text of the restitution statute. The
state’s concession, therefore, appears to be based on a limited view of the
record and we decline to be bound by it.
See State v. Warren, 419
N.W.2d 795, 799 (
district court has significant discretion in ordering restitution. State
v. Tenerelli, 598 N.W.2d 668, 671 (
previous cases, we have indicated that restitution “is only proper when the
victim’s losses are ‘directly caused’ by the conduct for which the defendant
In this case the car owner’s losses are not so attenuated. Spann argues that the police department’s decision to auction the car was a superseding cause of the owner’s loss. But the police department only had possession of the car because of Spann’s robbery. If the owner had been able to afford insurance, he apparently could have recovered his car. Spann cannot avoid the consequences of his actions because of the owner’s indigency. When a car is stolen, it is reasonably foreseeable that the owner may not recover the vehicle. Thus, the owner’s loss was directly caused by Spann’s acts. Furthermore, the district court recognized that a portion of the car owner’s losses may not have been caused by Spann and ordered only partial restitution.
Although the car owner in this case
might still recover money from the police department, an “actual or prospective
civil action . . . shall not be used by the court as a
basis to deny a victim’s right to obtain court-ordered restitution.”