This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Yorel A. Sandlin,
Filed September 4, 2007
Ramsey County District Court
File No. K2-05-3937
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Jessica Benson Merz Godes, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
Following a jury trial, appellant Yorel A. Sandlin was found guilty of first-degree burglary for breaking into the home of one of his neighbors. See Minn. Stat. § 609.582, subd. 1(a) (2004) (entry of dwelling without consent and with intent to commit crime, while another person is in dwelling, constitutes first-degree burglary). The district court sentenced him to 45 months in prison, the presumptive sentence under the guidelines, and ordered him to pay $113.43 in restitution for a broken window.
Because the district court did not abuse its discretion in allowing the state to present rebuttal testimony and because appellant failed to properly challenge the request for restitution, we affirm.
challenges the district court’s decision to allow the state to present rebuttal
testimony. Rebuttal evidence consists of
evidence that explains, contradicts, or refutes evidence presented by the defendant. State
v. Gutierrez, 667 N.W.2d 426, 435 (
In Swanson, the defendant testified that he
and a companion were “cruising” around town looking for a party and denied
following anyone that night; the state was allowed to call a rebuttal witness,
who testified that defendant and his companion had walked toward her that
night, spoken to her in a menacing tone, and watched her until she was inside
Here, the district court allowed the state to call one of the neighbor’s daughters as a rebuttal witness after the sole defense witness testified that appellant and the daughter were friends and suggested that the daughter may have given appellant permission to enter the home on the morning of the incident. Appellant insists that, unlike the rebuttal testimony in Swanson, the testimony presented here by the neighbor’s daughter offered entirely new information that the state had neglected to present in its case-in-chief. We disagree.
The district court allowed the rebuttal testimony to challenge the testimony of the sole defense witness that suggested appellant and the daughter were such good friends that appellant was either given permission to enter the home or could have reasonably believed that he had permission. Because the daughter’s testimony was properly admitted to rebut the testimony of the defense witness, the district court did not abuse its discretion.
challenges the district court’s decision orderING him to pay $113.43 in
restitution to replace the broken basement window. But appellant failed to request a hearing
within 30 days after sentencing, as required by Minn. Stat. § 611A.045, subd.
3(b) (2004) (“An offender may challenge restitution, but must do so by
requesting a hearing . . . within 30 days of sentencing[.] The hearing request must be made in writing
and filed with the court administrator. .
. . A defendant may not challenge
restitution after the 30-day time period has passed.”). In addition, appellant has not submitted a
“detailed sworn affidavit” in which he challenges the amount of
restitution. See Minn. Stat. § 611A.045, subd. 3(a) (2004). Appellant thus has failed to meet his burden
of production and cannot now challenge the restitution order.
Finally, even if considered, appellant’s challenges must be rejected. In particular, appellant argues that the restitution order must be vacated because no factual basis was offered to show that appellant caused the damage or to support the amount claimed and because the district court failed to consider appellant’s financial circumstances. But both the homeowner and her son testified that the window was broken on the day of the burglary, and the homeowner submitted an affidavit stating that her out-of-pocket loss resulting from the crime was $113.43 for “[b]asement window destroyed during break-in.” At the sentencing hearing, the district court stated that “there was clearly a broken basement window” and that any payment of restitution and fees should be deducted from appellant’s prison wages. The record thus provides a factual basis for restitution and shows that the district court considered appellant’s financial circumstances.
Appellant’s conviction and sentence are therefore affirmed.