This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Keng (NMN) Xiong, petitioner,



State of Minnesota,


Filed August 5, 1997

Affirmed in part, reversed in part, and remanded

Willis, Judge

Ramsey County District Court

File No. K2953756

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55455 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Harten, Judge.



Appellant Keng Xiong challenges the district court's order denying his petition for postconviction relief, arguing that the district court lacked jurisdiction because he was a juvenile at the time of the offense and that the district court's order of restitution was without support in the record. We affirm in part, reverse in part, and remand.


On November 20, 1995, Xiong was charged with first-degree criminal sexual conduct. He admitted to having consensual sexual intercourse with a 12-year-old girl and pleaded guilty on January 4, 1996. The district court (1) sentenced Xiong to 48 months in prison, with a stay of execution and probation for 30 years, (2) ordered Xiong to serve six months in jail and participate in a sex offender treatment program as conditions of his probation, and (3) ordered Xiong to pay $2,500 in restitution, which included $1,200 in "face" restitution to the victim, $500 in "face" restitution to the parents of the victim, $600 to buy pigs, chickens, and other items for a healing ceremony, and $200 for miscellaneous costs incurred by the parents of the victim.

Xiong filed a petition for postconviction relief, arguing that the district court lacked jurisdiction over him because he was younger than 18 at the time of the offense and that the district court's restitution order was not supported by the evidence.

Xiong's father testified at the postconviction hearing that when Xiong was born in a Thai refugee camp, the father reported the birth to camp officials, and the document he received recording the birth shows that Xiong was born in 1979, which would make Xiong younger than 18 at the time of the offense. But Xiong's father further testified that he had Xiong's birth date changed on a document at another refugee camp to make it appear that he was older, so that the family would receive a larger food ration. He testified that when his family moved to the United States, he presented the document with the incorrect birth date to immigration officials and kept the document recording Xiong's true birthday. Xiong's trial attorney testified that before he pleaded guilty, Xiong told her that he was under 18, but he did not have any documents that showed his true age. Xiong's immigration documents, driver's license, and school records, as well as the police reports, the signed Miranda warning, the complaint, and the guilty plea petition show Xiong was born in 1977 and was over 18 at the time of the offense. The district court concluded that it had jurisdiction over Xiong and that its restitution order was proper and denied Xiong's petition for postconviction relief.


In reviewing a postconviction proceeding, this court determines whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The "postconviction court's decision will not be disturbed absent an abuse of discretion." Id.

1. Jurisdiction.

Xiong argues that because he was not 18 or older at the time of the offense, the district court lacked jurisdiction. The juvenile court has exclusive jurisdiction over any child who is alleged to be delinquent. Minn. Stat. § 260.111, subd. 1 (1996). Although Xiong discussed his age with his attorney, it was not raised on the record before his sentencing, and the district court's jurisdiction was not challenged until Xiong made his posttrial motion.

Jurisdiction of the district court over the parties and the subject matter in a case entertained by it will be presumed unless want of jurisdiction affirmatively appears on the face of the record or is shown by extrinsic evidence in a direct attack on the judgment or order.

State ex rel. Great N. Ry. Co. v. District Court of Sixteenth Judicial Dist., 227 Minn. 482, 492, 36 N.W.2d 336, 341 (1949). Here, the record did not show that Xiong's age was under 18, so the district court had no reason to conclude that it lacked jurisdiction over him. Further, Xiong challenged the court's jurisdiction collaterally, rather than in a direct attack. See State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (stating that postconviction proceeding is collateral attack on judgment). We affirm the district court's exercise of jurisdiction.

Xiong argues that State v. Neguse, 594 N.E.2d 1116 (Ohio Ct. App. 1991), stands for the proposition that the prosecution has the burden of establishing the age of the defendant beyond a reasonable doubt. There, the appellant challenged the district court's denial of his pretrial motion to dismiss his indictment, arguing that it abused its discretion in finding that there was sufficient evidence to show appellant was 18 years old at the time of the offense. Id. at 1117. The appellate court affirmed, concluding that the prosecution had proven beyond a reasonable doubt that the appellant was over 18 at the time of the offense. Id. at 1122. Neguse is distinguishable from this case because, unlike Xiong, the defendant there challenged the district court's jurisdiction directly in a pretrial motion. Id. at 1117.

Xiong argues that the court erred in finding that his claim to have been born in 1979 was not credible. This court will not set aside a district court's findings of fact unless they are clearly erroneous and will give due regard to the district court's opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01. The state presented ample evidence showing that Xiong was born in 1977, and the district court's finding that Xiong's claim was not credible is not clearly erroneous. The district court did not abuse its discretion in concluding that it had jurisdiction over Xiong.

2. Restitution.

Xiong argues that the district court's restitution order was based on improper factors and was without support in the record.

A victim of a crime has the right to receive restitution as part of the disposition of a criminal charge * * *. A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including medical and therapy costs, replacement of wages and services, expenses incurred to return a child who was a victim of a crime under section 609.26 to the child's parents or lawful custodian, and funeral expenses.

Minn. Stat. § 611A.04, subd. 1(a) (1996). The district court has broad discretion in ordering restitution. State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990).

Xiong claims that the victim's parents are not victims of the crime for purposes of restitution. "'Victim' means a natural person who incurs loss or harm as a result of a crime." Minn. Stat. § 611A.01 (b) (1996). If a victim's parents suffer economic harm as a result of a crime, the court may order that restitution be paid to them. O'Brien, 459 N.W.2d at 135.

Xiong asserts that even if the victim's parents could be paid restitution, the award for miscellaneous expenses was inappropriate because it is not supported by an adequate factual basis. The victim's parents requested $200 "for miscellaneous costs, specifically parking and the time expended to resolve this case."

Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts, if restitution is in the form of money or property.

Minn. Stat. § 611A.04, subd. 1(a). In State v. Keehn, 554 N.W.2d 405 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996), the district court awarded $541.97 in restitution to a victim who stated that she needed "everything from scratch from salt and pepper to bar soap" to set up a new household. Id. at 408. This court remanded to the district court for further findings because the record did not include an itemized listing or identification of expenditures. Id. Here, the parents' request did not itemize the dollar amounts of restitution claimed, nor did it specify how "time expended" translates into a monetary cost, such as lost work time.

Xiong argues that the award of restitution for a "spiritual healing" ceremony is inappropriate because it is not the type of loss contemplated by the statute. The district court concluded that the ceremony was analogous to therapeutic counseling. The statute provides that compensation for therapy is appropriate. Minn. Stat. § 611A.04, subd. 1. However, even accounting for cultural differences, we cannot find that requiring Xiong to pay for pigs, chickens, and other items for a "spiritual healing" ceremony is analogous to therapy as contemplated by the statute. The district court abused its discretion in granting restitution for the "spiritual healing" ceremony.

Finally, Xiong argues that the order to pay "face" restitution was inappropriate because (1) if it was for purposes of Xiong's rehabilitation, it was inappropriate because the district court made no findings on his ability to pay; and (2) if it was for compensation, it was inappropriate because neither the victim nor her parents suffered a loss as contemplated by the statute.

In determining whether to order restitution and the amount of restitution, the district court considers

(1) the amount of economic loss sustained by the victim as a result of the offense; and

(2) the income, resources, and obligations of the defendant.

Minn. Stat. § 611A.045 (1996). "Restitution may be aimed at either the rehabilitation of the defendant or compensation to the victim." State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994), review denied (Minn. June 15, 1994). Where the goal is to rehabilitate, the amount should be set according to the defendant's ability to pay and need not fully compensate the victim, but where the goal is to compensate, the amount should be based on the injury to the victim. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).

The district courts have latitude in deciding what types of loss may be compensated, but restitution is appropriate only if there has been a loss. Keehn, 554 N.W.2d at 407 (finding that deposits that will eventually be refunded to victim are not losses for which restitution is appropriate). The word restitution connotes compensation for a loss. Fader, 358 N.W.2d at 48 (remanding for findings on sexual assault victim's economic loss).

If the legislature intended the term [restitution] to be used more loosely, as a form of punitive damages, it should have used some other word or made its particular use of the word clearer.


The district court's order for "face" restitution is not compensation for a loss as contemplated by the statute and more closely resembles punitive damages than restitution. Further, it does not appear that the district court considered Xiong's ability to pay. The district court therefore abused its discretion in granting "face" restitution to the victim and her parents.

The restitution order is vacated, except the portion regarding the miscellaneous expenditures of the victim's parents, which is remanded for an itemization of the miscellaneous costs they incurred.

Affirmed in part, reversed in part, and remanded.