may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Joseph Marra,
Filed September 30, 1997
Olmsted County District Court
File No. K796517
Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, 151 SE 4th Street, Rochester, MN 55904 (for Respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue SE, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.
Appellant James Marra challenges the district court restitution order in the amount of $5,326.79, arguing that he only stole $3,482.13. We affirm.
At the sentencing hearing, the public defender told the court that Marra was willing to pay restitution of $3,482.13 because he took the October 14 and November 4 deposits, but that Marra denied taking the November 18 and 19 deposits. At the restitution hearing, Marra testified that he took the October 14 and November 4 deposits, but denied the theft of any other deposits. The district court ordered restitution in the amount of $5,326.79.
must be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution is on the prosecution.
Minn. Stat. § 611A.045, subd. 3 (1996). Courts have wide discretion in ordering restitution, but there must be a basis in fact for establishing the victim's loss. State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985). Absent an abuse of discretion, a reviewing court will not disturb the amount of a restitution order. State v. Hanninen, 533 N.W.2d 660, 663 (Minn. App. 1995).
Marra argues that the district court erred in ordering him to pay $5,326.79 in restitution because he denied taking the November 18 and 19 deposits of $1,844.66. Marra relies on State v. Womack, 319 N.W.2d 17 (Minn. 1982), where the supreme court held that the district court erred in basing a sentencing departure on conduct the defendant denied when he entered his guilty plea. Id. at 19. Womack is inapposite because it involved a sentencing departure, not restitution.
The statute under which Marra was convicted required the state to prove beyond a reasonable doubt that Marra took property worth more than $2,500. See Minn. Stat. § 609.52, subds. 2(1), 3(2) (1996) (describing acts constituting theft and sentencing guidelines). But the standard for purposes of determining restitution is a preponderance of the evidence, and the district court could determine that Marra misappropriated $5,326.79, even if the state did not prove the theft of that amount beyond a reasonable doubt. See State v. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996) (concluding fact that state proved beyond reasonable doubt theft of more than $500, but not more than $2,500, did not preclude district court from ordering restitution in amount of $45,341 under preponderance of evidence standard).
Marra also cites Chapman, where this court held that the defendant's informal admissions that she had misappropriated funds were not an adequate basis to hold her liable for the victim's total shortfall. 362 N.W.2d at 404. The defendant there was charged with eight counts of aggravated forgery, embezzlement, and theft of funds totalling $47,656.95, and she pleaded guilty to one count of embezzlement and one count of theft in the amount of $16,819.62. Id. at 402. Chapman is distinguishable because this court held that the amount of restitution ordered was in excess of the terms of the plea agreement. Id. at 404. Here, there was no plea agreement, and there was an adequate basis in fact to support the amount of restitution ordered.
Although Marra was not responsible for the deposits on November 18 and 19, he came to Wendy's to do paperwork. Marra told a coworker on November 19 that he was going to leave the state and change his name and social security number. Marra testified that he was the last person in Wendy's on November 19 and that he intended to make a deposit, but he put the money back in the safe when he realized that he had given his deposit key to another Wendy's employee. That employee denied Marra gave him a deposit key. Marra's girlfriend told the police that Marra had asked his mother and stepfather for money. Marra's ex-wife opined that Marra has a gambling problem. The evidence shows that Marra had the opportunity and the motive to take the November 18 and 19 deposits.
Moreover, the evidence shows that Marra did not clearly deny taking the November 18 and 19 deposits when he first spoke to the police. The report of the officer who interviewed Marra on December 8, 1995, shows that Marra admitted taking about $3,000 from Wendy's, and when the officer asked if Wendy's claim that he took $5,326.79 could be correct, Marra responded, "It could be." Although Marra testified at his plea hearing that he believed he only took about $3,000, he did not specifically deny until the sentencing hearing that he took the deposits for November 18 and 19. The state showed by a preponderance of the evidence that Marra stole $5,326.79 from Wendy's, and the district court did not err in ordering restitution in that amount.