Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Hollis Duane DeVoe,
Filed November 25, 1997
Olmsted County District Court
File No. K3-95-519
Hubert H. Humphrey, III, Attorney General, Jonathan C. Audette, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Foley, Judge.
Appellant Hollis DeVoe argues that the district court erred in imposing multiple punishments for his convictions for forgery and unlawful disposal of solid waste because the crimes were part of a single behavioral incident. DeVoe also argues that the district court erred in ordering restitution to two businesses because they were not victims of the crimes for which he was convicted. We affirm.
When his deceptive practices were uncovered, DeVoe was charged with one count of forgery in violation of Minn. Stat. § 609.63, subd. 1(6) (1996), for having submitted false reports to the MPCA, one count of unlawful transportation of solid waste, and one count of unlawful disposal of solid waste, both in violation of Minn. Stat. § 609.671, subd. 13 (1996).
DeVoe was convicted following a bench trial of forgery (count I) and arranging for the unlawful disposal of solid waste (count III). The district court found DeVoe guilty of the portion of count II that related to unlawful transportation of solid waste to the Penz farm, but not guilty of the portion of count II that related to unlawful transportation of solid waste to the Trucker's Inn, because it found that the Trucker's Inn was not meant to be a disposal site in accordance with Minn. Stat. § 609.671, subd. 13. To avoid confusion on its ruling, and apparently because it viewed count II as superfluous, the district court dismissed count II in its entirety.
The district court imposed a stayed prison term of 366 days for the forgery conviction. As conditions of probation, DeVoe was ordered to serve 30 days in jail, pay a $5,000 fine, and refrain from any involvement in the collection, storage, or recycling of tires. The district court also stayed the sentence on the unlawful disposal of solid waste conviction on the condition that DeVoe pay an additional fine of $2,200.
After a restitution hearing, the district court also ordered DeVoe to pay restitution of $14,080 to Morken Transport Storage, Inc. and $2,078.25 to Trucker's Inn for economic losses they sustained arising out of DeVoe's unlawful disposal of solid waste. The amounts awarded represented the cost of unloading and properly disposing of the waste tires that were stored in trailers leased to DeVoe by Morken Transport and the Trucker's Inn. DeVoe challenged the amount of restitution claimed at the restitution hearing, but never challenged whether Morken Transport or the Trucker's Inn were victims under the restitution statute and whether the district court could order any restitution for them.
The district court found that the crimes of forgery and unlawfully arranging for the disposal of solid waste arose from separate behavioral incidents and thus imposed separate stayed sentences for the two crimes.
An appellate court may review the district court's determination that the underlying conduct was not a single behavioral incident to determine whether the record supported the decision. State v. Nordby, 448 N.W.2d 878, 880 (Minn. App. 1989). However, the district court's determination will not be reversed unless it is clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).
Minn. Stat. § 609.035, subd. 1 (1996), governs sentencing where an act is punishable under different provisions of the criminal code. It provides:
Except as provided in subdivision 2, * * * if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
A criminal defendant is entitled to the protection afforded by Minn. Stat. § 609.035 when the conduct underlying the multiple convictions constitutes a single behavioral incident, rather than a divisible series of incidents. State v. Krampotich, 282 Minn. 182, 186, 163 N.W.2d 772, 775-76 (1968).
It is well settled that unity of time is an essential element of a "single behavioral incident." See, e.g., State v. Pittel, 518 N.W.2d 606 (Minn. 1994) (thefts occurring on different dates held not part of single behavioral incident despite fact that each involved same victim and single scheme); State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525 (1966) ("apart from the factors of time and place, the essential ingredient of any test is whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective").
DeVoe concedes that the forgery occurred on a date different from the unlawful disposal of solid waste, the unlawful disposal having begun long before the forgery occurred. DeVoe's claim that his conduct was a single behavioral incident therefore fails.
Moreover, the district court's finding that the two crimes were not a single behavioral incident does not unfairly exaggerate the criminality of DeVoe's conduct. DeVoe's forgery allowed him to continue to dump tires illegally for many months beyond the initial instances of dumping, and the combined sentences for the two crimes were well within the statutory guidelines.
Accordingly, the district court did not err in imposing multiple punishments for the crimes of forgery and unlawful disposal of solid waste.
A district court has wide discretion in determining the amount of restitution to be paid by a criminal defendant. State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990). Whether a particular item of restitution fits within the statutory definition is a question of law, however, and is fully reviewable by appellate courts. State v. Esler, 553 N.W.2d 61, 63 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996). Only the victim of a crime is allowed to receive restitution. Minn. Stat. § 611A.04, subd. 1 (1996); State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994), review denied (Minn. June 15, 1994). A "victim" for purposes of the restitution statute means a natural person or corporation that "incurs loss or harm as a result of a crime." Minn. Stat. § 611A.01, subd. (b) (1996).
Although DeVoe failed to challenge whether Morken Transport and the Trucker's Inn could properly be considered victims at the restitution hearing, a defendant cannot waive his right to a lawful sentence. Harwell, 515 N.W.2d at 110. Thus, if Morken Transport and the Trucker's Inn are not victims within the meaning of the restitution statute, the district court exceeded its authority in awarding them restitution.
DeVoe's previous failure to challenge whether Morken Transport and the Trucker's Inn are appropriate restitution victims renders the issue not fully reviewable in the practical sense, however. DeVoe's failure deprived the district court of the chance to clarify its basis for finding these claimants victims of the conduct for which it convicted DeVoe in count III. Thus, this court is left to speculate what relationship the district court found between the claimants' losses and the conduct supporting DeVoe's conviction. Knowing only that the district court thought that the conduct underlying DeVoe's conviction for unlawful disposal of solid waste caused economic losses to the claimants, it is difficult for this court to second-guess the district court, particularly because the district court is much more familiar with the complex facts and nuances of this case. See O'Brien, 459 N.W.2d at 133 (the district court "is in the best position to weigh the various sentencing options" and therefore should be accorded "wide discretion in ordering reasonable restitution").
It appears that the district court viewed DeVoe's temporary storage of some tires in trailers at the Trucker's Inn and ultimate disposal of many tires at the Penz farm as inextricably related in his overall scheme to dump tires. The record indicates that initially the trailers at the Trucker's Inn were merely a stopping point for collected tires, en route to eventual illegal disposal at the Penz farm. By the summer of 1992, however, the Penz farm apparently was becoming full, and the collected tires began to pile up and remain in the trailers at the Trucker's Inn.
It further appears that the district court found DeVoe not guilty of the charge of unlawful transportation of solid waste in connection with trailers stored at the Trucker's Inn simply because DeVoe did not transport the tires to the Trucker's Inn with the purpose of permanently disposing of them there. This is not the same as finding that the conduct was legal, however; it was just not illegal under the portion of the statute charged in count II.
The district court convicted DeVoe on count III, which charged him with unlawfully arranging for the disposal of waste tires at a location that does not have a required permit (the Penz farm). For purposes of restitution, it appears that the district court viewed DeVoe's arranging for the disposal of waste tires at the Penz farm to include the waste tires that DeVoe temporarily stored at the Trucker's Inn (which tires DeVoe presumably had meant to dump at the Penz farm as well, had he not been thwarted by the eventual lack of room).
Although the district court did not so specify, it is possible that it viewed the conduct underlying the forgery conviction as related to Morken Transport and the Trucker's Inn's losses as well. The district court could have believed from the record that had it not been for DeVoe's forgery in April of 1992, DeVoe's illegal tire collecting practices would have been shut down by the MPCA much earlier, soon enough perhaps even to have prevented the build-up of tires in the trailers at the Trucker's Inn that began in the summer of 1992 and led to Morken Transport's and the Trucker's Inn's losses.
Because the district court reasonably could have considered Morken Transport's and the Trucker's Inn's losses to have arisen from the conduct for which it convicted DeVoe in counts I and III, it did not err in ordering restitution. See State v. Olson, 381 N.W.2d 899, 900-01 (Minn. App. 1986) (restitution proper for money stolen as result of burglary even though defendant convicted only of burglary charge and not related theft charge because defendant clearly participated in burglary for purpose of taking money and money was in fact stolen).
DeVoe does not support his alternative argument that Morken Transport and the Trucker's Inn should not have been awarded restitution as a matter of public policy because they had "unclean hands" with any relevant case law, nor is such argument supported by the record. Morken Transport and the Trucker's Inn were not co-conspirators in DeVoe's scheme to profit from collecting and dumping waste tires; they merely leased trailers and parking space to DeVoe in a typical arms-length leasing transaction. When the Trucker's Inn began to notice that the tires in the trailers were remaining on its property for an extended period of time and suspected that something might be wrong with the situation, it took reasonably prompt measures to remedy the situation. Accordingly, Morken Transport and the Trucker's Inn were clearly victims of, not participants in, DeVoe's scheme.