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,
Mitchell Edward Williams,
Filed September 22, 1998
Isanti County District Court
File No. K797726
Jeffrey Edblad, Isanti County Attorney, Courthouse, 555 18th Avenue SW, Cambridge, MN 55008 (for respondent)
John M. Stuart, State Public Defender, Dwayne Bryan, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.
Appellant Mitchell Edward Williams was convicted of theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subd. 2(1), and felony possession of stolen property, in violation of Minn. Stat. §§ 609.53, subd. 1, and 609.52, subd. 3(3)(d) (1996). Williams appeals, arguing the trial court should be reversed because (1) the prosecutor committed misconduct during his closing argument; (2) there was no basis on which to support the order to pay restitution; and (3) there was no basis to banish him from the City of Crystal for five years. We affirm.
1. Prosecutorial Misconduct
Whether a new trial should be granted because of the misconduct of the prosecuting attorney is governed by no fixed rule, but rests within the discretion of the trial judge, who is in the best position to appraise its effect. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).
The trial court's decision should be reversed on appeal only if the misconduct, "viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied."
State v. Moseng, 379 N.W.2d 154, 156 (Minn. App. 1985) (quoting Wahlberg, 296 N.W.2d at 420).
Williams argues the prosecutor committed misconduct during his closing argument to the jury. Specifically, he takes issue with the prosecutor's following statement:
I will tell you about conspiracy theories. Think of the O.J. Simpson case. Conspiracy Defenses. This is a false report, this is a set up. Those are done, those are used as defenses whenever there is a strong case--[Objection by defense counsel] [Court asks both parties to approach the bench--off the record discussion--back on the record.] It's done when there is no other alternative, there is no witness to support a defense, it's the only thing you have got to present to the jury, and to present to the police the setup, the false report.
Williams contends that these comments were intended to inflame the jury and cause them to discount his defense. He claims, therefore, that the prosecutor's misconduct was not harmless, and he is entitled to a new trial.
During closing argument, a prosecutor may argue all proper inferences from the evidence. Wahlberg, 296 N.W.2d at 419. A defendant who fails to object at trial to any statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). A reviewing court may reverse, however, notwithstanding the defendant's failure to preserve the issue, if the court deems the error sufficient to do so. Id. The comments, however, albeit improper, must rise to the level of being so serious or prejudicial that the defendant did not receive a fair trial. Wahlberg, 296 N.W.2d at 420.
On this record, we do not perceive that this comment or its effect was so prejudicial or serious that defendant did not receive a fair trial. The prosecutor's entire closing argument encompassed 24 transcript pages and the comment noted by Williams was but a small part of the entire argument.
Next, Williams argues the trial court abused its discretion by ordering him to pay restitution in the amount of $6,442.25. He contends that because the PSI agent indicated that he had been unable to verify the property loss amounts, there was no factual basis on which to make the award.
Deciding whether a particular item of restitution fits within the statutory definition is a question of law and is fully reviewable by the appellate court. See In re Welfare of D.D.G., 532 N.W.2d 279, 280 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). However, the district court has wide discretion in ordering restitution. State v. O'Brien, 459 N.W.2d 131, 133 (Minn. App. 1990).
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.
Minn. Stat. § 611A.04, subd. 1(a) (1996). "Victim means a natural person who incurs loss or harm as a result of a crime." Minn. Stat. § 611A.01(b) (Supp. 1997). Furthermore, 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.
In determining whether to order restitution and the amount of restitution, district courts must consider
(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, subd. 1 (Supp. 1997). "Restitution may be aimed at either 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 aim is to rehabilitate, the amount should be set according to the defendant's ability to pay and need not fully compensate the victim. However, if the goal is to compensate the victim, the amount should be based on the injury to the victim. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).
In this instance, Williams was prosecuted for possession of the victim's stolen property and theft of the motor vehicle of the victim's father. The victim and her father complied with the statutory requirements for seeking restitution by submitting a sworn affidavit accompanied by a valuation list of the stolen property. The trial court concluded that payment of restitution was necessary and entered an order to that effect.
On review of the record, we conclude that the trial court did not abuse its discretion by ordering Williams to pay restitution. The jury found Williams guilty of possessing stolen property and of theft. The trial judge indicated that the victims should be compensated for their losses. Furthermore, Williams presented no evidence to show that he was not responsible for the losses of the victims. Because a determination of restitution is well within the province of the trial court, and because the victims provided ample evidence to show the amount of loss requested, we conclude there was no abuse of discretion as to the restitution award.
3. Geographical Limitations
Lastly, Williams argues the trial court abused its discretion by banishing him from the City of Crystal. He contends the banishment is not reasonably related to the purpose of the sentence. He claims that he has posed no threat to either the victim or her children. Furthermore, Williams contends that the banishment greatly exceeds the victim's request that he stay at least one mile from her home.
Trial courts have great discretion in the imposition of a sentence and this court cannot substitute its judgment for the trial court's in the imposition of a sentence. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989). Factors to be considered in setting geographical limitations are as follows:
(1) the purpose sought to be served by probation;
(2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and
(3) the legitimate needs of law enforcement.
Id. at 516.
At sentencing, the trial court noted that Williams should be banished from entering the city limits of Crystal because the victim expressed concern that her children be protected from Williams. The court also noted that Williams had not provided any reason as to why he would need to travel to Crystal for either medical or personal reasons. The court then concluded that because the location of the schools attended by the victim's children should not be divulged, it was necessary to banish Williams from the entire city.
In this case, the trial court provided numerous reasons for imposing geographical limitations that reflect an application of the Friberg factors. These findings are supported by the record. Given the nature of these crimes, it is important that the victims be protected. Moreover, the geographical limitations placed on Williams further the legitimate needs of law enforcement by precluding incidental contact with the victims. Lastly, the record indicates that Williams admitted that he had no need to visit the City of Crystal for either personal or medical reasons. We conclude, therefore, that the trial court did not abuse its discretion by requiring that Williams refrain from entering the city limits of Crystal for five years.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.