A04-2068

State of Minnesota,

Respondent,

vs.

Daniel Dean Heintz,

Appellant.

Filed October 25, 2005

Affirmed in part, reversed in part, and remanded

Willis, Judge

Dakota County District Court

File No. K0-02-2140

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

James C. Backstrom, Dakota County Attorney, Nicole L. Fredricks, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

In this appeal from an order for restitution resulting from a conviction of third-degree assault, appellant argues that the district court abused its discretion by ordering appellant to pay restitution to the assault victim for lawn-service costs and to the insurance company that paid the victim’s workers’-compensation claim. We affirm in part, reverse in part, and remand.

FACTS

On May 16, 2002, while appellant Daniel Dean Heintz and the victim, T.M., were doing construction work on the roof of Northfield Hospital, an argument between the two escalated into a physical altercation. T.M. sustained serious injuries to his face and eye, requiring multiple surgeries and significant rehabilitation.

Heintz was charged with and pleaded guilty to third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2002). The district court issued an order for restitution requiring Heintz to pay T.M. $3,825 for lawn-service costs that T.M. incurred while he was injured and to pay Zurich North America Recovery Center (Zurich) $34,068.19 as reimbursement for its payment of T.M.’s workers’-compensation claim. Heintz challenged the order for restitution. After separate hearings on the two claims, the district court issued orders upholding the restitution awards. Heintz challenges on appeal the restitution awards.

D E C I S I O N

A crime victim has the right to restitution as part of the disposition of a criminal charge that results in conviction. Minn. Stat. § 611A.04, subd. 1(a) (2002). The district court has wide discretion to order reasonable restitution, but there must be a factual basis establishing the victim’s loss. State v. Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985), review denied (Minn. May 1, 1985). If an order for restitution is challenged, the state must establish the amount of the loss sustained by the victim by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3(a) (2002).

Heintz first challenges the evidentiary basis of the restitution order requiring him to pay T.M. $3,825 for lawn-service expenses. He argues that the state did not submit sufficient evidence to establish the reasonableness of T.M.’s claim or to show a causal connection between T.M.’s injuries and his inability to maintain his lawn.

At one of the restitution hearings, the state submitted a $3,825 lawn-service invoice received by T.M., which, the state represented, is the result of a $325 weekly lawn-service charge that T.M. incurred during the three-month period after the assault. For reasons that do not appear in the record, T.M. left the hearing before testifying. The hearing continued without T.M., and the state argued that T.M. owns a parcel of land with six acres of lawn and that the injuries he received from the assault made it impossible for him to maintain his lawn for three months.

A district court may impose sanctions for “any out-of-pocket losses resulting from the crime.” Minn. Stat. § 611A.04, subd. 1(a). But a victim’s losses must be directly caused by a defendant’s criminal conduct. State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999). Whether the district court here abused its discretion depends on whether there is evidence that the lawn-care expenses were directly caused by the assault. Minnesota courts apply a but-for analysis when considering whether a victim’s economic harm was directly caused by a defendant’s criminal conduct. See, e.g., In re Welfare of D.D.G., 532 N.W.2d 279, 282–83 (Minn. App. 1995) (upholding restitution order based, in part, on $500 reward paid by school to a person who aided school’s investigation of a threat), review denied (Minn. Aug. 30, 1995); State v. O’Brien, 459 N.W.2d 131, 135–36 (Minn. App. 1990) (upholding restitution order for various wedding costs including shoes, clothing, and jewelry repairs imposed on defendant who perjured himself when he indicated under oath on his marriage-license application that his previous marriage had been annulled).

Here, but for the assault, T.M. might have been able to maintain his lawn and avoid the $3,825 lawn-service expense. The state argued at the restitution hearing that T.M.’s injuries made it impossible for him to maintain his lawn. But the arguments of counsel are not evidence. State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004). The invoice establishes the lawn-service expense, but T.M.’s request for restitution simply lists the expense as the “cost of property mowing.” There is no record evidence establishing how the assault directly caused T.M. to incur the lawn-service expense. The district court determined that “[i]t is reasonable to assume that [T.M.] was unable to mow the lawn” and that the “expenses [are] reasonable by a preponderance of the evidence,” but it made no findings concerning the relationship between the assault and the expense. We therefore conclude that the district court abused its discretion by ordering restitution for the lawn-service expense. We reverse the restitution award to T.M. and remand for reconsideration of his claim.

Heintz also argues that the district court abused its discretion by ordering him to pay Zurich $34,068.19 as restitution for its payment of T.M.’s workers’-compensation claim. Heintz does not dispute the amount or nature of the restitution, and he concedes that Zurich is entitled to restitution. See State v. Jola, 409 N.W.2d 17, 19 (Minn. App. 1987) (upholding a restitution award to an insurance company that reimbursed a victim for losses). Heintz instead argues that he is indigent and cannot “pay such a high restitution award” and that the district court “did not give [Heintz’s] indigence due consideration.”

When determining the amount of restitution, the court shall consider “the amount of economic loss sustained by the victim as a result of the offense” and “the income, resources, and obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a) (2002). But the district court has “wide flexibility to structure restitution orders that take into account a defendant’s ability to pay . . . a reduced monthly payment.” State v. Maidi, 537 N.W.2d 280, 285–86 (Minn. 1995) (affirming $147,251.27 restitution order imposed on a defendant who earned $6.50 per hour because the district court considered the defendant’s resources when it determined the restitution payment schedule). Here, the district court noted that Heintz “is physically able and otherwise eligible to work while in prison, and is likely to remain or become employed once his sentence is completed.” Although the record shows that Heintz’s 2003 income was below the federal poverty level, the district court considered Heintz’s financial circumstances and contemplated a structured “regular payment plan.” Because the district court properly considered Heintz’s financial circumstances, we conclude that it did not abuse its discretion by ordering Heintz to pay Zurich $34,068.19 in restitution.

Affirmed in part, reversed in part, and remanded.