State of Minnesota v. Wayne Brian Christensen ( 2014 )


Menu:
  •                          This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2012).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A13-1652
    State of Minnesota,
    Respondent,
    vs.
    Wayne Brian Christensen,
    Appellant.
    Filed July 21, 2014
    Affirmed in part, reversed in part, and remanded
    Hudson, Judge
    Morrison County District Court
    File No. 49-CR-12-808
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Jr., Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and
    Smith, Judge.
    UNPUBLISHED OPINION
    HUDSON, Judge
    On appeal from his conviction of second-degree assault, appellant argues that the
    district court erred by awarding the victim restitution. Because we conclude that two of
    the three items of restitution were properly awarded, we affirm in part, reverse in part,
    and remand.
    FACTS
    Appellant Wayne Brian Christensen was arrested following an incident in his
    neighborhood when he threatened to kill children and pointed his loaded gun at a
    neighbor as she was driving home and entering her house. He was charged with second-
    degree assault with a dangerous weapon for pointing the gun at his neighbor and making
    terroristic threats.   He entered a Norgaard plea to second-degree assault, and the
    terroristic-threats charge was dismissed.
    Shortly after the plea, the neighbor filed an affidavit of restitution with supporting
    documentation. The affidavit requested $318.55 for missed work, $760 for a self-defense
    class, and $10,400 for loss in home value. Appellant did not respond to this affidavit
    until the day of sentencing nearly seven months later.          At the sentencing hearing,
    appellant’s attorney orally objected to restitution for the self-defense class and the loss in
    home value. The district court awarded restitution of $3,078.55, including the work
    costs, self-defense class, and $2,000 “for loss of [the neighbor’s] home and loss of her
    safety and security in her home and possible loss of value to her home . . . if she decides
    to sell it.” This appeal follows.
    DECISION
    An award of restitution is reviewed for an abuse of discretion. State v. Tenerelli,
    
    598 N.W.2d 668
    , 671 (Minn. 1999). But deciding whether a particular item falls within
    the statutory definition of restitution is a question of law reviewed de novo. State v.
    2
    Thole, 
    614 N.W.2d 231
    , 234 (Minn. App. 2000). Appellant argues that there was not
    sufficient documentation to support the award of restitution and that any restitution
    related to the value of the neighbor’s home was too speculative. The state does not
    address appellant’s arguments, but rather argues that appellant waived the challenge to
    restitution by failing to follow the proper statutory procedures at the district court.
    Minn. Stat. § 611A.045 (2010) outlines the procedures by which an offender may
    challenge restitution. That section provides that an offender may challenge restitution by
    requesting a hearing within “30 days of receiving written notification of the amount of
    restitution requested, or within 30 days of sentencing, whichever is later[;] . . . [t]he
    hearing request must be made in writing and filed with the court administrator.” 
    Id., subd. 3(b)
    (emphasis added). At the subsequent hearing:
    the offender shall have the burden to produce evidence if the
    offender intends to challenge the amount of restitution or
    specific items of restitution or their dollar amounts. The
    burden of production must include a detailed sworn affidavit
    of the offender setting forth all challenges to the restitution
    . . . and specifying all reasons justifying dollar amounts of
    restitution which differ from the amounts requested by the
    victim or victims.
    
    Id., subd. 3(a)
    (emphasis added). Here, appellant’s counsel made an oral objection to the
    restitution at the sentencing hearing, but never made a written request for a hearing and
    never submitted an affidavit detailing the specific challenges to the restitution amounts.
    When an offender disputes the amount or type of restitution, the procedural
    requirements of Minn. Stat. § 611A.045, subd. 3(a), must be met. State v. Gaiovnik, 
    794 N.W.2d 643
    , 647 (Minn. 2011). Appellant challenged the self-defense class and loss of
    3
    home value because they were not “appropriate items for restitution”; thus, he was
    required to follow the statutory requirements. “[A] valid [restitution] dispute arises only
    after an offender meets the threshold burden of raising a specific objection by affidavit.”
    
    Thole, 614 N.W.2d at 235
    . Because appellant did not follow the proper procedures for
    objecting to the restitution award at the district court, his argument on appeal is waived.
    See Mason v. State, 
    652 N.W.2d 269
    , 273 (Minn. App. 2002), review denied (Minn.
    Dec. 30, 2002) (concluding that appellant’s postconviction petition disputing a restitution
    award was untimely because it did not comport with the 30-day statutory requirement for
    challenging an award); 
    Thole, 614 N.W.2d at 235
    (declining to address objections to
    restitution award where appellant had not complied with the statutory requirements at the
    district court).
    Although we strongly caution parties to comply with the statutory requirements
    for challenging restitution, this court may address any argument in the interests of justice,
    and we choose to do so here. See Minn. R. Crim. P. 28.02, subd. 11 (stating that this court
    “may review any order or ruling of the district court . . . as the interests of justice may
    require.”). The district court’s award of $2,000 “for loss of [the neighbor’s] home and
    loss of her safety and security in her home and possible loss of value to her home . . . if
    she decides to sell it” was in error. “[R]estitution is limited to recovery of economic
    damages sustained by the victim.” State v. Colsch, 
    579 N.W.2d 482
    , 484 (Minn. App.
    1998); see also Minn. Stat. § 611A.045, subd. 1(a)(1). “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, [and] replacement of wages and services.”            Minn. Stat.
    4
    § 611A.04, subd. 1(a) (2010). Appellant does not dispute the award for missed work. In
    addition, the award for the neighbor’s self-defense class was documented, and the district
    court likened it to therapy necessary for the neighbor to recover mentally from the
    assault. Accordingly, those two awards were proper. But the district court’s award of
    $2,000 for possible loss of value to the neighbor’s home was not proper because it was
    speculative and did not represent an actual economic loss. If the neighbor sells her house
    in the future, and can document a reduced sale price based on appellant’s actions, the
    restitution award can be amended at the time of the actual economic loss. 
    Colsch, 579 N.W.2d at 485
    ; Minn. Stat. § 611A.04, subd. 1(b) (2010). Accordingly, we affirm the
    district court’s award of restitution for the self-defense class and missed work, but reverse
    the award for lost home value and remand for the district court to issue an amended order
    consistent with this opinion.
    Affirmed in part, reversed in part, and remanded.
    5