STATE оf Minnesota, Respondent, v. Dana Michael TERPSTRA, Appellant.
No. C2-94-2018.
Supreme Court of Minnesota.
April 12, 1996.
546 N.W.2d 280
Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey III, Attorney General, St. Paul; Linda Freyer, Asst. County Attorney, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
OPINION
KEITH, Chief Justice.
Appellant Dana Michael Terpstra requests review of a court of appeals decision affirming the district court‘s order of full restitution following Terpstra‘s conviction of three counts of theft by swindle. Terpstra argues that the district court exceeded its power to award restitution when it ordered him to repay monetary amounts to his victims in excess of the statutory parameters of his offenses. Because the district court applies a lesser standard of proof in determining restitution amounts than it does in adjudicating guilt, we reject Terpstra‘s contentions and affirm the court of appeals decision.
The facts of this case are not disputed by the parties on appeal. During the time period in question, Dana Michael Terpstra was self-employed as a building contractor. He entered into written contracts with four different homeowners in Hennepin County to remodel their homes. After several complaints from the homeowners regarding Terpstra‘s performance, the Minnetonka Police Department investigated his business activities. The police discovered that before beginning work on the remodeling projects, Terpstra would rоutinely request large downpayments. Two of the alleged victims, Susan Gilmore and Thomas McEnery, told the investigating detective that after they paid the downpayment, Terpstra never performed any work in their homes. The other two victims, Jason Quam and Ronald Haskvitz, stated that Terpstra only performed a portion of the requested work. In addition
The criminal complaint filed against Terpstra charged him with four counts of theft by swindle.
At sentencing on June 29, 1994, the three remaining victims requested restitution in the amounts alleged in the criminal complaint and verified by a presentence investigation. These sums were also documented at trial through cancelled checks and the witnesses’ testimony. In reference to restitution, Terpstra‘s attorney voiced his objection to the district court‘s requirement that Terpstra repay the entire amount of $45,341 lost by the three victims. While Terpstra did not contest that the evidence at trial supported this aggregated amount of damages, his attorney argued that the jury had convicted Tеrpstra on two counts of theft of a lesser amount than charged in the complaint, and therefore the court “lacks jurisdiction to sentence above the statutory amount” of $2,500. The district court rejected this argument, noting that restitution “is not limited to the amounts charged in the complaint or admitted in the plea. And in this case, as to the jury‘s finding of guilty, the prоof is different. * * * [P]roof beyond a reasonable doubt is required for conviction, whereas the Court need only find that the evidence sustains a loss, economic loss to the victim, by a fair preponderance of the evidence.” The court sentenced Terpstra to serve fifteen months in prison, but stayed execution of that sentence for 10 years on the condition that Terpstra repay the victims a total of $45,341 in restitution and spend one year in the Hennepin County Workhouse without Huber privileges as a condition of his 10-year probation term.
The court of appeals affirmed the district court‘s restitution order. State v. Terpstra, 534 N.W.2d 554 (Minn.App.1995). The court found that the district judge had not abused his discretion by awarding the full amount of restitution to the victims because Terpstra did not dispute the accuracy of the $45,341 figure, and the prosecution had met its burden of proving the amount of loss by a preponderance of the evidence. See
This case, however, deals with restitution and the burden of proof for restitution is a preponderance of the evidence, not the beyond a reasonable doubt standard necessary for a conviction. The district court, in imposing Terpstra‘s sentence, did not follow the determination of the jury. The purposes of restitution, however, are not limited to punishing the offender. Restitution is also an attempt to compensate victims for their losses.
A crime victim “has the right to receive restitution as part of the disposition of a criminal charge * * * if the offender is convicted. * * * A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime.”
Terpstra argues that despite the plain language of these statutes, the district court erred when it ordered him to repay the three victims the full amount of the losses established at trial. He asserts that the jury‘s verdict of not guilty of theft by swindle in excess of $2,500 on two counts restricts the district court during the sentencing phase and prohibits the court from ordering restitution beyond $2,500. The State responds that the determination of guilt or innocence at trial is entirely separate from the determination of the restitution to be ordered by the district court judge. While the jury must find а defendant guilty of a crime beyond a reasonable doubt, section 611A.045 clearly mandates that the district court determine the appropriate amount of restitution by the preponderance of the evidence. Therefore, it is entirely possible that while the jury did not find beyond a reasonable doubt that Terpstra had misappropriated more than $2,500 from two of the victims, the district court judge concluded that the full amount alleged by the victims was established at trial to the satisfaction of the civil standard.
This specific issue is one of first impression in Minnesota. Other states have addressed the question raised by Terpstra, as will be discussed below. The closest analogy in Minnesota is perhaps State v. Olson, 379 N.W.2d 524 (Minn.1986). In Olson, a jury convicted the defendant of receiving stolen property valued at $1,000 or more in violation of
On appeal, this court affirmed the district court‘s sentence, reasoning that even though the district court decided that the property‘s value for sentencing purposes was at least $2,500, Olson still stood convicted of receiving stolen property valued at $1,000 or more. Furthermore, there was no dispute that the actual value of the stolen car was over $2,500; the car‘s owner testified at trial that its book value was $5,500 and Olson never contested
Our reasoning in Olson is applicable to this case. We concur with the Statе‘s argument that at Terpstra‘s sentencing hearing, the district court correctly applied the preponderance of the evidence standard in determining restitution, and that the court was not bound by the jury‘s verdict. The State asserts that there is no need to look beyond the unambiguous language of section 611A.045, subd. 3: all disputes as to the correct amоunt of restitution are to be resolved by the preponderance of the evidence. This is the same standard that would be applied if Terpstra‘s victims were to pursue a separate civil action against Terpstra. In fact, the order of restitution by the trial court can be “enforced by any person named in the order to receivе the restitution in the same manner as a judgment in a civil action.”
Restitution is primarily intended to compensate a crime victim for his or her loss by restoring the victim to his or her original financial condition. State v. Maidi, 537 N.W.2d 280, 286 (Minn.1995); State v. Fader, 358 N.W.2d 42, 48 (Minn.1984). By allowing the district judge to resolve the restitution question, the crime victim is freed from the burden of instituting a civil action based upon the same conduct. In this case, the State did not meet its burden of proving a theft by Terpstra of more than $2,500 beyond a reasonable doubt. But this fact does not preclude the district judge from finding that Terpstra misappropriated $45,341 from the three victims under a preponderance оf the evidence standard: the same result could be reached by another judge or jury if Terpstra‘s victims had sued him in a civil action.
Finally, although Minnesota courts have not yet addressed this issue, several other states have held that a guilty verdict within specific monetary parameters in a criminal case does not control the total amount of restitution that can be ordered for that offense. For example, the Hawaii Supreme Court has held that the amount of restitution ordered in a criminal case should be the actual loss or damage suffered by the victim, and not the statutory limit of the offense of conviction. State v. Johnson, 68 Haw. 292, 711 P.2d 1295, 1298 (1985). In Johnson the defendant, a travel agent, was indicted for first-degree theft for issuing airline tickets without collecting the fares. Id. 711 P.2d at 1296-97. At her jury trial, Johnson was convicted of the lesser included offense of third-degree theft of property not exceeding $50. Despite the jury‘s findings, the trial court ordered Johnson to repay the travel agency $5,406.33, the total amount she owed. Id. The supreme court affirmed the restitution order, noting that there was no disрute over the actual loss to the travel agency. The court further held that requiring Johnson to repay the full amount owed to her former employer would follow the legislative intent of the restitution statutes: “to have the convicted person repay society and his victims for his criminal acts whenever deemed appropriate by the sеntencing court.” Id. at 1299.
Similarly, in Fee v. State, the Court of Appeals of Alaska held that a defendant must pay restitution of $871.20, even though he pleaded guilty to third-degree criminal mischief which requires damage to property valued between $50 and $500. 656 P.2d 1202, 1204 (Alaska.Ct.App.1982). Fee argued before the court that his guilty plea to the lesser charge “collaterally estops the state from arguing that the actual loss exceeded $500.” Wе disagree. Id. The court explained that while Fee‘s guilty plea placed a ceiling on the jail sentence and fines that could be imposed, the trial court could find that the evidence supported a restitution award based on the actual loss of the victim, which was stipulated to be $871.20. Id. at
In light of these decisions by other jurisdictions, the governing restitution statutes, the legislative purposes of restitution in general, and the substantial evidence аt trial of the actual amount stolen from the victims, we affirm the district court‘s restitution order requiring Terpstra to pay a total of $45,341.
Affirmed.
TOMLJANOVICH, Justice (dissenting).
Because I disagree with the majority that restitution may be ordered in amounts in excess of those the jury found to have been stolen, I respectfully dissent.
Restitution is part of the sentence which may be imposed upon cоnviction of a crime.
Upon conviction of a felony and compliance with the other provisions of this chapter the court, if it imposes sentence, may sentence the defendant to the extent authorized by law as follows:
* * * *
(5) To payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both;
Similаrly, restitution is authorized as a sentence for a misdemeanor:
Upon conviction of a misdemeanor or gross misdemeanor the court, if sentence is imposed, may, to the extent authorized by law, sentence the defendant:
* * * *
(4) To payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both;
Thus it is clear that restitution is part of a criminal sentence. A sentence is defined as “[t]he judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted.” Black‘s Law Dictionary 1362 (6th ed. 1990). It seems elementary that punishment may only be ordered for a crime of which the defеndant is convicted.
The restitution statute is broad and recognizes that a victim of a crime should not be twice victimized; first, when the crime is initially committed, and again when they try to recover for economic losses suffered. But the statute limits those amounts to those losses sustained “as a result of the offense.”
I acknowledge that the burden of proof in a civil trial is different from that in a criminal trial. Putting aside thе right to a jury trial, to permit the trial judge to conduct his own civil trial within a criminal trial is inappropriate.
If a defendant is tried for murder and found not guilty of the murder, but guilty of some minor offense, it would be inconceivable to permit the judge to conclude the murder had been proven to her satisfaction and order wrongful death restitution. Today‘s decision permits such a result.
I join in the dissent of Justice Tomljanovich.