State of Minnesota, Respondent, vs. Sharon Denice Smidstra, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-2004

 

State of Minnesota,
Respondent,
 
vs.
 
Sharon Denice Smidstra,
Appellant.

 

Filed August 29, 2000

Affirmed

Peterson, Judge

 

Rock County District Court

File No. K898161

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Donald Klosterbuer, Rock County Attorney, P.O. Box 538, Luverne, MN 56156 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Sharon Denice Smidstra challenges the sufficiency of the evidence supporting her conviction of one count of first-degree criminal sexual conduct, two counts of third-degree criminal sexual conduct, five counts of contributing to the delinquency of a minor, and seven counts of furnishing tobacco to a minor.  Smidstra also argues that the district court abused its discretion by ordering restitution.  We affirm.

FACTS

            From July 1997 through September 8, 1998, appellant Sharon Smidstra was employed as a cook/youth supervisor at Pinnacle Programs, a nonsecure residential facility for adolescents.  She was terminated from her job after allegations surfaced that she had had sexual contacts with several adolescent boys beginning in June 1998, that she had provided marijuana and cigarettes to several residents, had exposed herself to several residents, and that she had agreed to assist several residents in running away from Pinnacle.  Smidstra was charged with (1) one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b) (1996); (2) six counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subds. 1(b), (c) (1996); (3) two counts of indecent exposure in violation of Minn. Stat. § 617.23(b)(1) (1996); (4) seven counts of contributing to the delinquency of a minor (providing marijuana) in violation of Minn. Stat. § 260.315 (1996); and (5) eight counts of furnishing tobacco to a minor in violation of Minn. Stat. § 609.685, subd. 2 (1996). 

            The case was tried to a jury.  Nine current or former Pinnacle residents and several staff members testified.  The residents who testified were between 13 and 17 years old at the time of the offenses.  Much of the testimony involved allegations of sexual contact between Smidstra and D.V., a boy who was 14 years old at the time of the offenses.  Smidstra's contacts with D.V. were the basis of her criminal-sexual-conduct convictions.  D.V. testified that he engaged in both oral sex and vaginal intercourse with Smidstra at least seven or eight times between June and August 1998, frequently in the cooler or storage room off the kitchen.  Five residents testified that they served as a look-out when Smidstra and D.V. went into the cooler or storage area by themselves for five to 30 minutes.  Four residents testified that they saw Smidstra and D.V. kissing.  Three residents testified that they saw Smidstra grab D.V.'s crotch.  Two residents testified that they saw Smidstra and D.V. having sexual intercourse.  One staff person testified that she saw Smidstra engage in inappropriate touching of students, including full backrubs, hugging and touching on the lower torso.  Two residents testified that Smidstra or D.V. asked them not to report them to other staff.  One resident testified that D.V. told him about the first sexual encounter shortly after it happened, and several other residents testified that they discussed the sexual activities with D.V. at various times.

Seven residents, including D.V., also testified that Smidstra provided them with cigarettes and marijuana on several occasions and would smoke with them in the garden behind the kitchen.  The residents corroborated each other's testimony, indicating who had been present when they smoked cigarettes and marijuana with Smidstra.

At trial, Smidstra denied all allegations except providing cigarettes to four residents.  She claimed that the constant staff supervision and building layout made it impossible for her to engage in the alleged activities, and that the residents fabricated stories because they were angry with her and hoped their reports of her misconduct would result in their own release from Pinnacle.  Two defense witnesses testified that Smidstra has a reputation for truthfulness.

Smidstra was convicted of the sexual conduct charges involving D.V., and multiple charges of contributing to the delinquency of a minor and furnishing tobacco to a minor.  She was sentenced to 86 months for first-degree criminal sexual conduct, the presumptive guidelines sentence.  She was also ordered to pay $5,551 in restitution to the parents of one resident to compensate them for their costs of sending their son to Pinnacle.

D E C I S I O N A.         Sufficiency of Evidence

Smidstra argues that her case is one of those rare circumstances that warrant reversal because a careful review of the record will reveal such grave doubts about her guilt that the jury verdict should be overturned in the interest of justice.

Reversal of a conviction on sufficiency of the evidence is rare, and will only occur where the reviewing court has "‘grave doubt as to defendant's guilt,'" and "reversal is ‘in the interest of justice.'"  State v. Roberts, 350 N.W. 2d  448, 451 (Minn. App. 1984) (quoting State v. Housley, 322 N.W. 2d  746, 751 (Minn. 1982)).  A reviewing court must view the record in the light most favorable to the conviction.  State v. Webb, 440 N.W. 2d  426, 430 (Minn. 1989).  We must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary."  State v. Moore, 438 N.W. 2d  101, 108 (Minn. 1989) (citation omitted).  A verdict will not be disturbed if the jury could have reasonably concluded that the defendant was guilty of the offenses charged while giving due consideration to the presumption of innocence and the requirement of overcoming it by proof beyond a reasonable doubt.  State v. Alton, 432 N.W. 2d  754, 756 (Minn. 1988).

In our review of the record, we find nothing that raises grave doubts about Smidstra's guilt that compels a reversal in the interest of justice.   Smidstra's challenge rests primarily on witness credibility.  "[W]eighing the credibility of witnesses is the exclusive function of the jury."  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (citation omitted).  The jury heard testimony from D.V. and from two other residents who said they saw Smidstra and D.V. engaged in sexual intercourse.  The jury also heard three other residents testify that they saw Smidstra and D.V. kissing, or sexually touching, and five residents admitted they participated in covering up the encounters between Smidstra and D.V.  Seven residents testified that Smidstra supplied them with cigarettes and marijuana and smoked with them.  They supplied details about the physical descriptions of the cigarettes, the bags holding marijuana, the pipe used for smoking, the location of the smoking, and what they did to hide the odor.  

"Credibility determinations of conflicting oral testimony are for the finder of fact and rarely disturbed on appeal."  State v. Norregaard, 380 N.W. 2d  549, 552 (Minn. App.) (citation omitted), aff'd as modified on other grounds, 384 N.W.2d 449 (Minn. 1986).   Viewing the record in the light most favorable to the convictions, and assuming that the jury believed the state's witnesses and disbelieved contrary evidence, the jury could have reasonably concluded that Smidstra was guilty of the offenses charged.

B.         Restitution

Smidstra contends that the district court erred when it ordered her to pay restitution of $5,551 to the parents of A.R., one of the victims.  Citing State v. Jola, 409 N.W.2d 17, 19 (Minn. App. 1987), Smidstra argues that the state must prove that her conduct directly caused A.R.'s  loss.  She contends that because A.R. was sent to Pinnacle as a result of his own conduct, her conduct did not directly cause any monetary loss to A.R. or his parents.  Smidstra misstates the holding of Jola.  In Jola, the defendants pleaded guilty to charges of receiving a stolen truck, and their sentences included restitution for the value of the truck.  Id. at 18-19.  They argued that because they did not steal the truck and only received it, they "should not be required to pay restitution because restitution should be imposed only for losses caused by the offense for which a defendant was convicted."  Id. at 19.  This court rejected this argument and stated "‘[W]here the victim's losses are directly caused by appellant's conduct for which he was convicted there is nothing improper in ordering restitution.'"  Id. (quoting State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986)) (alteration in original).

This court did not hold in Jola or in Olson that restitution may be ordered only when the prosecution proves that a defendant's conduct directly caused a victim's loss.  In Jola and Olson, this court said no more than that restitution is proper when a defendant's conduct directly causes a victim's loss.

Minn. Stat. § 611 A. 04, subd. 1(a) (1996), provides:

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, replacement of wages and services, * * * and funeral expenses. 

 

The supreme court has

recognized that this broad language gives the trial court significant discretion to award restitution for a victim's expenses.  Thus, we "may not construe the statute to exempt certain types of expenses, even though we may consider these expenses inappropriate.  To do so * * * would run contrary to the clear language of * * * section[] 611 A. 04 * * *, delegating the decision to the sentencing court."

 

State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999) (citation omitted) (quoting State v. Maidi, 537 N.W.2d 280, 284 (Minn. 1995)) (omissions in original), cert. denied, 120 S. Ct. 1183 (2000).

A.R. sought reimbursement for the cost of his stay at Pinnacle, claiming that Smidstra directly interfered with his efforts to become drug-free by providing him with marijuana and cigarettes.  As a result, when he left Pinnacle he was not sober, he continued to abuse drugs, and he ultimately had to attend another chemical dependency treatment program.  In a statement read by the prosecutor at the sentencing hearing, A.R. stated:

I feel Ms. Smidstra directly impacted my rehabilitation.  She showed me that I didn't have to change.  When I finished my sentence in February I was not rehabilitated or a sober person. * * * My parents thought Pinnacle was a safe environment where I could learn to control myself and give up drugs.  Ms. Smidstra sabotaged that.

 

"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. Terpstra, 546 N.W.2d 280, 283 (Minn. 1996) (citations omitted); see also Maidi, 537 N.W.2d at 286 ("restitution statute was primarily intended to compensate victims").

A.R. was sent to Pinnacle before he even met Smidstra, and his treatment might have failed even if he had never met her.  A treatment program cannot guarantee sobriety upon completion.  But A.R.'s chances of succeeding in treatment were significantly reduced when Smidstra gave him controlled substances.  By supplying illegal substances to A.R., Smidstra directly undermined the treatment sought and paid for by A.R.'s parents.  A.R.'s parents paid for a properly administered treatment program.  Because of Smidstra's conduct, that is not what they received.  Compensating A.R.'s parents for the cost of the Pinnacle program restores them to their financial condition before A.R. entered treatment.  See State v. O'Brien, 459 N.W.2d 131, 135 (Minn. App. 1990) (interpreting "victims" in restitution statute to include parents who incurred economic harm as result of offender's crime).  The trial court did not abuse its discretion when it ordered restitution for the cost of A.R.'s treatment .

            Affirmed.