State of Minnesota, Respondent, vs. Darren Dean DeGrote, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-908

 

 

State of Minnesota,

Respondent,

 

vs.

 

Darren Dean DeGrote,

Appellant.

 

 

Filed March 23, 2004

Affirmed as modified

Halbrooks, Judge

 

 

Kandiyohi County District Court

File No. K8-02-432

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Boyd A. Beccue, Kandiyohi County Attorney, 415 6th Street S.W., P.O. Box 1126, Willmar, MN 56201 (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 Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Darren Dean DeGrote challenges the victim restitution ordered by the district court following his conviction of second-degree murder.  Appellant contends that the district court erred by ordering restitution for losses that were not directly caused by his criminal conduct and by ordering that he pay restitution to an individual not entitled to receive it by statute.  We affirm. 

FACTS

            In November 2002, appellant pleaded guilty to murdering his wife, Krista, the previous March in violation of Minn. Stat. § 609.19, subd. 1(1) (2000) (second-degree murder).  The district court sentenced appellant to 313 months in prison.  At the sentencing hearing, the parties agreed to forgo a restitution hearing and to address the issue of restitution by submitting affidavits and briefs to the court after sentencing. 

            Following sentencing, Krista's parents submitted affidavits and supporting documentation requesting restitution for (1) 40 weeks' wages lost by Krista's father, who, prevented by the murder from beginning a job in Iowa that was scheduled to start the day following the murder, instead took a lower-paying position closer to home; (2) funeral expenses; (3) medication (sedatives) not covered by insurance; (4) mileage expenses for travel related to Krista's death; (5) attorney fees arising from the custody dispute between Krista's parents and appellant's parents over the couple's two minor children; (6) daycare expenses for the children; and (7) counseling expenses. 

            Krista's twin sister and brother-in-law, Karla and Brian Larson, requested restitution for (1) various lost wages for work missed following the murder; (2) funeral expenses; (3) medication (tranquilizers) not covered by insurance; (4) mileage expenses for travel related to Krista's death; and (5) daycare expenses necessitated by the murder. 

            Appellant submitted an affidavit objecting to Krista's father's request for lost wages on the grounds that the request was "unreasonable [and] unsubstantiated" and that because the father never actually took the Iowa job, his claim was based on "speculation and conjecture" and could not fairly include a request for per diem living expenses that were never incurred.  Appellant further objected to any losses incurred in relation to the custody proceedings for his children on the ground that those proceedings did not result from the murder.  The district court disagreed with appellant's objections and ordered that appellant pay Krista's parents $36,683.60 in restitution. 

            Appellant's affidavit also objected to the restitution requested by Karla and Brian Larson on the grounds that (1) their requests for lost wages were insufficiently documented and (2) Brian Larson was not Krista's "next of kin" as required by the restitution statute.  The court ruled that neither Karla nor Brian Larson had sufficiently documented their lost wages, but concluded that Brian was Krista's "next of kin" under the statute and granted the Larsons' remaining requests for restitution totaling $647.  This appeal follows.

D E C I S I O N

Minn. Stat. § 611 A. 04, subd. 1(a) (2000), provides that "[a] victim of a crime has the right to receive restitution. . . .  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."  Minn. Stat. § 611A.01(b) (2000) defines "victim" as "a natural person who incurs loss or harm as a result of a crime" or, "[i]f the victim is a natural person and is deceased . . . the deceased's surviving spouse or next of kin."  In determining whether to order restitution and the amount of the award, a 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. § 611 A. 045, subd. 1(a)(1), (2) (2000).

"While the district court has broad discretion in granting restitution, the record must provide a factual basis for the amount awarded by showing the nature and amount of the losses with reasonable specificity."  State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000).  Whether a particular item of restitution fits within the statutory definition is a question of law, which we review de novo.  See In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

The restitution statute provides that once a restitution request is submitted to the district court,

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.  This burden of production must include a detailed sworn affidavit of the offender setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim or victims. . . .  A dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence.  The burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution is on the prosecution.

 

Minn. Stat. § 611 A. 045, subd. 3(a) (2000).  "Under the plain language of the statute, a valid dispute arises only after an offender meets the threshold burden of raising a specific objection by affidavit.  Until a dispute exists, the district court need not determine whether restitution is justified by a preponderance of the evidence . . . ."  Thole, 614 N.W.2d at 235. 

Appellant first argues that Krista's father, Gary Johnson, was not entitled to restitution for lost wages because he "chose" after her murder to accept a job close to home rather than beginning a contracted-for higher-paying job in Iowa and "[r]estitution is only proper where the victim's losses are directly caused by the conduct for which the defendant was convicted."  State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999) (quotation omitted).  In his affidavit opposing restitution, appellant asserts that there is no medical evidence indicating that Gary Johnson was unable to begin the job in Iowa.  But appellant cites no authority in support of his argument that Johnson's lost wages can only be restored if Krista's murder made it medically necessary for her father to remain in Minnesota or physically prevented him from moving to Iowa.  The record does, however, contain an affidavit from the chief operating officer of the company that employed Johnson, stating that after the murder, "it was clear that Gary Johnson could not leave the area because of [his] emotional state [and that of] his family and because of the ongoing murder investigation involving [appellant], who had by then been charged with murdering Gary's daughter."  This uncontroverted assertion establishes a sufficient causal connection between Krista's murder and her father's losses. 

Appellant also criticizes as "much too broad" the but-for test applied by the district court in determining the propriety of restitution.  But we have repeatedly applied that test in holding that restitution is appropriate where a victim would not have incurred certain expenses "but for appellant's unlawful [activity]."  State v. Maidi, 520 N.W.2d 414, 418 (Minn. App. 1994), aff'd 537 N.W.2d 280 (Minn. 1995); see also D.D.G., 532 N.W.2d at 282-83 (holding that a reward offer constitutes "out-of-pocket losses resulting from the crime" within the meaning of Minn. Stat. § 611 A. 04, subd 1(a), where "the reward offer would not have occurred but for appellant's conduct").  We conclude that the wage loss Johnson incurred by remaining in Minnesota "result[ed] from [appellant's] crime" within the meaning of Minn. Stat. § 611 A. 04, subd 1(a), and that restitution was therefore appropriate.

Appellant next argues that the award of wages was overly speculative because Johnson never actually started the job in Iowa and because it was "unknown" whether he would have kept the job for 40 weeks, a period of time appellant describes as "very arbitrary."  We disagree.  First, Johnson had already been hired for a specific position at a specific salary and had made final preparations to travel and live at the job location in Iowa; therefore, the job was not speculative, as appellant asserts.  Second, once Johnson requested restitution for 40 weeks' lost wages, appellant bore the burden to raise a specific objection to the request and demonstrate why it was unreasonable.  See Thole, 614 N.W.2d at 235-36.  Appellant did not object to the duration of the award before the district court and has, therefore, waived the issue on appeal.  See id. (stating that because restitution does not implicate the right to a fair trial, an appellate court considering a restitution challenge need not consider the plain-error exception to the general rule that issues not raised before the district court are waived on appeal).  Third, even if appellant were entitled to raise the issue before this court, the 40-week duration of the award from March 25 to December 30, 2002 is rational in that it roughly coincides with the period from the murder (March 24, 2002) to appellant's sentencing (January 17, 2003). 

Appellant also challenges the district court's inclusion of the per diem for the Iowa job in its calculation of the restitution amount on the ground that Johnson did not actually incur the per diem expense.  On this issue, we agree with appellant.  In his restitution affidavit, Johnson stated that by giving up the Iowa job, he lost additional wages plus per diem living expenses amounting to $280 each week.  Once appellant objected by affidavit to the unincurred per diem as an impermissible type of restitution, the state bore the burden of refuting this objection by a preponderance of the evidence.  See Minn. Stat. § 611 A. 045, subd. 3(a) (stating that "[a] dispute as to the proper amount or type of restitution must be resolved by the court by the preponderance of the evidence."). 

We conclude that the state has not met its burden on this issue.  Instead of demonstrating that the per diem is a proper type of restitution, the state argues that appellant was required to compare living expenses in Iowa and Minnesota in order to show that the amount of restitution requested by Johnson was inappropriate.  We find the state's argument misplaced in that it does not address appellant's fundamental objection to reimbursing Johnson for the per diem.  As an expense that was not in fact incurred, the per diem is different in kind from benefits that were not received such as lost wages and should not be considered an out-of-pocket loss within the meaning of Minn. Stat. § 611 A. 04, subd. 1(a).  We therefore hold that the district court erred in including the per diem in the restitution awarded and modify the award by deducting the per diem amount from the total award to the Johnsons.  Because the evidence was that Johnson would have been given $280 per week for living expenses for 40 weeks, the total amount of restitution awarded to the Johnsons must be reduced by $11,200. 

Appellant next argues that the district court erred by awarding Krista's parents restitution for legal services and psychological evaluations associated with the custody and visitation proceedings involving Krista's and appellant's children.  Appellant maintains that the custody litigation was unrelated to the murder and that because Krista's parents "chose to" dispute the children's custody, hire attorneys, and have psychological evaluations conducted, losses associated with those activities were not "directly caused" by the murder such that restitution was appropriate.  The district court concluded that the custody proceedings were "not wholly separate" from the murder, as appellant argued, and observed that "[appellant's] murder of his wife deprived his children of both their parents, thus necessitating a determination of where the children will reside and by whom they will be raised."  Because custody proceedings will address the children's best interests, those proceedings were proper here, and we conclude that restitution for losses associated with the custody and visitation proceedings is proper.

Appellant argues that the district court erred by awarding restitution to the Larsons for medication not covered by insurance, travel costs, and daycare.  Appellant contends [SEE Court Order for remainder of this opinion.]