State of Minnesota, Respondent, vs. Connie L. Abbott, Appellant.

State of Minnesota, Respondent, vs. Connie L. Abbott, Appellant. A06-390, Court of Appeals Unpublished, April 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-390

 

State of Minnesota,

Respondent,

 

vs.

 

Connie L. Abbott,

Appellant.

 

Filed April 24, 2007

Affirmed

Kalitowski, Judge

 

Beltrami County District Court

File No. KX-05-771

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Randall R. Burg, Assistant County Attorney, Judicial Center Annex, Suite 40, 619 Beltrami Avenue Northwest, Bemidji, MN 56601-3066 (for respondent)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Connie L. Abbott challenges a restitution order imposed after she pleaded guilty to third-degree burglary, claiming that (1) the district court lacked a sufficient basis for its order; (2) the district court did not consider appellant's ability to pay; and (3) the restitution order includes amounts resulting from actions for which appellant was not convicted.  We affirm.

D E C I S I O N

            Appellant pleaded guilty to third-degree burglary of an unoccupied dwelling and associated buildings in which two victims stored personal property.  Appellant admits to making three trips to the property and removing a small pickup-truckload of items, but insists that other than the one item she pawned, she returned all of the victims' items and therefore owes no restitution.  Following a restitution hearing, the district court ordered appellant to pay $10,006 in restitution.  

            Minnesota statutes define the criteria and procedure for ordering restitution.  See Minn. Stat. §§ 611 A. 04, .045 (2004).  A crime victim has the right to receive restitution as part of the disposition of a criminal charge that results in a conviction, Minn. Stat. § 611 A. 04, subd. 1(a), and district courts have broad discretion in ordering restitution.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). 

            An appellant has a statutory right to challenge the restitution order, but must follow the statutorily-prescribed procedure, including submission of a memorandum challenging restitution and a detailed affidavit setting forth the bases and theories of the challenge.  Minn. Stat. § 611 A. 045, subd. 3.  We review the district court's restitution order for abuse of discretion.  Tenerelli, 598 N.W.2d at 672.

I.

            Appellant argues that the district court ordered restitution without a sufficient factual basis for the value of the items claimed.  But to challenge a restitution order, an appellant must submit "a detailed sworn affidavit . . . 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."  Minn. Stat. § 611 A. 045, subd. 3(a). 

            We addressed this statutory requirement in State v. Thole, 614 N.W.2d 231 (Minn. App. 2000).  In Thole, the appellant set forth an affidavit challenging the amount of restitution claimed for damage to the vehicle he had stolen.  Id. at 234.  Although the appellate court analyzed the value of the damage to the vehicle, it refused to address whether the costs for the victim's cell phone and purse were appropriate because appellant had not included these challenges in his affidavit.  Id. at 236.

            Here, appellant argues that one of the victims did not provide enough detail regarding items allegedly missing from the property or adequate justification for the assigned values.  She also argues that the other victim did not provide a reliable count of certain items and did not ascertain reliable values for the items listed.  But appellant's affidavit did not include a challenge to the value assigned to items listed on the request for restitution. 

            Because "the affidavit is both the sole vehicle by which the offender can meet the burden of pleading, and an essential element of the offender's case required to meet the burden of production," Thole, 614 N.W.2d at 235, we conclude that appellant's objections are not properly before us. 

II.

            Appellant argues that the district court failed to consider her ability to pay when determining appropriate restitution.  Pursuant to Minn. Stat. § 611 A. 045, subd. 1(a), the district court shall consider "the amount of economic loss sustained by the victim as a result of the offense" as well as "the income, resources, and obligations of the defendant" when determining an appropriate restitution award. 

            Although the district court did not specifically address appellant's ability to pay, appellant did not argue that she lacked the ability to pay restitution.  Because there is no evidence in the record that appellant raised ability to pay with the district court, we will not consider this issue for the first time on appeal.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).   

III.

            Appellant argues that restitution is improper here because the state failed to show by a preponderance of the evidence that the items claimed for restitution were actually taken by appellant.  We disagree.

            Even though a crime victim has the right to receive restitution as part of the disposition of a criminal charge that results in conviction, Minn. Stat. § 611 A. 04, subd. 1(a), a "victim" under the restitution statute must be a "direct victim of the crime," State v. Jones, 678 N.W.2d 1, 25 (Minn. 2004), 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).

            The victims admitted that the property had been broken into several times a year before appellant's break-ins occurred.  Although police reports had been made, no written list of stolen items was prepared.  Appellant argues that the victims cannot guarantee the contents of the buildings immediately prior to appellant's burglaries and cannot therefore prove exactly which items appellant took. 

            The district court, as fact-finder, heard testimony from the victims and appellant and weighed the testimony and the parties' credibility in making its determination.  The district court believed the state's witnesses and disbelieved appellant:

Defendant is not credible in her claim that she did not take the items and the state did produce sufficient evidence, despite cross examination, to prove the claim for restitution as listed on the certificate of restitution by a preponderance of the evidence.

 

We will not disturb such credibility judgments absent a clear abuse of discretion.  See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) ("The weight and credibility of the testimony of individual witnesses is for the [fact-finder] to determine.").  Given our standard of review, we conclude that the district court did not clearly err.

            Affirmed.