State v. Nelson

796 N.W.2d 343, 2011 Minn. App. LEXIS 27, 2011 WL 978937
CourtSupreme Court of Minnesota
DecidedMarch 22, 2011
DocketNo. A10-1382
StatusPublished
Cited by12 cases

This text of 796 N.W.2d 343 (State v. Nelson) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nelson, 796 N.W.2d 343, 2011 Minn. App. LEXIS 27, 2011 WL 978937 (Mich. 2011).

Opinion

OPINION

KLAPHAKE, Judge.

Appellant Heather Marie Nelson challenges the district court’s order requiring her to pay $19,412 as restitution for her misdemeanor theft of tanning services from a Mankato tanning salon. We affirm the district court’s decision to award restitution but modify that award by reducing it to $156, the amount of claimed loss that was caused by appellant’s criminal conduct.

FACTS

On August 20, 2006, C.F., the owner of the tanning salon, discovered that one of her employees was tanning for free after her work shifts ended. The tanning salon used a computer software program to record client tanning sessions and to track cash flow related to client accounts. The employee, Leita Ann Baker, had not recorded her after-hours tanning sessions on the computer program. Baker was immediately fired by C.F.

After conducting an extensive investigation of employee time records and tanning logs, C.F. discovered that three other employees, including appellant, Sarah Maree Pierce, and Jessica Marie Lynn, had also been taking free tans and giving them to others. In order to accomplish this, they created fictitious tanning accounts, added tanning packages or other “add-ons” to those accounts or existing accounts and later deleted the accounts or the add-ons, manipulated the computer software to award free tans, rang up tans at no charge, and engaged in other similar conduct. According to C.F., she lost $7,700 in revenue as a result of the employees’ conduct.

On September 20, 2006, C.F. fired appellant. Nearly three years later, on September 2, 2009, appellant was charged with one count of felony theft-by-swindle under Minn.Stat. § 609.52, subd. 2(4) (2006) (value exceeding $2,500) for her conduct occurring between February 4, 2006, and August 4, 2006, and one count of misdemeanor theft under Minn.Stat. § 609.52, subd. 2(4) (2006) (value not to exceed $250) for her conduct occurring between August 5, 2006, and September 30, 2006. The [346]*346state alleged that appellant stole services worth $2,873 between February 5, 2006, and August 4, 2006, and stole services worth $156 between August 5, 2006, and the end of September 2006.

In December 2009, appellant moved to dismiss the felony theft by swindle count because the complaint was not filed within three years of commission of the offense, as required by MinmStat. § 628.26(k) (2008) (requiring felony theft complaint involving amount less than $35,000 to be filed in district court within three years after commission of the offense). The district court dismissed the felony count against appellant on December 22, 2010, and dismissed all criminal charges against appellant’s three former coworkers for the same reason.

Thereafter, appellant pleaded guilty to the remaining misdemeanor theft count. Her plea agreement states that between August 5, 2006, and September 30, 2006, she “tanned at the business while still on the clock.” Among other things, she agreed “to pay restitution” and to allow the court to “determine the amount of restitution.” In accordance with the plea agreement, the district court stayed adjudication for two years and reserved the issue of restitution.

C.F. submitted an affidavit of restitution that stated a total net loss of $24,412, which included $690 for new computer software, $700 for a new computer hard drive and tower, $7,668 for the value of stolen tanning services, $2,604 for employee hours to reconstruct and verify the thefts by cross-referencing daily reports to customer accounts and tanning packages, and $12,750 in “personal hours” related to the thefts. Appellant submitted an affidavit in opposition to C.F.’s claim, arguing that respondent had offered evidence that during the viable charging period, she had stolen only one tan, on September 16, 2009, valued at $26.

C.F. testified at the restitution hearing. She stated that although the tanning salon’s computer was not broken or damaged by appellant’s conduct, she needed to replace the computer and software to regain control of the business. She also explained how she documented the amounts of the thefts and the time required to verify those amounts. Appellant did not testify at the hearing, nor did she offer evidence on her ability to pay restitution.

The district court ordered appellant to pay restitution of $19,412, which was the total amount claimed by C.F., less $5,000 she received in insurance proceeds. The district court stated that appellant “and codefendants should be jointly and severally liable for restitution to [C.F.] ” The district court’s order did not include any findings on appellant’s ability to pay restitution.

This court granted appellant’s petition for discretionary review.

ISSUE

Did the district court abuse its discretion by ordering appellant to pay restitution of $19,412 for the misdemeanor theft offense to which she pleaded guilty?

ANALYSIS

“The primary purpose of the [restitution] statute is to restore crime victims to the same financial position they were in before the crime.” State v. Palubicki 727 N.W.2d 662, 666 (Minn.2007). A district court may not use restitution as a form of punitive damages. State v. Pflepsen, 590 N.W.2d 759, 769 (Minn.1999) (stating “Restitution is intended to be compensatory, not punitive.”). “A district court’s order for restitution is reviewed under an abuse of discretion standard. But determining whether an item meets [347]*347the statutory requirements for restitution is a question of law that is fully reviewable by the appellate court.” State v. Ramsay, 789 N.W.2d 513, 517 (Minn.App.2010) (quotation omitted) (citing State v. Tenerelli, 598 N.W.2d 668, 671 (Minn.1999)); see In re Welfare of M.R.H., 716 N.W.2d 349, 351 (Minn.App.2006) (stating that appellate court reviews as a question of law whether a particular item is eligible for restitution under restitution statute), review denied (Minn. Aug. 15, 2006).

Under the restitution statute, a victim may request restitution for a specific loss if the defendant is convicted of a crime. Minn.Stat. § 611A.04, subd. 1(a) (2010). A request for restitution “may include, but is not limited to, any out-of-pocket losses resulting from the crime.” Id. However, a loss claimed as an item of restitution by a crime victim must have some factual relationship to the crime committed — a compensable loss must be “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); see State v. Olson, 381 N.W.2d 899, 901 (Minn.App.1986) (holding that restitution is proper for “victim’s losses [that] are directly caused by appellant’s conduct for which he was convicted”); see also Ramsay, 789 N.W.2d at 517 (reversing restitution award that “far exceeds the loss attributable to the offense of which [the defendant] was convicted”); State v. Chapman,

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931 N.W.2d 376 (Supreme Court of Minnesota, 2019)
In re the Welfare of I.N.A.
902 N.W.2d 635 (Court of Appeals of Minnesota, 2017)
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Court of Appeals of Minnesota, 2016
State of Minnesota v. Robert Neil Ackland
Court of Appeals of Minnesota, 2016
State of Minnesota v. Berry Alan Willis
883 N.W.2d 838 (Court of Appeals of Minnesota, 2016)
State of Minnesota v. Joseph Victor Pierce
Court of Appeals of Minnesota, 2016
State of Minnesota v. Ryan Roy Becker
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State of Minnesota v. Louis Steven Baratto
Court of Appeals of Minnesota, 2014
State of Minnesota v. Darnell Steven Cox
Court of Appeals of Minnesota, 2014
State of Minnesota v. Andrew Will Alexander
855 N.W.2d 340 (Court of Appeals of Minnesota, 2014)
State v. Riggs
845 N.W.2d 236 (Court of Appeals of Minnesota, 2014)
State v. Miller
842 N.W.2d 474 (Court of Appeals of Minnesota, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
796 N.W.2d 343, 2011 Minn. App. LEXIS 27, 2011 WL 978937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-minn-2011.