State v. Tenerelli

598 N.W.2d 668, 1999 Minn. LEXIS 518, 1999 WL 570972

• Court: Supreme Court of Minnesota
• Decided: August 5, 1999
• Docket: C3-98-318
• Status: Published

Opinions

OPINION

BLATZ, C.J.

Appellant, Anthony Tenerelli, was convicted of assault in the second and fifth degrees for an attack on Txawj Xiong and sentenced to 73 months in prison. Txawj Xiong then filed a victim impact statement and a request for restitution pursuant to Minn.Stat. §§ 611A.04 and 611A.045 (1996). He requested restitution for various expenses, including those relating to a traditional Hmong ceremony known as Hu Plig. Hu Plig involves the sacrifice of live animals to heal the soul of someone who has been physically and emotionally harmed. The trial court found that Txawj Xiong was entitled to restitution for the majority of his expenses, including most of the expenses relating to the Hu Plig ceremony. Appellant appealed the portion of the trial court’s order granting restitution for expenses relating to the Hu Plig ceremony.¹ The court of appeals affirmed the trial court’s order and this appeal followed. See State v. Tenerelli, 583 N.W.2d 1 (Minn. App.1998).

Appellant claims that section 611A.04 does not allow the state to order restitution for the Hu Plig ceremony. Further, appellant claims that if section 611A.04 does allow the state to order restitution for the Hu Plig ceremony, then the section as applied violates the Establishment Clause of the United States Constitution and article 1, section 16, of the Minnesota Constitution because Hu Plig is a religious ceremony. We hold that section 611A.04 allows the trial court to order restitution for the Hu Plig ceremony. We further hold that appellant failed to meet his burden of demonstrating that Txawj Xiong’s Hu Plig ceremony was religious and thus the Establishment Clause is not implicated.

Appellant was convicted of second and fifth degree assault for his role in an attack on Txawj Xiong. Txawj Xiong suffered two stab wounds in his back that required sutures. The stabbing occurred in front of Txawj Xiong’s wife and son. Following appellant’s conviction, he was sentenced to 73 months in prison. Txawj Xiong filed a victim impact statement, a request for restitution, and an affidavit pursuant to sections 611A.04 and 611A.045. He requested restitution to repair his automobile that was damaged in the assault and to replace his T-shirt that was ruined as a result of the stabbing. He also requested restitution for expenses relating to the Hu Plig ceremony.

The victim impact statement, prepared by the corrections department and filed with the trial court, relied on the expertise of William Yang of the Hmong American Partnership. Yang was contacted by a probation department official to provide information on the Hu Plig ceremony. According to information provided by Yang in the victim impact statement, Hu Plig is a healing ceremony “to restore the soul of a victim, normally a person who has been physically or emotionally traumatized.” Yang explained the “deeply held belief, particularly among elders of the Hmong community, that without the restoration ceremony the person will become sick and eventually die.” The ceremony is overseen by a shaman, who is a spiritual leader in the Hmong community.

The Hu Plig ceremony involves the sacrifice of animals, and for Txawj Xiong’s ceremony a cow, a pig, and two chickens were used. Family and close friends typically attend, and the beneficiary of the ceremony provides food for the guests. Txawj Xiong’s expenses for the ceremony were for a suit and shirt to be worn during the ceremony, the animals for sacrifice, a pig to roast, and the costs incurred to pay a shao woman to conduct the ceremony. When added to the other expenses resulting from the assault, Txawj Xiong’s reported expenses totaled $2,304.61, itemized as follows:

$15.00 Replacement T-shirt

$894.46 Automobile repair

$380.00 Suit for Hu Plig ceremony

$20.00 Shirt for Hu Plig ceremony

$540.00 Cow for sacrifice for Hu Plig ceremony

$90.00 Pig for sacrifice for Hu Plig ceremony

$10.00 Two chickens for sacrifice for Hu Plig ceremony

$155.15 Roast Pig for Hu Plig ceremony

$200.00 Shao woman to conduct Hu Plig ceremony

Appellant objected to all of the expenses relating to the Hu Plig ceremony, and the trial court held a hearing to determine restitution on August 28, 1997. At the hearing, the court noted for the record that a victim impact statement had been submitted to the court, which included the information provided by Yang. The trial court went on to read the portion of the victim impact statement regarding the Hu Plig ceremony into the hearing record.

In opposing Txawj Xiong’s request for restitution, appellant presented testimony from Neng Xiong, a native Laotian familiar with the Hmong culture. Neng Xiong had lived in the United States for 13 years, and had earned a bachelor’s degree in sociology, a master’s degree in cultural anthropology, and was pursuing a law degree at the time of the hearing. In addition to his formal education, he was raised in a traditional Hmong family and his father was a shaman.

Neng Xiong testified that 90 percent of the Hmong people living in the United States over the age of 40² who have not converted to Christianity still believe in the traditional Hmong practices and ceremonies. Neng Xiong agreed with Yang’s general description of the Hu Plig ceremony. Specifically, when questioned by appellant on redirect examination, Neng Xiong declined to characterize Hu Plig as a religious ceremony.

Neng Xiong further testified that the number of animals needed for a Hu Plig ceremony depends on the severity of the victim’s injuries. Based on his consultations with three elders in the Hmong community, he understood that the sacrifice of four animals would be appropriate for a “major” injury. However, he did not believe that the sacrifice of all four animals was necessary in the instant case because Txawj Xiong sustained what Neng Xiong characterized as a “medium” injury.

Following the hearing, the trial court issued an order adopting the testimony of Neng Xiong, the victim impact statement, the request for restitution and affidavit as the court’s findings of facts. The court then concluded that Txawj Xiong was entitled to an order for restitution, and awarded restitution in the amount of $1,894.51. The court disallowed restitution for the suit and shirt because those items would be subject to future use. Further, the court did not allow restitution for the two chickens, because Neng Xiong’s testimony demonstrated that the sacrifice of the chickens would be excessive given Txawj Xiong’s injuries. Thus, the trial court ordered restitution for the following losses:

$ 15.00 Replacement T-shirt

$894.46 Automobile repair

$629.90 ³ Cow and pig for sacrifice for Hu Plig ceremony

$155.15 Roast Pig for Hu Plig ceremony

$200.00 Shao woman to conduct Hu Plig ceremony

As noted earlier, appellant is only challenging those portions of the restitution order that result from the Hu Plig ceremony, totaling $985.05.

Appellant claims that the court of appeals erred in affirming the trial court’s restitution order for those costs resulting from the Hu Plig ceremony. In support of his claim, appellant raises two arguments. First, appellant argues that section 611A.04 does not allow the state to order restitution for the Hu Plig ceremony. Second, appellant argues that section 611A.04 as applied violates the Establishment Clauses of the United States and Minnesota Constitutions. . These arguments will be addressed in turn.

I.

Appellant claims that section 611A.04 does not allow the trial court to order restitution for the Hu Plig ceremony. While we review the interpretation of statutes de novo, see Doe v. Minnesota State Bd. of Med. Exam’rs, 435 N.W.2d 45, 48 (Minn.1989), trial courts are given broad discretion in awarding restitution, see State v. Maidi, 537 N.W.2d 280, 284-86 (Minn.1995).

Section 611A.04, subd. 1(a), 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.

(Emphasis added.)

We have recognized that this broad language gives the trial court significant discretion to award restitution for a victim’s expenses. See Maidi, 537 N.W.2d at 284. Thus, we “may not construe the statute to exempt certain types of expenses, even though we may consider these expenses inappropriate. To do so ⅜ * * would run contrary to the clear language of * * * section[ ] 611A.04 * * *, delegating the decision to the sentencing court.” Id.

Our recent decision in State v. Maidi demonstrates the broad scope of section 611A.04. In Maidi, we affirmed an order of the trial court granting restitution for counter-abduction expenses when the appellant was convicted of interfering with parental or custodial rights in violation of Minn.Stat. § 609.26, subd.' 1(4), (6) (1994). Id. at 281. The trial court in Maidi awarded $147,251.27 for expenses incurred by the victim-mother in counter-abducting her children from Algeria. Id. The victim had “contacted the ‘International Program Group,’ a team of former CIA and FBI special forces agents, and retained them to recover her children from Algeria.” Id. at 282. Apparently, the counter-abduction violated the laws of Algeria. Id. at 286 (Page, J., dissenting).

In the present case, appellant argues that the trial court erred in awarding restitution for Txawj Xiong’s Hu Plig healing ceremony. In support of his argument, appellant relies on language set forth in section 611A.045, subd. 1(a)(1), requiring that the trial court consider “the amount of economic loss sustained by the victim as a result of the offense” in awarding restitution. Appellant claims that the expenses of the Hu Plig ceremony are too far removed from appellant’s crime to qualify as an appropriate economic loss. However, the subdivision relied on by appellant does not limit the scope of section 611A.04, subd. 1(a), which explicitly provides that “[a] request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime.” ⁴ This broad language clearly and unambiguously leaves the decision to award restitution to the discretion of the trial court, subject to review of an abuse of its discretion.

Given the broad statutory language of section 611A.04 and the record in this case, we conclude that the trial court was within its discretion in ordering restitution for the costs of Txawj Xiong’s Hu Plig ceremony. We next address appellant’s claim that section 611A.04 violates the Establishment Clauses of the United States and Minnesota Constitutions.

II.

- As an alternative argument, appellant claims that section 611A.04 as applied violates the Establishment Clauses of the United States and Minnesota Constitutions. We presume that Minnesota statutes are constitutional, and “our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). Because appellant challenges the constitutionality of section 611A.04, appellant bears the burden of demonstrating beyond a reasonable doubt that a constitutional violation has occurred. Id. (citation omitted).

Because the burden rests with appellant, appellant must first demonstrate that Txawj Xiong’s Hu Plig ceremony was a religious ceremony. If appellant does not meet this initial burden, then we need not consider the substance of his constitutional argument.

Appellant failed to provide sufficient evidence before the trial court to satisfy his burden. Appellant called Neng Xiong as an expert in Hmong sociology and cultural anthropology. On redirect examination, Neng Xiong was asked if Hu Plig is “partially a religious ceremony.” Neng Xiong replied that:

It is difficult to say because in the tradition itself, my understanding is that, from my cultural anthropology studies, that a religion has to be a form of belief that is institutionalized. But at the same time the Hmong also, this is a kind of a form of belief from thousands of years ago and the thing has never been institutionalized yet.

As discussed above, the burden of demonstrating that Txawj Xiong’s Hu Plig ceremony was religious rests with appellant, and Neng Xiong’s statement does not provide evidence to overcome this burden.

Appellant also relies on the information provided by Yang in the victim impact statement indicating that Txawj Xiong’s Hu Plig ceremony was performed by a shaman to support his claim that the ceremony was religious. However, while a shaman can be thought of as a religious leader, the record indicates that shamans also serve other functions in the Hmong community. Further, the record indicates that even some of the Hmong people who have converted to Christianity continue to engage in these traditional ceremonies.

Given the lack of evidence and minimal record before the trial court, appellant has not met his burden of demonstrating that Txawj Xiong’s Hu, Plig ceremony was religious. Accordingly, the trial court and court of appeals properly determined that the Establishment Clauses of the United States and Minnesota Constitutions are not implicated and appellant’s claim that section 611A.04 is unconstitutional is without merit.

Affirmed as modified.

1 . Appellant also filed a direct appeal of his conviction, which was affirmed. See State v. Tenerelli, No. C2-97-1045, 1998 WL 113995 (Minn.App. March 17, 1998), pet. for rev. denied (Minn. May 20, 1998). Appellant could not appeal the restitution order in his direct appeal because the order was not issued until after appellant had filed his brief.

2 . Txawj Xiong was 44 years old at the time of the offense.

3 . While the trial court calculated the cost of the cow and pig to be $629.90, the receipts filed with the trial court show the actual cost to be $630.00. Therefore, we modify the restitution order to correct this error and award Txawj Xiong an additional $0.10.

4 . We note that section 611A.04, subd. 1(a), also provides for restitution for "medical and therapy costs.” The trial court made a finding of fact, supported by the record, that to many Hmong people Hu Plig is a form of healing and therapy. Specifically, Yang characterized Hu Plig as a healing ceremony for "a person who has been physically or emotionally traumatized.”