State v. Terpstra

• Decision Date: 12 April 1996
• Docket Number: No. C2-94-2018,C2-94-2018
• Parties: STATE of Minnesota, Respondent, v. Dana Michael TERPSTRA, Appellant.
• Court: Minnesota Supreme Court

Page 280

546 N.W.2d 280

STATE of Minnesota, Respondent, v. Dana Michael TERPSTRA, Appellant.

No. C2-94-2018.

Supreme Court of Minnesota.

April 12, 1996.

Syllabus by the Court

The district court did not err by ordering defendant to pay a restitution amount in excess of the monetary parameters of the offense because the higher amount was supported by a preponderance of the evidence presented at trial.

Review of Court of Appeals.

Susan K. Maki, Asst. State Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey III, Attorney General, St. Paul; Linda Freyer, Asst. County Attorney, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

OPINION

KEITH, Chief Justice.

Appellant Dana Michael Terpstra requests review of a court of appeals decision affirming the district court's order of full restitution following Terpstra's conviction of three counts of theft by swindle. Terpstra argues that the district court exceeded its power to award restitution when it ordered him to repay monetary amounts to his victims in excess of the statutory parameters of his offenses. Because the district court applies a lesser standard of proof in determining restitution amounts than it does in adjudicating guilt, we reject Terpstra's contentions and affirm the court of appeals decision.

The facts of this case are not disputed by the parties on appeal. During the time period in question, Dana Michael Terpstra was self-employed as a building contractor. He entered into written contracts with four different homeowners in Hennepin County to remodel their homes. After several complaints from the homeowners regarding Terpstra's performance, the Minnetonka Police Department investigated his business activities. The police discovered that before beginning work on the remodeling projects, Terpstra would routinely request large downpayments. Two of the alleged victims, Susan Gilmore and Thomas McEnery, told the investigating detective that after they paid the downpayment, Terpstra never performed any work in their homes. The other two victims, Jason Quam and Ronald Haskvitz, stated that Terpstra only performed a portion of the requested work. In addition to obtaining a downpayment, Terpstra asked the four homeowners for other sums of money, telling them that he needed it for supplies or new kitchen appliances, but he never actually supplied the merchandise promised. Susan Gilmore claimed that Terpstra received $26,048.52 from her and only provided her with some remodeling plans; Thomas McEnery claimed a loss of $10,454.48; Jason Quam alleged payment to Terpstra of $8,838.00; and Ronald Haskvitz estimated his losses at $3,700.

The criminal complaint filed against Terpstra charged him with four counts of theft by swindle. Minn.Stat. § 609.52, subd. 2(4) (1992) imposes criminal liability upon any person who "by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person." Subdivision 3 of that statute exposes a defendant to a range of maximum sentences depending upon the value of the property stolen. Theft of property valued at more than $2,500 can result in up to ten years of imprisonment and a $20,000 fine, while theft of property between $500 and $2,500 in value is punishable by a maximum of five years in prison and a $10,000 fine. Minn.Stat. § 609.52, subd. 3(2) and 3(3) (1992). Following a jury trial with testimony from all four victims, Terpstra was convicted of three counts of violating section 609.52, but acquitted of the count alleging theft from Ronald Haskvitz. The jury found Terpstra guilty in Susan Gilmore's case of theft of an amount in excess of $2,500. On the counts involving Jason Quam and Thomas McEnery, however, the jury acquitted Terpstra of the more serious offense, and instead found him guilty of the lesser included offense of theft of property valued between $500 and $2,500.

At sentencing on June 29, 1994, the three remaining victims requested restitution in the amounts alleged in the criminal complaint and verified by a presentence investigation. These sums were also documented at trial through cancelled checks and the witnesses' testimony. In reference to restitution, Terpstra's attorney voiced his objection to the district court's requirement that Terpstra repay the entire amount of $45,341 lost by the three victims. While Terpstra did not contest that the evidence at trial supported this aggregated amount of damages, his attorney argued that the jury had convicted Terpstra on two counts of theft of a lesser amount than charged in the complaint, and therefore the court "lacks jurisdiction to sentence above the statutory amount" of $2,500. The district court rejected this argument, noting that restitution "is not limited to the amounts charged in the complaint or admitted in the plea. And in this case, as to the jury's finding of guilty, the proof is different. * * * [P]roof beyond a reasonable doubt is required for conviction, whereas the Court need only find that the evidence sustains a loss, economic loss to the victim, by a fair preponderance of the evidence." The court sentenced Terpstra to serve fifteen months in prison, but stayed execution of that sentence for 10 years on the condition that Terpstra repay the victims a total of $45,341 in restitution and spend one year in the Hennepin County Workhouse without Huber privileges as a condition of his 10-year probation term.

The court of appeals affirmed the district court's restitution order. State v. Terpstra, 534 N.W.2d 554 (Minn.App.1995). The court found that the district judge had not abused his discretion by awarding the full amount of restitution to the victims because Terpstra did not dispute the accuracy of the $45,341 figure, and the prosecution had met its burden of proving the amount of loss by a preponderance of the evidence. See Minn.Stat. § 611A.045, subd. 3 (1992). The court acknowledged that the jury reached a different conclusion regarding the victims' losses, but reasoned that the district court judge's discretion in sentencing decisions was substantial:

This case, however, deals with restitution and the burden of proof for restitution is a preponderance of the evidence, not the beyond a reasonable doubt standard necessary for a conviction. The district court, in imposing Terpstra's sentence, did not follow the determination of the jury. The purposes of restitution, however, are not limited to punishing the offender. Restitution is also an attempt to compensate victims for their losses.

Terpstra, 534 N.W.2d at 556 n. 1. Terpstra now appeals from the appellate court's decision, arguing that the trial court ignored the jury's findings regarding the value of the property lost by the victims, and therefore erred by imposing restitution greater than $2,500 on the two lesser-included offenses.

A crime victim "has the right to receive restitution as part of the disposition of a criminal charge * * * if the offender is convicted. * * * A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime." Minn.Stat. § 611A.04, subd. 1 (1992) (in pertinent part). In determining the amount of restitution to be ordered, the trial 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. § 611A.045, subd. 1 (1992) (emphasis added). Any dispute regarding the proper amount 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. § 611A.045, subd. 3 (1992). ¹

Terpstra argues that despite the plain language of these statutes, the district court erred when it ordered him to repay the three victims the full amount of the losses established at trial. He asserts that the jury's verdict of not guilty of theft by swindle in excess of $2,500 on two counts restricts the district court during the sentencing phase and prohibits the court from ordering restitution beyond $2,500. The State responds that the determination of guilt or innocence at trial is entirely separate from the determination of the restitution to be ordered by the district court judge. While the jury must find a defendant guilty of a crime beyond a reasonable doubt, section 611A.045 clearly mandates that the district court determine the appropriate amount of restitution by the preponderance of the evidence. Therefore, it is entirely possible that while the jury did not find beyond a reasonable doubt that Terpstra had misappropriated more than $2,500 from two of the victims, the district court judge concluded that the full amount alleged by the victims was established at trial to the satisfaction of the civil standard.

This specific issue is one of first impression in Minnesota. Other states have addressed the question raised by Terpstra, as will be discussed below. The closest analogy in Minnesota is perhaps State v. Olson, 379 N.W.2d 524 (Minn.1986). In Olson, a jury convicted the defendant of receiving stolen property valued at $1,000 or more in violation of Minn.Stat. § 609.53, subd. 1 (1984). At sentencing, the district court judge had a choice of two different offense severity levels under the Sentencing Guidelines. 379 N.W.2d at 526. If the value of the property received was more than $2,500, the offense was classified at severity level VI. And if the value was between $1,000 and $2,500, the offense was classified at level V. After calculating Olson's criminal history and custody status scores, he was subject to a period of imprisonment of either 73 or 61 months, depending on the judge's determination of the value of the property. Id. Olson's attorney argued that the district judge should not apply the higher offense...