State v. Tupa

• Decision Date: 24 January 2005
• Docket Number: No. 20040132, No. 20040106
• Citation: 691 NW 2d 579,2005 ND 25
• Parties: State of North Dakota, Plaintiff and Appellee v. Mark Joseph Tupa, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Brandon Kok, Defendant and Appellant.
• Court: North Dakota Supreme Court

2005 ND 25

691 NW 2d 579

State of North Dakota, Plaintiff and Appellee v. Mark Joseph Tupa, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee v. Brandon Kok, Defendant and Appellant.

Nos. 20040106, 20040132

Supreme Court of North Dakota.

Filed January 24, 2005

James O. Johnson, State's Attorney, P.O. Box 39, Stanton, ND 58571-0039, for plaintiff and appellee.

Todd A. Schwarz, 515½ E. Broadway, Ste. 103, Bismarck, ND 58501, for defendant and appellant Mark Joseph Tupa.

Loren Cay McCray, P.O. Box 2732, Bismarck, ND 58502-2732, for defendant and appellant Brandon Kok.

Opinion of the Court by VandeWalle, Chief Justice.

VandeWalle, Chief Justice.

[¶1] Mark Tupa and Brandon Kok appealed from restitution orders that directed them each to pay $12,000 in victim compensation stemming from their pleading guilty to felony criminal mischief. Both appeals raise identical issues, whether the trial court abused its discretion in determining the amount of restitution or the defendants' ability to pay restitution. We affirm the restitution orders.

[¶2] Tupa and Kok pleaded guilty to felony criminal mischief resulting from their role in the destruction of a rural farmstead owned by Terence Schmidt and the Schmidt family. In addition to Tupa and Kok, two juveniles were involved in the crime. Criminal judgments entered against Tupa and Kok ordered them each to pay 1/4 of an amount to be determined at a restitution hearing. At this restitution hearing, Schmidt testified that damage to his real and personal property, plus a $30 per hour allotment for cleaning costs, totaled $93,275.27. Schmidt went to local businesses to obtain the costs of replacing damaged items and went to a local contractor for an estimate to repair the house. Schmidt, therefore, used replacement values to calculate many of his damages. The defendants presented expert testimony regarding the amount of damage to the real and personal property. These experts testified the real property diminished in value by $15,000, while the Schmidt family's personal property decreased in value by $9,349, for an overall damage total of $24,349. Tupa and Kok were each ordered to pay $12,000 in compensation to the owners of the farmstead, payable at $500 per month during their 24-month probations. Thus, the district court placed total damages at $48,000.

I.

[¶3] Under N.D.C.C. § 12.1-32-08(1), courts have the authority to order a criminal defendant to pay restitution. Section 12.1-32-08(1), N.D.C.C., states, in part:

Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence it may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court, unless the court states on the record, based upon the criteria in this subsection, the reason it does not order restitution or orders only partial restitution. In determining whether to order restitution, the court shall take into account:

a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant's criminal action. . . .

b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim's property.

c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilitational purpose in the case of the particular offender considered.

Thus, under N.D.C.C. § 12.1-32-08(1), a restitution hearing is required to be held prior to imposing restitution as a sentence, and this provision is applicable "in situations where the defendant either is found guilty or pleaded guilty to a criminal charge and the amounts or the issues of restitution or reparation are uncertain or are in dispute." State v. Thorstad, 261 N.W.2d 899, 901 (N.D. 1978). This Court's review of a restitution order is limited to whether the district court acted within the limits set by statute, which is similar to an abuse of discretion standard. State v. Bingaman, 2002 ND 210, ¶ 4, 655 N.W.2d 57; State v. Kensmoe, 2001 ND 190, ¶ 7, 636 N.W.2d 183. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Bingaman, at ¶ 4; Kensmoe, at ¶ 7. "[T]he State has the burden in a restitution hearing to prove the amount of restitution by a preponderance of the evidence." State v. Gill, 2004 ND 137, ¶ 7, 681 N.W.2d 832.

[¶4] Tupa and Kok assert the district court abused its discretion in setting the amount of restitution by improperly relying on the victim's damage figures, which were based on replacement values. Replacement cost is defined as the cost of acquiring an asset that is as equally useful or productive as an asset currently held. Black's Law Dictionary 349 (7th ed. 1999). To avoid giving the victim a windfall, Tupa and Kok believe the district court should have relied upon costs to repair or diminutions in fair market value to calculate restitution. The defense's experts applied these techniques in their calculations.

[¶5] At the restitution hearing, Tupa and Kok presented a number of examples where the district court's reliance on Schmidt's valuations or replacement costs would have possibly been erroneous. Tupa and Kok uncovered, for instance, that Schmidt claimed over $20,000 in damages to a camper, yet he paid only $4,700 for this item, which had a fair market value of $3,900 at the time it was destroyed. Another item, a deep freeze, only had a dent on its side and was still in working order, but $350 of replacement costs were reported. Tupa and Kok pointed out the victim did not inspect some of the items listed as damaged, though he claimed $1,000 for these miscellaneous items. They emphasized that very few of the items reported as damaged were new. Finally, the defendants noted that Schmidt allocated 193 hours, at $30 per hour, for cleaning his property, despite no specialized labor being required. The defense attorneys, therefore, effectively highlighted many areas where Schmidt's replacement values and claimed expenses were potentially inappropriate.

[¶6] The district court judge commented regarding the appropriateness of using replacement costs, as opposed to diminutions in fair market value, to calculate restitution:

I do not believe [diminution in fair market value] is a correct measure of damaging restitution in a criminal case because I believe victims are entitled to be restored. That doesn't mean that if you have property, carpet that's 12 years old, that they're entitled to have new carpet restored but they are to be restored to the condition that it had been in and in this particular case that would be my decision. I'll allow you to present evidence that would relate to [diminution in fair market value] but a crime victim would be treated differently, I believe, than if you were bringing a tort action.

. . . .

What I'm saying is I don't think [diminution in fair market value is] a fair measure. I don't think that a crime victim is required then to take diminution in value because they're entitled to be restored and that's my decision with regard to that and you can certainly take exception.

. . . .

Well, I don't think that a crime victim is somehow required to sell off their possessions at auction price rates, that somehow they don't deserve any more compensation for that and you can continue to take exception with it but — you know, that's fine.

[¶7] Despite this unequivocal language, it is apparent the trial judge listened to, and was persuaded by, the defendants' complaints regarding Schmidt's figures. The trial court's restitution award was certainly not the product of a blind reliance on Schmidt's data. Indeed, the trial court did not exclusively rely on the testimony offered by Schmidt or the defense experts in setting restitution. The trial court arrived at its own measure of damages, which was between the values offered by Schmidt and the defense witnesses. Cf. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 375 (N.D. 1996) ("We ordinarily sustain an award of damages [in an eminent domain proceeding] if it is within the range of the evidence presented to the trier of fact."); City of Devils Lake v. Davis, 480 N.W.2d 720, 725 (N.D. 1992) (same). Implicit in such a calculation is the utilization of multiple measures of damages, designed to make a particular victim whole in the varying and unique aspects of his loss. The trial judge placed restitution at $48,000. This represents a $45,275.27 reduction from Schmidt's replacement-cost figures, which more than covers the specific complaints identified above.

[¶8] Examining the restitution statute, the Legislature authorized restitution in an amount that would be commensurate with "reasonable damages," which is to be limited to those "expenses actually incurred as a direct result of the defendant's criminal action." See N.D.C.C. § 12.1-32-08(1)(a). Reasonableness in this context cannot be reduced to any one formulation. Given the wide spectrum of factual situations and damages, and mindful of the term "expenses actually incurred," trial courts are vested with a wide degree of discretion in arriving at restitution awards. While diminution in value remains one of the measures of damage, there are situations where replacement costs will be needed to make a criminal victim whole or, stated differently, to reimburse a...