This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1652
State of Minnesota,
Respondent,
vs.
Wayne Brian Christensen,
Appellant.
Filed July 21, 2014
Affirmed in part, reversed in part, and remanded
Hudson, Judge
Morrison County District Court
File No. 49-CR-12-808
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian Middendorf, Morrison County Attorney, Little Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Jr., Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
On appeal from his conviction of second-degree assault, appellant argues that the
district court erred by awarding the victim restitution. Because we conclude that two of
the three items of restitution were properly awarded, we affirm in part, reverse in part,
and remand.
FACTS
Appellant Wayne Brian Christensen was arrested following an incident in his
neighborhood when he threatened to kill children and pointed his loaded gun at a
neighbor as she was driving home and entering her house. He was charged with second-
degree assault with a dangerous weapon for pointing the gun at his neighbor and making
terroristic threats. He entered a Norgaard plea to second-degree assault, and the
terroristic-threats charge was dismissed.
Shortly after the plea, the neighbor filed an affidavit of restitution with supporting
documentation. The affidavit requested $318.55 for missed work, $760 for a self-defense
class, and $10,400 for loss in home value. Appellant did not respond to this affidavit
until the day of sentencing nearly seven months later. At the sentencing hearing,
appellant’s attorney orally objected to restitution for the self-defense class and the loss in
home value. The district court awarded restitution of $3,078.55, including the work
costs, self-defense class, and $2,000 “for loss of [the neighbor’s] home and loss of her
safety and security in her home and possible loss of value to her home . . . if she decides
to sell it.” This appeal follows.
DECISION
An award of restitution is reviewed for an abuse of discretion. State v. Tenerelli,
598 N.W.2d 668, 671 (Minn. 1999). But deciding whether a particular item falls within
the statutory definition of restitution is a question of law reviewed de novo. State v.
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Thole, 614 N.W.2d 231, 234 (Minn. App. 2000). Appellant argues that there was not
sufficient documentation to support the award of restitution and that any restitution
related to the value of the neighbor’s home was too speculative. The state does not
address appellant’s arguments, but rather argues that appellant waived the challenge to
restitution by failing to follow the proper statutory procedures at the district court.
Minn. Stat. § 611A.045 (2010) outlines the procedures by which an offender may
challenge restitution. That section provides that an offender may challenge restitution by
requesting a hearing within “30 days of receiving written notification of the amount of
restitution requested, or within 30 days of sentencing, whichever is later[;] . . . [t]he
hearing request must be made in writing and filed with the court administrator.” Id.,
subd. 3(b) (emphasis added). At the subsequent hearing:
the offender shall have the burden to produce evidence if the
offender intends to challenge the amount of restitution or
specific items of restitution or their dollar amounts. The
burden of production must include a detailed sworn affidavit
of the offender setting forth all challenges to the restitution
. . . and specifying all reasons justifying dollar amounts of
restitution which differ from the amounts requested by the
victim or victims.
Id., subd. 3(a) (emphasis added). Here, appellant’s counsel made an oral objection to the
restitution at the sentencing hearing, but never made a written request for a hearing and
never submitted an affidavit detailing the specific challenges to the restitution amounts.
When an offender disputes the amount or type of restitution, the procedural
requirements of Minn. Stat. § 611A.045, subd. 3(a), must be met. State v. Gaiovnik, 794
N.W.2d 643, 647 (Minn. 2011). Appellant challenged the self-defense class and loss of
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home value because they were not “appropriate items for restitution”; thus, he was
required to follow the statutory requirements. “[A] valid [restitution] dispute arises only
after an offender meets the threshold burden of raising a specific objection by affidavit.”
Thole, 614 N.W.2d at 235. Because appellant did not follow the proper procedures for
objecting to the restitution award at the district court, his argument on appeal is waived.
See Mason v. State, 652 N.W.2d 269, 273 (Minn. App. 2002), review denied (Minn.
Dec. 30, 2002) (concluding that appellant’s postconviction petition disputing a restitution
award was untimely because it did not comport with the 30-day statutory requirement for
challenging an award); Thole, 614 N.W.2d at 235 (declining to address objections to
restitution award where appellant had not complied with the statutory requirements at the
district court).
Although we strongly caution parties to comply with the statutory requirements
for challenging restitution, this court may address any argument in the interests of justice,
and we choose to do so here. See Minn. R. Crim. P. 28.02, subd. 11 (stating that this court
“may review any order or ruling of the district court . . . as the interests of justice may
require.”). The district court’s award of $2,000 “for loss of [the neighbor’s] home and
loss of her safety and security in her home and possible loss of value to her home . . . if
she decides to sell it” was in error. “[R]estitution is limited to recovery of economic
damages sustained by the victim.” State v. Colsch, 579 N.W.2d 482, 484 (Minn. App.
1998); see also Minn. Stat. § 611A.045, subd. 1(a)(1). “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, [and] replacement of wages and services.” Minn. Stat.
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§ 611A.04, subd. 1(a) (2010). Appellant does not dispute the award for missed work. In
addition, the award for the neighbor’s self-defense class was documented, and the district
court likened it to therapy necessary for the neighbor to recover mentally from the
assault. Accordingly, those two awards were proper. But the district court’s award of
$2,000 for possible loss of value to the neighbor’s home was not proper because it was
speculative and did not represent an actual economic loss. If the neighbor sells her house
in the future, and can document a reduced sale price based on appellant’s actions, the
restitution award can be amended at the time of the actual economic loss. Colsch, 579
N.W.2d at 485; Minn. Stat. § 611A.04, subd. 1(b) (2010). Accordingly, we affirm the
district court’s award of restitution for the self-defense class and missed work, but reverse
the award for lost home value and remand for the district court to issue an amended order
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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