IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ||
| Plaintiff-Appellee, | ||
| -vs- | ||
| Jonathan Moore, | Supreme Ct. No. 20090143 | |
| Defendant-Appellant, | District Ct. No. 08-07-K-2781 | |
| SA File No. F889-07-12 |
BRIEF OF PLAINTIFF-APPELLEE
APPEAL FROM AMENDED CRIMINAL JUDGMENT DATED
APRIL 7, 2009
Burleigh County District Court
South Central Judicial District
The Honorable Gail Hagerty, Presiding
| Lloyd C. Suhr |
| Burleigh County Assistant State's Attorney |
| Courthouse, 514 East Thayer Avenue |
| Bismarck, North Dakota 58501 |
| Phone No: (701) 222-6672 |
| BAR ID No: 05405 |
| Attorney for Plaintiff-Appellee |
| TABLE OF CONTENTS | |
| Page No. | |
| Table of Authorities | |
| i | |
| Statement of the Issues | |
| 1 | |
| Argument | |
| 2 | |
| Conclusion | |
| 5 | |
| Table of Authorities | |
| Page No. | |
| Cases | |
| In re G.R.H. 2008 ND 222; 758 N.W2d 719 | |
| 3 | |
| State v. Moos 2008 ND 228; 758 N.W.2d 674 | |
| 2 | |
| Statutes | |
| N.D.C.C. 12.1-32-08(1) | |
| 2, 5 | |
| N.D.C.C. 12.1-32-08(1)(a) | |
| 3 | |
| N.D.C.C. 12.1-32-08(1)(b) | |
| 3 | |
| N.D.C.C. 12.1-32-08(1)(c) | |
| 3 | |
Statement of the Issues
Whether the trial court's inclusion of $1,784.00 restitution was an abuse of its discretion? Argument
Recently, in State v. Moos, 2008 ND 228, 758 N.W.2d 674, this Court summarized the applicable standard of review where the issue of restitution is on appeal. Specifically, this Court stated:
A sentencing court has authority to order a criminal defendant to pay restitution. This Court must affirm the restitution order of the district court unless the court acted outside the limits set by statute, which is similar to an abuse-of-discretion standard. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, it its decision is not the product of a rational mental process leading to a reasoned determination, or it if misinterprets or misapplies the law. Although the State has the burden of proving the amount of restitution, the defendant has the burden to raise and prove an inability to pay the restitution ordered. . . . [T]he district court has a wide degree of discretion when determining the appropriate amount of restitution. Moos, 2008 ND at ¶¶ 30-31. [citations omitted].
The Appellant ("Moore"), argues the trial court abused its discretion in awarding restitution of $1,784.00 because his sentence of twelve (12) years effectively abandoned rehabilitation as a focus, he lacks the ability to pay the same, and that the evidence does not support the figure ordered. His arguments to this effect lack support in the Record.
Section 12.1-32-08(1) recognizes three different factors that a trial court is to take into consideration when deciding whether to order restitution. The first factor is the reasonable damages sustained by the victim as directly related to the criminal offense and expenses actually incurred as a direct result thereof. N.D.C.C. § 12.1-32-08(1)(a). Second, the court must consider the ability of the defendant to make monetary reparations. N.D.C.C. § 12.1-32-08(1)(b). Third, the court must consider the likelihood that imposing a restitution requirement will serve a valid rehabilitative purpose. N.D.C.C. § 12.1-32-08(1)(c).
As to the first factor, Justin Theel, ("Theel") General Manager of Cedric Theel testified. He provided an itemized breakdown of each of the underlying figures supporting the overall restitution request, how they were calculated, and why it was believed those damages were directly related to Moore's criminal conduct. (Trans., Restitution Hearing, October, 8, 2009, p. 1-12). The trial court apparently found that testimony persuasive. This Court does not second guess the assessments of credibility attributed to witness testimony. In re G.R.H., 2008 ND 222, ¶ 7, 758 N.W2d 719. The trial court even gave Moore the benefit of the doubt as that portion of the requested restitution that it did not feel stemmed directly from the criminal conduct. (Trans., Restitution Hearing, April 2, 2009, p. 10, lines 11-13). This first factor supports the restitution ordered.
As to the second factor, it is significant that Moore failed to object in any way to that portion of the Criminal Judgment ordering restitution in the amount of $3,663.00 to the Fort Abraham Lincoln Foundation, yet argues that he has the inability to pay $1,784.00 in restitution to Cedric Theel. It would seem that if Moore truly lacked the ability to the latter, he would also be unable to pay the former, an amount nearly twice as large yet completely unchallenged. His failure to object seems to counter his assertion he lacks the ability to pay restitution. Moore, and not the State, had the burden to prove an ability to pay restitution. He presented no evidence of disability, lack of earning capacity upon his release, or any other impediment to his being able to pay restitution upon completion of his sentence. This second factor supports the restitution ordered.
As to the third factor, as a matter of public policy, there is an inherent rehabilitative component to paying restitution. Requiring a defendant to make a victim whole will promote appreciation for and respect of the property of others. Moore cites only the length of his sentence to support his claim that restitution in this instance would serve no valid rehabilitative purpose. He cites no legal authority to show that any court has ever adopted such reasoning in support of his contention. Further, since Moore does not seem to challenge the existence of rehabilitative value in his being required to pay restitution to the Fort Abraham Lincoln Foundation, his argument that there is no similar rehabilitative purpose behind the requirement he pay restitution to Cedric Theel defies logic.
Moore also contends that the trial court erred in not making a specific finding that ordering him to pay restitution would serve a valid rehabilitative purpose. However, N.D.C.C. § 12.1-32-08(1) has no such requirement. To the contrary, the statute provides that the court must order restitution unless it states on the record its specific reason(s) it is not doing so. Id.
Given the public policy supporting orders of restitution, the broad discretion of the trial court in determining whether restitution was appropriate and if so, in what amounts, the itemized breakdown and explanation of each of the amounts comprising the total restitution ordered in this case, the superior position of the trial court to assess the credibility of witnesses at a restitution hearing, and Moore's failure to present any evidence he could not pay restitution, it was not an abuse of discretion for the trial court to order restitution in the amount of $1,784.00. Conclusion
Based upon the foregoing, the State requests that the Amended Judgment and it's requirement that Moore pay restitution of $1,784.00 to Cedric Theel be affirmed in its entirety.
| Dated this ____ day of October, 2009. |
| Lloyd C. Suhr |
| Burleigh County Assistant State's Attorney |
| Courthouse, 514 East Thayer Avenue |
| Bismarck, North Dakota 58501 |
| Phone No: (701) 222-6672 |
| BAR ID No: 05405 |
| Attorney for Plaintiff-Appellee |