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State v. Putney

Supreme Court of North Dakota

June 30, 2016

State of North Dakota, Plaintiff and Appellee
v.
Robert Anthony Putney, Defendant and Appellant

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

          Kelly A. Dillon, Assistant State's Attorney, for plaintiff and appellee.

          Eric P. Baumann, Minot Public Defender Office, for defendant and appellant.

          OPINION

          Kapsner, Justice.

         [¶ 1] Robert Putney appeals from an amended criminal judgment ordering him to pay $49, 559 in restitution for the victim's medical expenses related to his aggravated assault conviction. Because the district court did not abuse its discretion in ordering restitution, we affirm.

         I

         [¶ 2] On June 15, 2014, Minot police arrested Putney for allegedly assaulting his girlfriend. The City of Minot charged Putney with simple assault for violating a city ordinance. On June 16, 2014, Putney pled guilty to the charge in municipal court and the court sentenced him to 30 days in jail.

         [¶ 3] In July 2014, the State charged Putney with aggravated assault for shooting his girlfriend during the June 2014 incident. Putney moved to dismiss the charge because of double jeopardy, claiming the two charges related to the same incident. The State argued there were two assaults. The district court denied the motion. Following a bench trial, the court found Putney guilty of aggravated assault. Putney moved for judgment of acquittal and a new trial. The court denied the motions, concluding it could not judicially notice the city ordinance, resulting in its inability to perform a double jeopardy analysis. The court sentenced Putney to four years in prison followed by five years of probation and reserved jurisdiction to determine restitution at a later date. Putney appealed to this Court.

         [¶ 4] While the appeal was pending, the State sought to have Putney pay $99, 117.55 in restitution for the victim's medical expenses. See State v. Hatlewick, 2005 ND 125, ¶¶ 12-15, 700 N.W.2d 717 (a district court may retain jurisdiction to order restitution and the defendant may separately appeal that order). Following a hearing, the court ordered Putney to pay $49, 559 to the Crime Victims Reparation Fund and Trinity Medical Center. In State v. Putney, 2016 ND 59, ¶¶ 1, 18, 877 N.W.2d 28, this Court later affirmed Putney's aggravated assault conviction and the order denying his motion for judgment of acquittal, but reversed the order denying his motion for new trial based on double jeopardy and remanded for the district court to determine whether to take judicial notice of Minot's simple assault ordinance and, if it does so, to perform a double jeopardy analysis.

         II

         [¶ 5] Putney argues the district court erred in ordering him to pay $49, 559 in restitution.

         [¶ 6] In State v. Gates, 2015 ND 177, ¶¶ 6-7, 865 N.W.2d 816, this Court explained the parameters for ordering restitution:

The district court may order restitution as part of a criminal defendant's sentence after a hearing on the matter. N.D.C.C. § 12.1-32-08(1). Our review of a restitution order is limited to whether the district court acted within the prescribed limits of the statute, which is similar to the abuse of discretion standard. State v. Bingaman, 2002 ND 210, ¶ 4, 655 N.W.2d 57. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. State v. Kleppe, 2011 ND 141, ¶ 28, 800 N.W.2d 311.
"[District] courts have a wide degree of discretion when determining restitution awards." State v. Gendron, 2008 ND 70, ¶ 8, 747 N.W.2d 125. In ordering restitution, the court shall consider: (1) the reasonable damages sustained by the victims, (2) the ability of the defendant to pay monetary reparations, and (3) the likelihood that attaching a condition relating to restitution will serve a valid rehabilitation purpose. N.D.C.C. § 12.1-32-08(1). The State has the burden to prove the amount of restitution by a preponderance of the evidence. Kleppe, 2011 ND 141, ¶ 28, 800 N.W.2d 311. "'Evidentiary imprecision on the amount of damages does not preclude recovery.'" Gendron, at ¶ 8 (quoting Keller v. Bolding, 2004 ND 80, ¶ 21, 678 N.W.2d 578). "When the quantity of damages awarded 'may be hard to prove, the amount ...

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