from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner, Judge.
M. Vaagen, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
B. Cottrill, Bismarck, ND, for defendant and appellant.
Javonne Hunt appeals from a district court order requiring
him to pay $27, 501.86 in restitution to Blue Cross Blue
Shield ("BCBS"). Hunt argues that an award of
restitution under N.D.C.C. § 12.1-32-08(1) to BCBS, a
corporation, is in conflict with the definition of
"victim" provided by N.D. Const. art. I, § 25
and therefore inappropriate. We affirm the district
On October 23, 2017, Hunt was playing basketball at the YMCA
in Bismarck, North Dakota when he was involved in an
altercation with an opposing player. Hunt intentionally
struck the opposing player in the jaw causing a bone
fracture. Hunt was charged and subsequently found guilty by a
jury of aggravated assault.
Following his conviction, Hunt agreed to pay as restitution
the out-of-pocket medical expenses incurred by the injured
individual in the amount of $3, 233.07. BCBS provided
evidence that it had paid an additional $27, 501.86 for the
medical treatment of the injured individual under the injured
individual's policy of insurance. The district court
applied N.D.C.C. § 12.1-32-08(1) in granting restitution
to BCBS and ordered Hunt to pay a total of $30, 734.93; $3,
233.07 for the conceded out-of-pocket costs plus the $27,
501.86 claimed by BCBS. Hunt argued BCBS is precluded from
recovery of its expenditures in the criminal proceedings
because the definition of "victim" under N.D.
Const. art. I, § 25 is incompatible with a recovery by a
corporation under the criminal restitution statute, N.D.C.C.
Hunt and the State frame the issue on appeal as whether the
definition of "victim" under N.D. Const. art. I,
§ 25 can include a corporation. Hunt concedes our prior
case law provides that an insurance company can qualify as a
victim under N.D.C.C. § 12.1-32-08 and that an insurance
company can recover restitution in a criminal proceeding.
State v. Vick, 1998 ND 214, ¶ 7, 587 N.W.2d
567. However, he argues our decision in State v.
Strom, 2019 ND 9, 921 N.W.2d 660, issued after the
enactment of N.D. Const. art. I, § 25, declared N.D.C.C.
§ 12.1-32-08 "inoperative and unenforceable"
because it irreconcilably conflicts with N.D. Const. art. I,
§ 25. Hunt then argues because N.D.C.C. §
12.1-32-08 is inoperative and unenforceable, we are required
to look to the definition of "victim" provided
within N.D. Const. art. I, § 25 to determine who may
recover restitution in a criminal proceeding. Hunt concludes
N.D. Const. art. I, § 25 unambiguously limits the
definition of a victim to individuals, limits recovery of
restitution to victims, and therefore precludes recovery by a
Hunt's reliance on our prior decision in Strom
is misplaced. In Strom, this Court was presented
with the question of "whether article I, § 25(1)(n)
abrogates the required consideration of the defendant's
ability to pay restitution under factor (b) of N.D.C.C.
§ 12.1-32-08(1)." Strom, 2019 ND 9, ¶
5, 921 N.W.2d 660. This Court limited its decision to
resolving whether a defendant's ability to pay should be
considered in a determination of the amount of restitution,
and we concluded "a district court may not consider a
defendant's ability to pay in determining the amount of
restitution awarded to a victim." Id. at ¶
9. In Strom, we did not consider, or resolve, the
definition of victim under N.D. Const. art. I, § 25.
As noted in the prior paragraph, we have not previously
decided whether N.D. Const. art. I, § 25(1)(n) precludes
the application of N.D.C.C. § 12.1-32-08(1) to a
recovery of restitution by a corporation. The district court
found N.D.C.C. § 12.1-32-08 and N.D. Const. art. I,
§ 25 could be harmonized and applied N.D.C.C. §
12.1-32-08 to order restitution in favor of BCBS. Whether the
state constitution abrogates a statute is a question of law.
Strom, 2019 ND 9, ¶ 3, 921 N.W.2d 660.
Questions of law are reviewed de novo in determining whether
the district court erred through misapplication or
misinterpretation of the law. State v. Kostelecky,
2018 ND 12, ¶ 6, 906 N.W.2d 77.
Article I, § 25(4), of the North Dakota Constitution
reads as follows:
As used in this section, a "victim" is a person who
suffers direct or threatened physical, psychological, or
financial harm as a result of the commission or attempted
commission of a crime or delinquent act or against whom the
crime or delinquent act is committed. If a victim is
deceased, incompetent, incapacitated, or a minor, the
victim's spouse, parent, grandparent, child, sibling,
grandchild, or guardian, and any person with a relationship
to the victim that is substantially similar to a listed
relationship, may also exercise these rights. The term
"victim" does not include the ...