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State v. Hunt

Supreme Court of North Dakota

May 16, 2019

State of North Dakota, Plaintiff and Appellee
v.
Javonne Qwanae Hunt, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Tessa M. Vaagen, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Yancy B. Cottrill, Bismarck, ND, for defendant and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶1] 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 court's order.

         I.

         [¶2] 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.

         [¶3] 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. § 12.1-32-08(1).

         II.

         [¶4] 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 corporation.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...

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