Opinion
A22-0793
01-09-2023
State of Minnesota, Respondent, v. Henry Albert Allison, Jr., Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Traverse County District Court File No. 78-CR-20-130
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran, Judge.
BJORKMAN, Judge
Appellant challenges his sentences for criminal sexual conduct and possession of child pornography, arguing that the district court (1) abused its discretion by awarding restitution for losses incurred by the victim's mother and sister because those losses did not directly result from the offenses, and (2) erred by sentencing him for both offenses because they arose out of a single behavioral incident. We affirm in part, reverse in part, and remand.
FACTS
In October 2020, appellant Henry Allison pleaded guilty to committing three offenses-second-degree criminal sexual conduct, use of a minor in a sexual performance, and possession of child pornography-against the six-year-old daughter (child) of his girlfriend (mother) that July. At the plea hearing, Allison testified that on July 10 or 12, he pulled aside child's underwear to "expos[e] her" and used his cell phone to take a photograph of her bare vaginal area. The same day, he took a similar photograph but with child's underwear in place and his bare penis nearby.
The complaint identifies child as seven years old (which she was when it was filed), and she was described as seven years old at the plea hearing. But mother testified at the restitution hearing that she was actually six years old at the time of the offenses, which Allison does not dispute.
The district court imposed an executed sentence of 91 months for second-degree criminal sexual conduct and stayed consecutive sentences for the other two offenses. The state appealed, arguing that the consecutive stayed sentences constituted departures from the sentencing guidelines, which the district court failed to support with findings of substantial and compelling circumstances.
Allison sought to pursue a related appeal to challenge the imposition of multiple sentences, but this court concluded that the challenge was outside the scope of Minn. R. Crim. P. 28.04, subd. 3.
While the appeal was pending, the district court addressed restitution. The state requested reimbursement for mother's lost wages and therapy expenses for child, mother, and child's younger half-sister (sister), who is the child of mother and Allison. Allison contested the restitution claim. At a restitution hearing, mother testified that she took child and sister to a therapist at the recommendation of county social workers because it was unclear whether child was awake when Allison took the photographs and whether sister was present and awake. She explained that child "does not appear to" be aware of what happened to her and "has not been open about it." She acknowledged that the therapist "has made it clear that there is trauma [for the girls] from losing a father figure" but "has not uncovered anything [else] specifically." But mother also noted that child now "does not want assistance with washing herself" or "anyone else in the room even her younger sister when she is changing," whereas before the offenses she "had absolutely no problem" with those things. Mother observed no such behavioral changes with sister.
Mother also testified about her own losses. She explained that she experienced emotional distress and felt unable to be away from her children-even to sleep-stating that she was "afraid someone was going to hurt them if [she] was not there." Mother recounted, "So, the fears were-the fears were taking over everything so that I could not do anything that needs to happen in everyday life." Because medication "was not doing enough," mother was admitted to the hospital "under a mental health hold for a week," followed by six weeks of "intensive outpatient" care. This emotional distress also left her unable to work from October 2020 until the beginning of February 2021. She confirmed that the only reason she stopped working and sought mental-health treatment was because of "what happened to [her] daughter."
Based on this testimony, the district court awarded $15,510.44 in restitution for (1) child's therapy expenses and related travel expenses, (2) sister's therapy expenses and related travel expenses, (3) mother's therapy expenses and related travel expenses, and (4) mother's lost income.
This court thereafter reversed Allison's sentence, agreeing that the stayed consecutive sentences constituted an improper departure, and remanded for resentencing. State v. Allison, No. A21-0650 (Minn.App. Jan. 10, 2022) (order op.). On remand, Allison argued that the district court could sentence him for only one of the offenses because they were all committed as part of the same behavioral incident. The district court agreed with respect to the criminal-sexual-conduct and sexual-performance offenses but not the childpornography offense and sentenced Allison to consecutive prison terms of 91 months for second-degree criminal sexual conduct and 15 months for possession of child pornography. Allison appeals.
DECISION
I. The district court abused its discretion by awarding restitution for sister's expenses but did not abuse its discretion by awarding restitution for mother's expenses.
A district court has "broad" discretion in awarding restitution. State v. Boettcher, 931 N.W.2d 376, 380 (Minn. 2019). We will not reverse a restitution award absent an abuse of that discretion. Id.
A crime victim has a right to receive restitution "if the offender is convicted." Minn. Stat. § 611A.04, subd. 1(a) (2020). This right extends to any "natural person who incurs loss or harm as a result of a crime," including "family members . . . of a minor." Minn. Stat. § 611A.01(b) (2020). Restitution "may include, but is not limited to, any out-ofpocket losses resulting from the crime, including medical and therapy costs [and] replacement of wages and services." Minn. Stat. § 611A.04, subd. 1(a). Because losses must result from the crime, a restitution award must be limited to "losses that are directly caused by, or follow naturally as a consequence of, the defendant's crime." Boettcher, 931 N.W.2d at 381. A mere "factual relationship" between the crime and the losses is insufficient. Id.
Allison does not contest the award of restitution for child's therapy expenses and related travel expenses. Nor does he dispute that mother and sister, as child's family members, constitute victims entitled to restitution under Minn. Stat. § 611A.01(b). But he argues that the district court abused its discretion by awarding restitution for mother's lost income and expenses related to her own and sister's therapy because these losses were not directly caused by his offenses. This argument has several facets; nearly all of them are unavailing.
First, Allison asserts that mother's and sister's expenses are like those in Boettcher and other cases where restitution awards were reversed because the losses were factually but not directly related to the offense of conviction. See id. (holding restitution for fire damage improper when defendant was charged with robbery and arson but convicted only of robbery); State v. Esler, 553 N.W.2d 61, 65 (Minn. 1996) (holding restitution improper as to damage to home defendant used for "target practice" before the shooting murder of which he was convicted), rev. denied (Minn. Oct. 15, 1996). We agree as to sister's therapy expenses because the evidence does not demonstrate that she has any awareness of Allison's offenses, only that she has felt the effects of being separated from her father because of his incarceration. But this is not so with respect to mother's own losses.
Mother's testimony demonstrates that Allison's offenses caused her emotional distress, preventing her from working and necessitating extensive mental-health care. Her therapy costs and lost wages are precisely the types of losses contemplated by the restitution statute. Minn. Stat. § 611A.04, subd. 1(a). And they "follow naturally as a consequence of [Allison's] crime," Boettcher, 931 N.W.2d at 381, much like the loss of wages incurred by a murder victim's daughter when she attended trial "to achieve closure in coping with her father's death," State v. Palubicki, 727 N.W.2d 662, 667 (Minn. 2007).
Second, Allison contends his offenses "were committed against a single victim" and "only directly caused the harms to the minor victim he assaulted." We disagree. The implication that nobody other than the immediate victim of an offense can suffer direct losses would constitute an end-run around the statutory definition of "victim," which expressly includes several categories of people who are not immediate victims-not just a family member of a minor but also a "guardian, conservator, or custodian of a minor, incompetent, incapacitated, or deceased person." Minn. Stat. § 611A.01(b).
Third, Allison asserts that the only types of family losses that meet the direct-cause standard are those incurred by a family member in assisting the minor victim of the offense, such as by personally tending to the child in the hospital, as in In re Welfare of M.R.H., 716 N.W.2d 349, 353 (Minn.App. 2006), rev. denied (Minn. Aug. 15, 2006), or by personally assisting the child in exercising her rights as a victim, as in In re Welfare of J.A.D., 603 N.W.2d 844, 847 (Minn.App. 1999). He also argues "the supreme court has made clear that a family member is not entitled to restitution that stems from her own emotional trauma following the defendant's crime," citing to State v. Jones, 678 N.W.2d 1, 24 (Minn. 2004). His reliance on M.R.H., J.A.D., and Jones is misplaced.
With respect to the first two cases, they merely upheld restitution awards for the indicated types of losses; nothing in their language or logic precludes awards for other types of losses. With respect to Jones, it held only that a murder victim's sister could not recover lost wages due to emotional trauma because she did not fall within the statutory definition of "victim"; it did not address what types of losses are recoverable as restitution by one who does. See Palubicki, 727 N.W.2d at 667 (explaining that Jones "limits the number of people eligible for compensation under the statute" but "does not in any way limit the types of restitution recoverable under the statute"). And none of the three cases dealt with the current definition of "victim," which the legislature adopted as an expansion of that term in 2005. 2005 Minn. Laws ch. 136, art. 8, § 22; see Palubicki, 727 N.W.2d at 665 n.4 (recognizing that the amendment "broadened the definition").
In sum, because mother undisputedly is a family-member victim and her testimony amply establishes that Allison's offenses caused her to suffer losses in the form of therapy expenses and lost wages, the district court did not abuse its discretion by awarding restitution for those losses. But because the record contains no evidence of a similarly direct connection between Allison's offenses and sister's therapy expenses, the district court abused its discretion by awarding restitution for those losses. We reverse that aspect of restitution and remand for the district court to correct the restitution award.
II. The district court erred by sentencing Allison for both offenses.
Generally, "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them." Minn. Stat. § 609.035, subd. 1 (2020). The term "conduct" refers to "acts committed during a single behavioral incident." State v. Branch, 942 N.W.2d 711, 713 (Minn. 2020). Unless the state proves that the defendant's offenses were not part of a single behavioral incident, the district court must assume that they were. State v. Johnson, 653 N.W.2d 646, 652 (Minn.App. 2002). Whether a defendant's offenses were part of a single behavioral incident presents a mixed question of law and fact; where, as here, the relevant facts are undisputed, we review de novo the district court's application of the law to those facts. State v. Degroot, 946 N.W.2d 354, 365 (Minn. 2020).
In analyzing whether multiple offenses arise from a single behavioral incident, we consider "whether the conduct (1) shares a unity of time and place and (2) was motivated by an effort to obtain a single criminal objective." State v. McCauley, 820 N.W.2d 577, 591 (Minn.App. 2012) (quotation omitted), rev. denied (Minn. Oct. 24, 2012). With respect to unity of time and place, we are guided by the principle that, "[a]lthough a crime of possession is a continuing offense, it is complete when the offender takes possession of the prohibited item." State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (citation omitted). And with respect to criminal objective, we consider "whether all of the acts performed were necessary to or incidental to the commission of a single crime and motivated by an intent to commit that crime." Id. at 271 (quotation omitted).
These principles from Bakken support reversal here. On one day and in a single place, Allison moved child's underwear and took a photo of her bare genitals; that conduct constituted second-degree criminal sexual conduct and possession of child pornography. Further, although Allison did not expressly testify that he moved child's underwear (the criminal sexual conduct) for the purpose of taking and possessing the photo of her bare genitals, it was necessary to accomplishing those other acts. As such, the district court erred by sentencing Allison for both. We reverse the child-pornography sentence and remand for the district court to vacate that sentence.
Affirmed in part, reversed in part, and remanded.