                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0275

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                   Berry Alan Willis,
                                      Appellant.

                                Filed August 15, 2016
                   Affirmed in part, reversed in part, and remanded
                                  Bjorkman, Judge


                            Hennepin County District Court
                               File No. 27-CR-14-6683

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth A. Scoggin, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Peterson, Judge; and

Bjorkman, Judge.

                                    SYLLABUS

      The Minnesota Rules of Evidence do not apply to restitution hearings.

                                     OPINION

BJORKMAN, Judge

      Appellant challenges the restitution award in this aggravated forgery case, arguing

that the district court erred by (1) considering hearsay evidence of the victim’s economic
loss and (2) ordering restitution for expenses the victim incurred prior to appellant’s

charged conduct. Because the rules of evidence do not apply to restitution hearings but

restitution awards must reflect loss directly caused by the offense, we affirm in part,

reverse in part, and remand.

                                         FACTS

       On October 28, 2013, appellant Berry Alan Willis filed a quitclaim deed in the

name of P.H. to transfer residential property he previously lost in foreclosure back to

himself. The state charged Willis with aggravated forgery. A jury found Willis guilty,

and the district court imposed a stayed sentence with probation conditions.          At the

sentencing hearing, the district court reserved the issue of restitution for 90 days. After

the court ordered him to pay $25,400 in restitution, Willis requested a contested hearing.

       At the restitution hearing, victim P.H.’s son, J.H., testified that, in addition to

filing the forged quitclaim deed, Willis engaged in other behavior that damaged P.H.

After restoring the property, P.H. put it on the market in August 2013. But she quickly

took it off the market because Willis harassed potential buyers by entering the property,

claiming to be the rightful owner, and threatening to call the police. The property was

eventually relisted in September 2013 and ultimately sold in February 2014.

       J.H. also testified about various costs P.H. incurred in relation to the property.

P.H. borrowed $100,000 to buy the property in March 2013, and had monthly expenses,

including loan payments, taxes, utilities, and insurance, totaling $1,457. Over Willis’s

objection, J.H. produced a letter from P.H.’s lawyer stating that P.H. incurred $2,000 in

attorney fees to cure the title defect caused by the forged deed. The district court ordered


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Willis to pay P.H. $10,742 in restitution.        This amount includes $2,000 for P.H.’s

attorney fees, and $8,742 representing P.H.’s monthly payments from August 2013 to

February 2014. Willis appeals.

                                          ISSUES

I.     Did the district court err by considering hearsay evidence at the restitution
       hearing?

II.    Did the district court err by ordering restitution for loss P.H. incurred before Willis
       committed the forgery?

                                        ANALYSIS

I.     The Minnesota Rules of Evidence do not apply to restitution hearings.

       Minnesota Rule of Evidence 1101 provides that the rules of evidence generally

apply to all Minnesota court proceedings. But rule 1101 states that the rules (other than

those involving privilege) do not apply to:

                      Proceedings for extradition or rendition; probable
              cause hearings; sentencing, or granting or revoking probation;
              issuance of warrants for arrest, criminal summonses, and
              search warrants; and proceedings with respect to release on
              bail or otherwise.

Minn. R. Evid. 1101(b)(3).        Our analysis turns on whether a restitution hearing

constitutes “sentencing” under Minn. R. Evid. 1101(b)(3). We review the interpretation

of the rules of evidence de novo. State v. McCurry, 770 N.W.2d 553, 559 (Minn. App.

2009), review denied (Minn. Oct. 28, 2009).

       Willis correctly asserts that rule 1101(b)(3) does not expressly exempt restitution

hearings from the rules of evidence. But that does not end our inquiry. Our legislature

established restitution as part of a defendant’s sentence. “A victim of a crime has the


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right to receive restitution as part of the disposition of a criminal charge . . . against the

offender if the offender is convicted.” Minn. Stat. § 611A.04, subd. 1(a) (2012). And

Minn. Stat. § 609.10, subd. 1(a)(5) (2012), provides that court-ordered restitution is a

sentence that may be imposed upon conviction of a felony. Minnesota courts have

consistently interpreted these statutes to mean that restitution is part of a criminal

sentence. See Evans v. State, 880 N.W.2d 357, 359 (Minn. 2016); see also State v.

Gaiovnik, 794 N.W.2d 643, 648 (Minn. 2011). Because the obligation to pay restitution

is a part of a sentence, and the rules of evidence do not apply to sentencing proceedings,

it follows that the evidentiary rules do not apply to restitution hearings.

       This conclusion is consistent with persuasive authority from the federal courts.

The corresponding Federal Rule of Evidence provides that the rules (except for those on

privilege) do not apply to “miscellaneous proceedings such as . . . sentencing.” Fed. R.

Evid. 1101(d). Because the text of the federal rule is similar to our own, we may look to

federal caselaw for guidance in construing the Minnesota rule.           State v. Head, 561

N.W.2d 182, 186 (Minn. App. 1997), review denied (Minn. May 28, 1997).

       Federal courts have interpreted Fed. R. Evid. 1101(d) to mean that the rules of

evidence do not apply to restitution hearings. See, e.g., United States v. Ogden, 685 F.3d

600, 606 (6th Cir. 2012) (holding that disputes as to evidence admitted at a restitution

hearing are meritless because the rules of evidence do not apply during sentencing

proceedings); United States v. Yeung, 672 F.3d 594, 606 (9th Cir. 2012) (holding that

because the rules of evidence, including the rule against hearsay, do not apply to

sentencing hearings, the district court did not err in relying on hearsay in ordering


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restitution), abrogated on other grounds by Robers v. United States, 134 S. Ct. 1854,

1857-59 (2014).

       This analysis also comports with the caselaw of other states. See, e.g., People v.

Matzke, 842 N.W.2d 557, 559-60 (Mich. Ct. App. 2013) (holding that because restitution

hearings are a part of sentencing and have nothing to do with a defendant’s guilt or

innocence, the rules of evidence do not apply); State v. Ruttman, 598 N.W.2d 910, 911

(S.D. 1999) (“Restitution is similar to other criminal sanctions and requires no greater

procedural protections than those normally employed in sentencing.”).

       Willis likens restitution hearings to Blakely trials. We are not persuaded. In

holding that the rules of evidence apply to Blakely trials, our supreme court distinguished

a “sentencing” as contemplated when rule 1101 was adopted in 1977, and a “jury

sentencing trial,” which flowed from Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). State v.

Rodriguez, 754 N.W.2d 672, 684 n.8 (Minn. 2008). In contrast, restitution was an aspect

of sentencing prior to the adoption of rule 1101. In 1977, the same year our supreme

court adopted rule 1101, the legislature amended Minn. Stat. § 609.135, subd. 1 to

explicitly permit district courts to order restitution as a condition of probation. Minn.

Stat. § 609.135, subd. 1 (Supp. 1977). But district courts had been doing so for years.

See State v. Glewwe, 307 Minn. 513, 515, 239 N.W.2d 479, 480 (1976) (noting that

restitution was ordered as a condition of probation in a theft case, but was improper

because the stolen items had been returned); State ex rel. Ahern v. Young, 273 Minn. 240,

241, 141 N.W.2d 15, 16 (1966) (listing restitution as a condition of probation imposed


                                            5
following a forgery conviction); see also Minn. Stat. § 609.135 (1976) (stating that a

court may stay execution of sentence and place an individual on probation “on such terms

as the court may prescribe”). Thus, unlike Blakely trials, the obligation to pay restitution

was understood to be part of a criminal sentence at the time rule 1101 was adopted.

Moreover, our supreme court recently observed that Blakely trials—whether decided by a

jury or court—are functionally equivalent to the adjudication-of-guilt phase of a

defendant’s criminal trial. State v. Sanchez-Sanchez, 879 N.W.2d 324, 330 (Minn. 2016).

The supreme court reasoned that “there is a substantive difference between an ordinary

sentencing hearing following a trial or a guilty plea and a sentencing trial where

adjudicatory facts are determined.” Id. at 329. Indeed, the special verdicts reached in a

Blakely trial are among the factors a district court considers in determining a defendant’s

sentence. Id. at 330. In contrast, restitution hearings do not determine a defendant’s guilt

or innocence. Rather, they determine the extent to which a victim should be compensated

for loss incurred as a result of the criminal conduct for which a defendant has been found

guilty beyond a reasonable doubt. See State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984)

(“In our opinion, the word ‘restitution’ connotes restoring or compensating the victim for

his loss.”).

       In sum, because the rules of evidence do not apply to restitution hearings, the

district court did not err by considering hearsay evidence of the legal fees P.H. incurred

as a result of Willis’s offense.




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II.    The district court abused its discretion by awarding restitution for damages
       that were not caused by the charged offense.

       District courts have broad discretion in awarding restitution. State v. Tenerelli,

598 N.W.2d 668, 671 (Minn. 1999).          “But determining whether an item meets the

statutory requirements for restitution is a question of law that is fully reviewable by the

appellate court.” State v. Nelson, 796 N.W.2d 343, 346-47 (Minn. App. 2011) (quotation

omitted).

       A victim may request restitution if the defendant is convicted of a crime. Minn.

Stat. § 611A.04, subd. 1(a). When considering restitution requests, courts look at, among

other factors, “the amount of economic loss sustained by the victim as a result of the

offense.” Minn. Stat. § 611A.045, subd. 1(a)(1) (2012). This court has interpreted the

statute to require that the claimed loss be “directly caused by the conduct for which the

defendant was convicted.” State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999)

(quotation omitted); see also State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986)

(holding that restitution is proper for “victim’s losses [that] are directly caused by

appellant’s conduct for which he was convicted”).

       Willis does not dispute that P.H. should recover her monthly expenses between the

time of the forgery and the sale of the home (November 2013 to February 2014). But he

contends that the district court erred by holding him responsible for expenses P.H.

incurred during the months prior to his offense. This argument has merit. In Nelson, we

held that a district court errs when it does not “differentiate between losses resulting from




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appellant’s conduct that occurred before and those that occurred during the charging

period in setting the amount of restitution.” 796 N.W.2d at 348.

       The state contends that Nelson does not set out a clear rule preventing victims

from receiving restitution for expenses incurred prior to the offense. And the state urges

the court to affirm restitution for monthly expenses dating back to Willis’s earlier

harassment because his desired ends—reclaiming property he believed to be his—were

consistent with those of his charged offense. We are not persuaded. Willis was charged

with committing aggravated forgery on October 28, 2013. The charge was based on

conduct entirely separate from Willis’s uncharged harassing behavior. See Minn. Stat.

§ 609.625, subd. 3 (2012) (“Whoever, with intent to defraud, utters or possesses with

intent to utter any forged writing or object mentioned in subdivision 1 . . . knowing it to

have been so forged, may be sentenced as provided in subdivision 1.”). Accordingly, any

loss P.H. sustained prior to Willis’s forged deed cannot be said to have been directly

caused by the charged offense. Because Willis is not responsible for economic loss P.H.

sustained prior to the date of the forgery, we reverse and remand for the district court to

reduce the restitution award accordingly.

                                     DECISION

       Because the Minnesota Rules of Evidence do not apply to restitution hearings, the

district court did not err in considering hearsay evidence of P.H.’s economic loss. But the

district court erred by awarding restitution for costs incurred prior to Willis’s charged

conduct. Accordingly, we affirm in part, reverse in part, and remand.

       Affirmed in part, reversed in part, and remanded.


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