               Filed 06/29/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 151

State of North Dakota,                                 Plaintiff and Appellee
     v.
Mackenzie Marie Harstad,                           Defendant and Appellant

                                No. 20190400

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Megan J. K. Essig, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee.

Rhiannon L. Gorham, Grand Forks, ND, for defendant and appellant.
                               State v. Harstad
                                 No. 20190400

Jensen, Chief Justice.

[¶1] Mackenzie Harstad appeals from a district court’s judgment ordering
restitution for unrecovered personal property. The personal property was in a
vehicle at the time the vehicle was stolen, but was not in the vehicle seven days
later when Harstad was arrested for, and charged with, possession of the stolen
vehicle. Harstad was not charged with the theft of the vehicle. Harstad argues
the district court abused its discretion by ordering restitution for the
unrecovered personal property because there is no immediate and intimate
causal connection between the criminal conduct and the loss of the personal
property. We reverse and remand for a redetermination of the amount of
restitution.

                                       I

[¶2] Harstad was charged with and pleaded guilty to possession of a stolen
vehicle, in violation of N.D.C.C. § 12.1-23-02(3). The State sought an order for
restitution for towing expenses and the value of missing gas, a license plate,
and several unrecovered items of personal property located in the victim’s
vehicle at the time the vehicle was stolen.

[¶3] Harstad agreed to restitution for the towing expenses and the value of
the gas and license plate, but contested the imposition of restitution for the
unrecovered items of personal property. Harstad argued she could not be held
responsible for the missing personal property because she was only convicted
of possessing the stolen vehicle and there is no immediate and intimate causal
connection between her criminal conduct of possessing the stolen vehicle and
the loss of the personal property. The district court ordered Harstad to pay
restitution in the amount of $2,104, which included the value of the
unrecovered items of personal property. Harstad appealed the court’s
restitution award.




                                       1
                                       II

[¶4] Harstad argues the district court abused its discretion in awarding
restitution for the unrecovered property in the vehicle at the time the vehicle
was stolen. District courts possess a wide degree of discretion when
determining restitution awards. State v. Walker, 2019 ND 292, ¶ 5, 936
N.W.2d 45 (citing State v. Rogers, 2018 ND 244, ¶ 23, 919 N.W.2d 193). “A
district court’s award of restitution to a crime victim is made under N.D. Const.
Art I, § 25(1)(n) and N.D.C.C. § 12.1-32-08.” Id.

[¶5] “In analyzing whether to order restitution, N.D.C.C. § 12.1-32-08(1)(a)
requires the district court to consider the ‘reasonable damages sustained by
the victim.’” State v. Carson, 2017 ND 196, ¶ 6, 900 N.W.2d 41. Section
12.1-32-08(1), N.D.C.C., limits damages to those directly related to the
criminal offense and expenses actually incurred as a direct result of the
defendant’s criminal action. This Court has interpreted “directly related” and
“direct result” as requiring an immediate and intimate causal connection
between the criminal conduct and the damages or expenses for the restitution
imposed upon the defendant. Carson, at ¶ 6 (quoting State v. Pippin, 496
N.W.2d 50, 52-53 (N.D. 1993)).

[¶6] “Section 25(1)(n), N.D. Const. Art I, provides crime victims, ‘[t]he right
to full and timely restitution in every case and from each offender for all losses
suffered by the victim as a result of the criminal or delinquent conduct.’” State
v. Bruce, 2018 ND 45, ¶ 11, 907 N.W.2d 773. Section 25(1)(n) does not change
the restitution that a district court may order under N.D.C.C. § 12.1-32-
08(1)(a). Id. (citing State v. Kostelecky, 2018 ND 12, ¶ 12, 906 N.W.2d 77).

[¶7] When reviewing a restitution order, we look to whether the district court
acted within the limits set by statute, which is a standard similar to our abuse
of discretion standard. Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77 (quoting
State v. Tupa, 2005 ND 25, ¶ 3, 691 N.W.2d 579). “A district court abuses its
discretion if it acts in an arbitrary, unreasonable, or unconscionable manner,
if its decision is not the product of a rational mental process leading to a
reasonable determination, or if it misinterprets or misapplies the law.” Id. We
review questions of law de novo in determining whether the district court

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abused its discretion through misapplication or misinterpretation of the law.
Id.

                                     III

[¶8] Harstad argues the district court ordering restitution for unrecovered
personal property located in the vehicle at the time the vehicle was stolen goes
beyond the limits set by N.D.C.C. § 12.1-32-08(1). She asserts the loss of the
personal property is not “directly related” to or a “direct result” of her
possession of the stolen vehicle because an immediate and intimate causal
connection does not exist between her criminal conduct of possessing the stolen
vehicle and the loss of the personal property.

[¶9] This Court has previously held that a defendant convicted of possession
of stolen property cannot be held liable to make restitution for losses a victim
incurred as a result of a burglary, committed by someone other than the
defendant, including unrecovered personal property and cash. State v. Pippin,
496 NW.2d 50, 53 (N.D. 1993). In Pippin, this Court reversed a restitution
order requiring a defendant, who was convicted of possessing stolen property
from a burglary, to pay damages for unrecovered property from the same
burglary which was not in the possession of the defendant. Id. We did
recognize the defendant could be held liable if stolen property in the
defendant’s possession was returned damaged to its owners or damages were
sustained as result of temporary loss of use of the property. Id. Our holding
in Pippin was guided by our conclusion there was not an immediate and
intimate causal connection between the criminal conduct of possessing stolen
property and the loss of other personal property during the burglary. Id.

[¶10] The State argues our decision in Pippin supports the restitution ordered
in this case because a connection between Harstad and the unrecovered
personal property can be reasonably inferred from the record. The State
argues this Court recognized that a sufficient inference of a connection can
arise when the property possessed by the defendant once contained the items
which were not recovered. In this case, the State contends the inference of a
connection arises because the unrecovered personal property was inside the



                                       3
vehicle when it was stolen. The State cites to the following discussion in Pippin
as support for its argument:

      The damages for the unrecovered property are not immediately
      connected to Joan’s conduct. Moreover, a close causal connection
      between Joan’s act and the missing property cannot reasonably be
      inferred from the record. For example, the record does not show
      that one or more of the items Joan possessed once contained other
      items which were not recovered. See State v. Mead, 67 Wash.App.
      486, 836 P.2d 257 (Wash.Ct.App. 1992) [reasonable to infer from
      possession of display cases in which coin collection was kept, that
      loss of coins resulted from possession].

Pippin, 496 NW.2d 50, 53 (N.D. 1993).

[¶11] Our reference of the Washington Court of Appeals decision in Mead was
not part of the holding necessary for our decision in Pippin, was dictum, and
lacks formal precedential value. We also note the Washington Court of
Appeals subsequently distinguished its decision in Mead from a case involving
circumstances similar to those presented in this case. State v. Tetters, 81
Wash.App. 478, 914 P.2d 784 (Wash.Ct.App. 1996) (concluding the damages
for unrecovered personal property originally located in a stolen vehicle were
not directly related to the possession of the stolen vehicle). We decline to
extend our prior reference to the Washington Court of Appeals decision in
Mead to the facts of this case.

[¶12] The State also cites to our recent decision finding a sufficient connection
between the criminal conduct of possessing stolen property and damage to that
same property. State v. Walker, 2019 ND 292, ¶ 12, 936 N.W.2d 45. In Walker,
this Court affirmed a restitution order requiring the defendant, who was
convicted of possessing a stolen motorcycle, to pay restitution for the damages
to the motorcycle. Id. We concluded the district court acted within limits set
by N.D.C.C. § 12.1-32-08(1) because the restitution was for damages to the
property that the criminal offense was based on. Id. Citing Pippin, we
recognized damage to the stolen property possessed by the defendant or
compensation for the loss of the use of the stolen property was sufficiently



                                        4
connected to the criminal act to support an order for restitution. Id. at ¶ 9. We
decline to extend our holding in Walker to the circumstances of this case.

[¶13] Section 12.1-32-08(1), N.D.C.C., limits restitution in this case to the loss
that was directly related to Harstad’s criminal conduct, the possession of the
stolen vehicle. There is nothing in the record to indicate an immediate causal
connection between the unrecovered items in the vehicle at the time it was
stolen and Harstad’s conviction for possession of the stolen vehicle. We
conclude the district court abused its discretion awarding restitution for the
unrecovered property located in the vehicle at the time the vehicle was stolen.

                                       IV

[¶14] The district court abused its discretion awarding restitution for the
unrecovered property located in the vehicle at the time the property was stolen.
We reverse the district court’s judgment and remand for a determination of the
appropriate amount of restitution, excluding the unrecovered property located
in the vehicle at the time the vehicle was stolen.

[¶15] Jon J. Jensen, C.J.
      Lisa Fair McEvers
      Daniel J. Crothers
      Gerald W. VandeWalle
      Jerod E. Tufte




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