State v. Yellow Hammer , 2022 ND 106 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 26, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 106State of North Dakota, Plaintiff and Appellee
v.
Terri Kay Yellow Hammer, Defendant and Appellant
No. 20210209
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Allen M. Koppy, State’s Attorney, Mandan, N.D., for plaintiff and appellee.
James R. Loraas, Bismarck, N.D., for defendant and appellant.
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State v. Yellow Hammer
No. 20210209
Tufte, Justice.
[¶1] Terri Yellow Hammer appeals from an amended criminal judgment
awarding restitution in the amount of $193,885.59. On appeal, Yellow Hammer
argues the district court erred in ordering restitution for future medical
expenses in the amount of $95,000. We affirm.
I
[¶2] Yellow Hammer pled guilty to criminal vehicular homicide and criminal
vehicular injury arising out of a crash with another vehicle. Conan Magilke
died at the scene, and Angela Magilke sustained significant injuries.
[¶3] The district court held a restitution hearing to determine the restitution
owed to Angela Magilke. At the hearing, Magilke testified about her medical
expenses of $92,580.59 from her first surgery. She also testified that she
requires an additional surgery. The State offered as an exhibit a note composed
by her physician stating she needs a second surgery that will cost
“approximately $95,000.” The physician’s note was admitted into evidence over
Yellow Hammer’s objection.
[¶4] The court ordered restitution in the amount of $193,885.59, which
included $95,000 for the cost of the anticipated second surgery. The court found
that “as a direct result of the criminal conduct committed by Defendant
Yellowhammer,” Magilke “has sustained a damage to her clavicle which
requires a second surgery.” Further, the court found the physician’s note
estimating the cost of the second surgery “is not speculative” because the
physician relied on the cost of her “first surgery which was known to actually
cost $92,580.59 as the indicator of the cost of the medically necessary second
surgery.”
II
[¶5] Our standard of review for orders of restitution is well established:
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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. 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 reasoned determination, or if
it misinterprets or misapplies the law.
State v. Pagenkopf, 2020 ND 33, ¶ 6, 939 N.W.2d 2. A district court possesses a
“wide degree of discretion when determining restitution awards.” Id. However,
“in determining whether or not the district court abused its discretion through
misapplication or misinterpretation of the law,” this Court applies a de novo
standard of review. Id.[¶6] “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. Article I, section
25(1)(n) guarantees to 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.” Section 12.1-32-08(1), N.D.C.C., also
provides:
In determining the amount of restitution, the court shall take into
account the reasonable damages sustained by the victim or victims
of the criminal offense, which damages are limited to those directly
related to the criminal offense and expenses actually incurred as a
direct result of the defendant’s criminal action.
Applying these constitutional and statutory provisions, we have held that “a
victim is entitled to be made whole through a reasonable restitution amount
based on the entirety of his or her actual losses.” State v. Kostelecky, 2018 ND
12, ¶ 12, 906 N.W.2d 77.
[¶7] A court “shall order restitution when it determines the defendant’s
‘criminal activities’ have caused a victim ‘pecuniary damages.’” State v.
McAllister, 2020 ND 48, ¶ 33, 939 N.W.2d 502 (citing N.D.C.C. § 12.1-32-08(1)).
The direct relationship between a criminal offense and expenses actually
incurred as a result of the defendant’s criminal action requires “an immediate
and intimate causal connection between the criminal conduct and the damages
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or expenses for which restitution is ordered.” State v. Clayton, 2016 ND 131,
¶ 5, 881 N.W.2d 239. “The determination of whether damages are directly
related to a defendant’s criminal conduct is a question of fact for the court to
decide.” McAllister, at ¶ 33. “We will not set aside a court’s finding of fact in a
restitution hearing unless it is clearly erroneous.” Id.III
[¶8] Yellow Hammer argues the district court abused its discretion by
misinterpreting the law to allow restitution for future medical expenses. This
Court has not considered whether future medical expenses may be awarded as
restitution.
[¶9] The district court relied on Pagenkopf in concluding that future medical
costs may be included in an award of restitution. In that case, the defendant
broke into the victim’s car and damaged the radio, speedometer glass, and
HVAC controls. Pagenkopf, 2020 ND 33, ¶ 2 (plurality opinion). Before the
restitution hearing, the victim was involved in a car accident, and the
insurance carrier paid $2,000 for the damages as a total loss. Id. at ¶ 3. The
victim had not repaired any of the damages the defendant had caused before
the accident occurred, and the insurance carrier had not reduced its payment
to account for the damages caused by the defendant. Id. at ¶¶ 3–4. At the
restitution hearing, the State offered into evidence an estimate to repair the
damages done to the victim’s car that were caused by the defendant. Id. at ¶ 4.
“Even though the victim did not incur any expenses for having the damages to
her car repaired,” this Court held that “she was nonetheless damaged by [the
defendant’s] vandalism” because “the victim was forced to drive a car with a
damaged radio, speedometer glass, and HVAC controls for two months.” Id. at
¶ 11. We further stated that “[a] victim may sustain damages without having
incurred any expense.” Id. at ¶ 9 (plurality); ¶ 20 (McEvers, J., concurring);
¶ 25 (Crothers, J., dissenting). “The fact that the victim did not incur any
actual expenses because she chose not to repair the damages or could not afford
to repair the damages is not dispositive of whether she sustained damages and
is entitled to restitution.” Id. at ¶ 11.
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[¶10] Although Pagenkopf involved property damages, we conclude that its
reasoning applies to future medical expenses. Pagenkopf established that a
victim need not incur an expense in order to be awarded restitution damages.
Id. at ¶ 9. For example, if the victim has not repaired the damages she suffered
prior to the restitution hearing, this does not mean she has not “actually
incurred” any damages. This was the case in Pagenkopf because the victim did
not repair her car before the restitution hearing; however, we held that this did
not preclude an award of restitution. Id. at ¶¶ 11–12. Therefore, we hold that
as long as a victim suffers damages which are a direct result of the defendant’s
criminal action, the victim may be awarded restitution before actually
incurring any expense. See State v. Falkenberg, 2021 S.D. 59, ¶ 63, 965 N.W.2d
580 (recognizing that “the court may order Falkenberg to pay restitution for
expenses that had already been incurred at the time of sentencing as well as
the cost of ascertainable counseling expenses which, although not yet incurred,
had been requested by the State at the time of sentencing”).
[¶11] Applying the shared rationale of the separate opinions in Pagenkopf, we
conclude that the court did not err in ordering restitution for Magilke’s
ascertainable future medical expenses. Although Magilke has not yet incurred
the expenses for a second surgery, she testified that this is because she cannot
afford the second surgery as a result of her current medical bills. The court
found Magilke has suffered a severe clavicle injury requiring multiple
surgeries and leaving her uninsurable since the car crash caused by Yellow
Hammer’s criminal conduct. While Magilke’s situation is a bit different from
Pagenkopf because there the victim had not incurred any expenses and here
Magilke has already incurred expenses for the first surgery, the logic of
Pagenkopf still applies. Therefore, the fact that the second surgery had not
been performed prior to the restitution hearing does not preclude an award of
restitution.
[¶12] The plain language of our restitution statutes also supports our
conclusion that future medical costs may be awarded as restitution damages.
The purpose of our restitution laws “is to ensure the victim of a crime is made
whole.” Kostelecky, 2018 ND 12, ¶ 12. Further, through our restitution laws, “a
victim is entitled to be made whole through a reasonable restitution amount
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based on the entirety of his or her actual losses.” Id. (emphasis added). On the
basis of the testimony and evidence received at the restitution hearing,
the district court found that a revision surgery is needed to make the victim
whole in order to repair the bone that did not heal properly from the first
surgery. Because the entirety of Magilke’s actual losses includes two surgeries,
the court found the restitution amount must include expenses for both
surgeries, one already incurred and one found to be necessary and to have an
ascertainable future cost. Lastly, the plain language of our crime victims’ rights
amendment provides victims the “right to full and timely restitution . . . for all
losses suffered by the victim as a result of the criminal or delinquent conduct.”
N.D. Const. art. I, § 25(1)(n) (emphasis added). The district court found this
second surgery is needed to complete the repair of Magilke’s clavicle injury,
which was a direct result of Yellow Hammer’s criminal conduct. Magilke is
entitled to full restitution for all losses, which includes expenses for both
surgeries. We conclude the court did not abuse its discretion in awarding
restitution for the second surgery.
IV
[¶13] Yellow Hammer also takes issue with the form and substance of the
physician’s note expressing an opinion on the cost of the second surgery. She
additionally argues the letter “was not definite as to the amount of future
medical expenses or as to whether additional surgery was necessary.”
[¶14] The physician’s note providing an estimate for the second surgery
appears to be from progress notes included in Magilke’s medical records. While
the informal nature of the physician’s note may not satisfy the evidence
requirements in order to be admitted as evidence in a trial, the North Dakota
Rules of Evidence do not apply to sentencing proceedings. N.D.R.Ev.
1101(d)(3)(D). Therefore, we conclude that the court did not err in admitting
the physician’s note into evidence at the restitution hearing.
[¶15] Additionally, the court did not err in finding the physician’s note was not
speculative. The note included an estimate for the second surgery in a fixed
amount. It appears the physician based the estimate on the cost of Magilke’s
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first surgery, which was known to actually cost $92,580.59. The note states
that “[p]atient cannot proceed with surgical intervention at this time due to
financial reasons.” The physician’s note in conjunction with Magilke’s
testimony supports the district court’s conclusion that an additional “revision”
surgery is needed to repair physical damage to her clavicle, which was injured
as a direct result of the criminal conduct of Yellow Hammer. Therefore, on the
basis of these facts, the court did not err in awarding restitution for future
medical expenses.
V
[¶16] The amended criminal judgment ordering restitution is affirmed.
[¶17] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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