In the Matter of the Welfare of: S. S. M., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1448

In the Matter of the Welfare of: S. S. M., Child.

Filed July 8, 2024
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File Nos. 27-JV-22-2911, 27-JV-22-2610

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant S.S.M.)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Sean P. Cahill, Assistant County Attorney,
Minneapolis, Minnesota (for respondent State of Minnesota)

Considered and decided by Bjorkman, Presiding Judge; Smith, Tracy M., Judge;
and Slieter, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from a juvenile disposition order, appellant S.S.M. argues that the
district court abused its discretion by ordering him to pay $2,183.19 in restitution, jointly
and severally with a codefendant, for the damage to the victim’s car and home. S.S.M.
contends that respondent State of Minnesota failed to prove that the losses to the home
were directly caused by the criminal-damage-to-property offense to which he pleaded
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guilty and that the district court’s factual findings regarding his ability to pay were clearly
erroneous. We affirm.
FACTS
In October 2022, the state charged S.S.M. by juvenile-delinquency petition with one
felony count of first- degree criminal damage to property. The state alleged that, on
September 6, 2022, S.S.M. and five other males threw landscaping rocks at victim M.A.’s
car and the windows of M.A.’s home. The landscaping rocks caused “extensive damage”
to the car and broke several windows of the home. Surveillance video captured all six males
throwing rocks at M.A.’s car. When the police arrested S.S.M. near M.A.’s home, S.S.M.
claimed that he “only threw one rock” at “a small window.”
In November 2022, the state charged S.S.M. by juvenile-delinquency petition with
another felony count of first-degree criminal damage to property as well as one felony
count of theft of a motor vehicle, one misdemeanor count of driving without a valid license,
and one misdemeanor count of reckless driving. The state alleged that, on September 11,
2022, S.S.M. stole a rental car and crashed the car into a barrier. The car was totaled, and
the barrier needed to be repaired or replaced.
Under a plea agreement resolving both cases , S.S.M. admitted to the first-degree
criminal-damage-to-property counts in exchange for stays of adjudication on those counts
and dismissal of the other counts. He also agreed to pay “joint and several” restitution for
“all of the counts in [both] cases even if they ha[d] been dismissed.” The following
exchange took place regarding restitution:
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THE COURT: [T]here will [be] a restitution investigation
where we’ll decide how much money of restitution you’ll have
to pay for the damages. . . . [I]t’s going to be joint and several,
so if some of the individuals that were involved in commission
of these offenses with you, if they pay a portion of it, then you
don’t have to pay that portion. But if they’re not able to make
payments, you would have to pay for the entirety of the
damage, okay?

[S.S.M.]: Okay.

S.S.M. was afforded the opportunity to contest the amount of restitution if it was
inappropriate.
At the disposition hearing, the district court stayed adjudication of the charges for
six months (which would be until August 2, 2023) with the possibility of an extension of
the stays for six more months. The district court also placed S.S.M. on probation subject to
several probationary conditions.
M.A. filed an affidavit for restitution for the September 6 incident. He claimed
losses in the amount of $2,183.19, comprising $750 for the insurance deductible for his
damaged car and $1,433.19 for the damage to the windows of his home. The victim of the
September 11 incident did not report the monetary amount of the damage sustained. The
Hennepin County Juvenile Probation Department prepared a restitution report in which it
recommended that S.S.M. pay the amount of restitution stated in M.A.’s affidavit. The
probation department determined that S.S.M. had no income but that he had no financial
obligations and was eligible for paid work through the probation department.
In a restitution order filed on May 2, 2023, the district court ordered S.S.M. to pay
restitution, on a joint and several basis with a codefendant, in the amount of $2,183.19 to
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M.A. by the date of the expiration of his stays of adjudication. The district court also
ordered that any restitution left unpaid at that time be reduced to a judgment against S.S.M.
In the order, the district court said that it “considered the income, resource s, and
obligations” of S.S.M. and that S.S.M. could “contact Probation for assistance with paid
work programs.”
S.S.M. moved to vacate the restitution order and requested a contested restitution
hearing. He claimed in an affidavit that it was “improper” to require him to pay $2,183.19
in restitution because he “was only involved in the damage to the car” and “did not damage
any of the house windows.” He also stated that he did not have the ability to pay the amount
of restitution ordered because he did not have a job and his family was not in a position to
help him pay. Following the contested restitution hearing held on August 23, 2023, at
which S.S.M. did not appear, the district court issued an order denying S.S.M.’s motion
and reaffirming its original restitution order.
S.S.M. appeals.
DECISION
“[I]f [a] child is found to have violated a state or local law or ordinance which has
resulted in damage to the person or property of another, the court may order the child to
make reasonable restitution for such damage” if “deemed necessary to the rehabilitation of
the child.” Minn. Stat. § 260B.198, subd. 1(a)(5) (2022). In juvenile- delinquency matters,
restitution is governed by this restitution provision of the juvenile-delinquency statute as
well as by the general restitution statutes. In re Welfare of H.A.D., 764 N.W.2d 64, 66
(Minn. 2009); see Minn. Stat. §§ 611A.04, .045 (general restitution statutes) (2022).
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“A district court has broad discretion to award restitution, and the district court’s
order will not be reversed absent an abuse of that discretion.” State v. Andersen, 871
N.W.2d 910, 913 (Minn. 2015). A district court abuses its discretion when its decis ion
regarding restitution is based on an erroneous interpretation or application of the law. State
v. Boettcher, 931 N.W.2d 376, 380 (Minn. 2019). “The district court’s factual findings will
not be disturbed unless they are clearly erroneous.” Andersen, 871 N.W.2d at 913.
S.S.M. argues that the district court’s order requiring him to pay $1,433.19 in
restitution for the damage to M.A.’s home must be reversed because the state failed to
prove that the losses were directly caused by his offense. Additionally, S.S.M. argues that
the district court’s restitution order must be reversed and remanded because the district
court’s factual findings regarding his ability to pay $2,183.19 in restitution were clearly
erroneous. We address each argument in turn.
Restitution for the Damage to the House
S.S.M. argues that his restitution obligation should be reduced by $1,433.19 —the
cost of the damage to M.A.’s house. He makes two arguments, neither of which is
persuasive.
First, S.S.M. argues that the award of restitution for the damage to the house is
erroneous because, after he filed his affidavit challenging the restitution award , the state
failed to meet its burden to show that M.A.’s house-related losses were directly caused by
his crime. See Minn. Stat. § 611A.045, subd. 3(a) (allocating evidentiary burdens).
S.S.M.’s affidavit stated, “On May 2, 2023, I was ordered to pay $2,183.19 in restitution.
I believe this restitution is improper because I was only involved in the damage to the car.
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I did not damage any of the house windows nor did I damage any part of the house or yard.”
The state did not challenge S.S.M.’s representations. S.S.M. argues that, because the state
did not prove that he damaged the house, the district court erred by ordering restitution for
those losses.
S.S.M. relies on Boettcher. In that case, the Minnesota Supreme Court stated that
the “general rule . . . is that a district court may order restitution only for losses that are
directly caused by, or follow naturally as a consequence of, the defendant’s crime.”
Boettcher, 931 N.W.2d at 381. But the supreme court in Boettcher included a qualification:
In this case, the restitution order followed a jury trial,
not a guilty plea. Principles that apply to criminal restitution in
guilty-plea cases, see, e.g., State v. Kennedy, 327 N.W.2d 3, 4
(Minn. 1982) (allowing the defendant to agree to pay
restitution for the losses of victims not named in complaint in
exchange for dismissal of charges), are inapplicable.

Id. at 381 n.5. The supreme court recognized that different principles apply depending on
whether restitution is awarded as part of a plea agreement, and it explicitly acknowledged
the principle in Kennedy that a defendant may agree to a broader scope of restitution in
exchange for the dismissal of charges. This principle reflects the rule that courts “generally
should not alter the terms of a restitution obligation negotiated as part of a plea agreement
if it materially changes the expectations of the parties to the bargain.” State v. Meredyk,
754 N.W.2d 596, 604 (Minn. App. 2008).
Here, the bargained-for expectation of the parties was that S.S.M., along with a
codefendant, would be jointly and severally responsible to pay restitution for all the losses
that M.A. suffered from the group rock-throwing incident at M.A.’s home. The district
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court therefore did not err by ordering restitution for the damage to the house even though
the state did not dispute S.S.M.’s assertion that he did not cause that specific loss.1
Second, S.S.M. argues that the district court erred by imposing joint and several
liability for M.A.’s house losses because it did so based on its erroneous factual finding
that S.S.M. agreed to “joint and several liability for any restitution award.” S.S.M. asserts
that the finding is clearly erroneous because “[he] reserved the right to contest restitution
if it was not appropriate.” A factual finding is clearly erroneous if it is “manifestly contrary
to the weight of the evidence or not reasonably supported by the evidence as a whole.” In
re Civ. Commitment of Kenney, 963 N.W.2d 214, 221 (Minn. 2021) (quotation omitted).
At the plea hearing, defense counsel outlined the terms of the plea agreement and
stated that “[t]here will be a restitution investigation and [S.S.M. will] receive that and have
an opportunity to contest that if it’s not appropriate.” Defense counsel also made clear that
the restitution “will be joint and several.” From this record, the district court could
reasonably determine that the plea agreement contemplated that, while S.S.M. would be
able to contes t the restitution amount, the obligation for the losses would be joint and

1 This case is similar to another nonprecedential but persuasive opinion from this court. See
Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that nonprecedential opinions may be
cited for their persuasive value). In State v. Wurtzberger, we affirmed the appellant’s joint
and several restitution obligation for the loss of collectible items stolen during a series of
burglaries, despite the appellant’s argument that she should be responsible only for losses
that directly resulted from the one burglary to which she pleaded guilty. No. A23-0387,
2023 WL 7119125, at *2-3 (Minn. App. Oct. 30, 2023), rev. denied (Minn. Jan. 16, 2024).
We explained, “Here, the bargained-for expectation of the parties was that Wurtzberger
would be jointly responsible to pay restitution for the value of the stolen comic books, even
though the burglary offense to which she pleaded guilty did not result in such loss.” Id.
Similar reasoning applies here.
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several. As a result, the district court’s factual finding was not clearly erroneous, and
S.S.M.’s argument fails.2
Ability to Pay
In awarding restitution, a district court must consider “(1) the amount of economic
loss sustained by the victim as a result of the offense; and (2) the income, resources, and
obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a). “[A] district court fulfills
its statutory duty to consider a defendant’s income, resources, and obligations in awarding
and setting the amount of restitution when it expressly states, . . . in writing, that it
considered the defendant’s ability to pay.” State v. Wigham, 967 N.W.2d 657, 664 (Minn.
2021); see In re Welfare of I.N.A. , 902 N.W.2d 635, 642 (Minn. App. 2017) (requiring
written findings in juvenile-delinquency cases), rev. denied (Minn. Nov. 28, 2017).
In its August 30, 2023 order denying S.S.M.’s restitution challenge and reaffirming
its earlier order, the district court found the following:
[T]he Youth’s affidavit does not indicate why he cannot take
advantage of the paid work program offered by Juvenile
Probation or otherwise obtain employment. . . . The Youth has
approximately two years and four months before he turns 19
years old on January 1, 2026. Certainly, the Youth has the
resource of time to engage in paid work to pay his restitution
obligation, and he would be required to work fewer than two
hours per week to satisfy the amount of restitution ordered by
the Court in these matters before his 19th birthday.

2 Because the district court did not abuse its discretion by ordering S.S.M. to pay restitution
for the damage to M.A.’s home pursuant to the plea agreement, we need not address the
state’s alternative argument that the district court’s restitution award is appropriate under
the direct-cause standard.
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S.S.M. concedes that “[t]he district court considered [his] ability to pay.” But he argues
that the district court erroneously found that he had “more than two years” to pay his
restitution obligation when, in fact, he only had three months—from May 2, 2023, until
August 2, 2023—at which point his stays of adjudication expired and the district court’s
jurisdiction over him terminated. The state concurs that the district court made a clearly
erroneous factual finding to the extent that it found that S.S.M. had two years left on
probation during which he could use the paid work program, but it contends that the error
was harmless.
“[E]rror without prejudice is not grounds for reversal.” State v. Cloutier, 971
N.W.2d 743, 749 (Minn. App. 2022), aff’d, 987 N.W.2d 214 (Minn. 2023). Even assuming
that the district court erroneously considered that S.S.M. had two years to pay his restitution
obligation before the district court’s jurisdiction ended, the error was harmless. The district
court reviewed the restitution report, which contained information about S.S.M.’s ability
to pay. The district court also stated that it ha d considered S.S.M.’s ability to pay. And it
noted that S.S.M. did not show that he could not obtain employment other than the paid
work program. Further, the district court determined that the amount of restitution that
S.S.M. must pay is relatively small compared to M.A.’s and the other victim’s total losses.
And, significantly, the district court contemplated the possibility of nonsatisfaction of the
obligation and ordered that the amount of any unpaid restitution would be entered as a
judgment against S.S.M. Under this approach, a failure to pay—whether by age 19 or by
August 2, 2023—would not subject S.S.M. to adjudication of the delinquency petition. As
a result, any mistake by the district court was harmless.
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We conclude that the district court adequately considered S.S.M.’s ability to pay
$2,183.19 in restitution.
Affirmed.