Opinion
No. A06-1377.
Filed September 4, 2007.
Appeal from the District Court, Ramsey County, File No. K2-05-3937.
Lori Swanson, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Jessica Benson Merz Godes, Assistant State Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Following a jury trial, appellant Yorel A. Sandlin was found guilty of first-degree burglary for breaking into the home of one of his neighbors. See Minn. Stat. § 609.582, subd. 1(a) (2004) (entry of dwelling without consent and with intent to commit crime, while another person is in dwelling, constitutes first-degree burglary). The district court sentenced him to 45 months in prison, the presumptive sentence under the guidelines, and ordered him to pay $113.43 in restitution for a broken window.
Because the district court did not abuse its discretion in allowing the state to present rebuttal testimony and because appellant failed to properly challenge the request for restitution, we affirm.
DECISION I.
Appellant challenges the district court's decision to allow the state to present rebuttal testimony. Rebuttal evidence consists of evidence that explains, contradicts, or refutes evidence presented by the defendant. State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003). "Its purpose is to cut down the defendant's case and not merely to confirm the case in chief through restatement or new facts." State v. Walker, 306 Minn. 105, 112, 235 N.W.2d 810, 815 (1975). The district court has discretion to determine what constitutes proper rebuttal evidence. State v. Swanson, 498 N.W.2d 435, 440 (Minn. 1993).
In Swanson, the defendant testified that he and a companion were "cruising" around town looking for a party and denied following anyone that night; the state was allowed to call a rebuttal witness, who testified that defendant and his companion had walked toward her that night, spoken to her in a menacing tone, and watched her until she was inside her house. Id. The supreme court concluded that the rebuttal testimony was proper because it tended to rebut the defendant's claim that he was not stalking women that night. Id.
Here, the district court allowed the state to call one of the neighbor's daughters as a rebuttal witness after the sole defense witness testified that appellant and the daughter were friends and suggested that the daughter may have given appellant permission to enter the home on the morning of the incident. Appellant insists that, unlike the rebuttal testimony in Swanson, the testimony presented here by the neighbor's daughter offered entirely new information that the state had neglected to present in its case-in-chief. We disagree.
The district court allowed the rebuttal testimony to challenge the testimony of the sole defense witness that suggested appellant and the daughter were such good friends that appellant was either given permission to enter the home or could have reasonably believed that he had permission. Because the daughter's testimony was properly admitted to rebut the testimony of the defense witness, the district court did not abuse its discretion.
II.
Appellant challenges the district court's decision ordering him to pay $113.43 in restitution to replace the broken basement window. But appellant failed to request a hearing within 30 days after sentencing, as required by Minn. Stat. § 611A.045, subd. 3(b) (2004) ("An offender may challenge restitution, but must do so by requesting a hearing . . . within 30 days of sentencing[.] The hearing request must be made in writing and filed with the court administrator. . . . A defendant may not challenge restitution after the 30-day time period has passed."). In addition, appellant has not submitted a "detailed sworn affidavit" in which he challenges the amount of restitution. See Minn. Stat. § 611A.045, subd. 3(a) (2004). Appellant thus has failed to meet his burden of production and cannot now challenge the restitution order. See State v. Cram, 718 N.W.2d 898, 907 (Minn. 2006).
Finally, even if considered, appellant's challenges must be rejected. In particular, appellant argues that the restitution order must be vacated because no factual basis was offered to show that appellant caused the damage or to support the amount claimed and because the district court failed to consider appellant's financial circumstances. But both the homeowner and her son testified that the window was broken on the day of the burglary, and the homeowner submitted an affidavit stating that her out-of-pocket loss resulting from the crime was $113.43 for "[b]asement window destroyed during break-in." At the sentencing hearing, the district court stated that "there was clearly a broken basement window" and that any payment of restitution and fees should be deducted from appellant's prison wages. The record thus provides a factual basis for restitution and shows that the district court considered appellant's financial circumstances.
Appellant's conviction and sentence are therefore affirmed.