State v. Davis

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                           DECEMBER 8, 2022
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                  Plaintiff and Appellee
      v.
Sheldon George Davis,                               Defendant and Appellant

                                No. 20220220

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Tristan J. Van de Streek, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Muriel Rott (argued), third year law student, under the Rule of Limited
Practice of Law by Law Student, and Carmell F. Mattison (appeared),
Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                State v. Davis
                                No. 20220220

Jensen, Chief Justice.

[¶1] Sheldon Davis appeals from a district court judgment awarding
restitution. We conclude the district court did not abuse its discretion in
awarding restitution in the amount of $3,550.00.

                                        I

[¶2] Davis was found guilty of the murder of Denise Anderson, endangering
by fire or explosion, and arson. The district court ordered restitution without a
hearing. We remanded in State v. Davis, 

, 

, holding
the district court erred in ordering restitution without a hearing. On remand,
the district court held a hearing to determine restitution. The State presented
evidence that a bill for the funeral of Denise Anderson was sent to Nicholas
Berlin, Denise Anderson’s son. The State also presented testimony from the
funeral director of West Funeral Home, Craig Olsen. Olsen testified the total
bill for the funeral was $3,550.00, the bill was sent to her son, Nicholas Berlin.
Olsen testified he was not certain if Berlin or another family member paid the
bill, but the bill had been paid in full. The district court found there was an
actual cost incurred of $3,550.00 for Denise Anderson’s funeral and awarded
restitution in that amount to Nicholas Berlin.

                                       II

[¶3] Davis argues the district court abused its discretion in ordering
restitution to be paid to Nicholas Berlin.

      This Court’s review of a restitution order is limited to whether the
      district court acted within the limits set by statute, which is
      similar to an abuse of discretion standard. State v. Bingaman,
      

, 

; State v. Kensmoe, 

, 

. 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. Bingaman, at ¶ 4; Kensmoe, at ¶ 7. “[T]he State has the

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      burden in a restitution hearing to prove the amount of restitution
      by a preponderance of the evidence.” State v. Gill, 

, 

. State v. Tupa, 

, 

. We review questions of law de novo in determining whether
      or not the district court abused its discretion through
      misapplication or misinterpretation of the law. See State v. Knox,
      

, 

.

State v. Kostelecky, 

, 

. When ordering restitution,
the district court is to follow the framework set forth in N.D.C.C. § 12.1-32-08
which provides the court consider:

      [T]he reasonable damages sustained by the victim. These 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. This Court has interpreted “directly related” and
      “direct result” in this section as requiring an immediate and
      intimate causal connection between the criminal conduct and the
      damages or expenses for which restitution is ordered.

State v. Carson, 

, 

 (internal citations and
quotations omitted).

[¶4] Davis, in his briefing to this Court, argues the district court misapplied
N.D.C.C. § 12.1-32-08 by not determining whether Berlin directly paid for the
funeral expense and there is insufficient evidence in the record to establish
Berlin paid for the funeral. Davis contends the district court could not have
properly determined Berlin actually incurred a recoverable loss under
N.D.C.C. § 12.1-32-08(1) because there was no evidence presented which
showed Berlin was the person who paid for the funeral. Despite the numerous
issues raised by Davis during oral argument, we will limit our review to the
issue properly raised in the brief. See Roise v. Kurtz, 

, 

 (“we do not consider issues raised for the first time at oral
argument on appeal”).

[¶5] The State argues our decision in State v. Bruce, 

, 

 is dispositive. In Bruce, the defendant argued the district court improperly
awarded restitution for the funeral expenses of the victim because the father


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of the victim received money from a life insurance policy to pay for the funeral
expenses. Id. at ¶ 7. This Court rejected Bruce’s argument concluding the
funeral expenses of the victim were a direct result of the criminal actions of
Bruce as required by N.D.C.C. § 12.1-32-08(1)(a) (2009) and Bruce provided no
authority to indicate the receipt of life insurance proceeds changes the analysis
of whether an expense was actually incurred as a direct result of the
defendant’s conduct. Id. The State contends that our decision in Bruce provides
that it is unnecessary for the State to establish from whom the payment for a
loss is provided.

[¶6] It is unnecessary to reach the argument asserted by the State. In a
restitution hearing the State must meet its burden of proof by a preponderance
of the evidence. Kostelecky, 

; Gill, 

. “We will
not set aside a court’s finding of fact in a restitution hearing unless it is clearly
erroneous.” State v. McAllister, 

, 

. We will
determine a finding of fact to be clearly erroneous if it is induced by an
erroneous view of the law, if it is not supported by any evidence, or if, although
there is some evidence to support the finding, we are left with a definite and
firm conviction a mistake has been made. Kuntz v. State, 

. As
noted in the following paragraph, there is sufficient evidence in the record to
support a finding Berlin paid the funeral bill and is entitled to restitution.

[¶7] Davis was convicted of murdering Denise Anderson. As a direct result of
her death, funeral expenses were incurred. A bill for the funeral was sent to
her son. The funeral bill was Berlin’s debt. The funeral bill was subsequently
paid. Although the funeral director did not know who actually paid the bill and
the State did not offer direct evidence Berlin paid the bill, we conclude the
district court’s finding Berlin was entitled to restitution equal to the funeral
bill is supported by the billing statement in Berlin’s name, addressed to Berlin,
and paid after being sent to Berlin. The court’s finding was not induced by an
erroneous view of the law, it is supported by evidence in the record, and we are
not left with a definite and firm conviction a mistake has been made.




                                         3
                                  III

[¶8] We affirm the district court’s award of restitution in the amount of
$3,550.00 to Nicholas Berlin.

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




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