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State v. Graham

February 11, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
JOHN PATRICK GRAHAM, APPELLANT.



Mahnomen County District Court File No. K00126

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge

The opinion of the court was delivered by: Hudson, Judge

Affirmed

UNPUBLISHED OPINION

Appellant challenges the trial court's restitution order, arguing that: (a) the trial court failed to consider appellant's proffered affirmative defense to liability for damages; and (b)áthe record does not support the amount of restitution imposed. Because we conclude that the district court considered and properly rejected appellant's proffered defense, and because we find that the evidence supports the amount of restitution imposed, we affirm.

FACTS

On January 24, 2000, appellant John Patrick Graham (Graham) shot two dogs that he alleged he saw chasing a deer. The dogs belonged to Brad Athmann (Athmann). One dog was a German shepherd (Max) and the other, a purebred Labrador retriever (Gypsy) that Athmann had trained as a hunting dog. Gypsy was registered with the American Kennel Club and was seven-years, eight-months old at the time of her death.

On January 30, 2001, Graham was charged with two counts of first-degree criminal damage to property, in violation of Minn. Stat. §á609.595, subd.á1(3) (2000); two counts of third-degree criminal damage to property, in violation of Minn. Stat. §á609.595, subd.á2 (2000); and one count of cruelty to animals, in violation of Minn. Stat. §á343.21, subd.á7 (2000). Minn. Stat. §á97B.011 (2000), permits, under certain circumstances, the killing of a dog if the dog is seen pursuing "big game." The statute also provides that a person who kills a dog under these circumstances is not liable for damages. On April 8, 2001, Graham notified the prosecutor that he intended to rely on Minn. Stat. §á97B.011(2), as an affirmative defense, and Graham later asserted this defense at the probable-cause hearing. But the district court concluded that the defense was irrelevant at a probable-cause hearing and would be more appropriately raised at trial. No trial was held. Instead, on January 17, 2002, Graham pleaded guilty to two counts of third-degree criminal damage to property. At the guilty-plea hearing, Graham did not raise section 97B.011(2) as an affirmative defense.

On January 31, 2002, the court held a restitution hearing. Graham and the state each presented expert witnesses as to Gypsy's fair market value as a trained hunting dog.*fn1 But Graham also reasserted his affirmative defense under section 97B.011(2) and attempted to give testimony that the dogs he shot were chasing a deer. The state objected, arguing that the testimony was irrelevant because Graham had pleaded guilty and therefore had waived any defense to killing the dogs. Graham countered that, while his guilty plea acted as a waiver of his defense to killing the dogs, it did not constitute a waiver with respect to the separate question of his immunity from damages for killing the dogs. The trial court initially ruled that Graham's guilty plea foreclosed any defense to liability for damages. But the trial court subsequently requested that both parties brief the issue and advised that it would not allow Graham to assert the affirmative defense if it was not satisfied that section 97B.011(2) was applicable to the issue of restitution.

On March 6, 2002, the trial court issued its restitution order, finding that Graham should pay $2,000 in restitution for Gypsy, but not addressing the applicability of section 97B.011(2) as an affirmative defense to liability for damages. This appeal followed.

DECISION

I.

Graham argues that the trial court erred because it failed to rule on his claim that Minn. Stat. § 97B.011(2) could be asserted as an affirmative defense on the issue of liability, even though he pleaded guilty to the underlying criminal offense. We disagree.

We use a de novo standard of review to determining whether the court below erred in applying the law. State v. Basting, 572 N.W.2d 281, 282 (Minn. 1997). Statutory construction is a question of law, which this court reviews ...


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