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State v. Wilkens

December 02, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
TERRY BURNIE WILKENS, APPELLANT.



Isanti County District Court File No. K701120

Considered and decided by Stoneburner , Presiding Judge, Willis , Judge, and Shumaker, Judge.

SYLLABUS BY THE COURT

When a district court orders a parent to pay restitution to a county for the cost of foster care that was required as a result of the parent's criminal acts against a child, the district court should determine the amount of the award under the procedures set out in Minn. Stats. §§ 611A.045, subd. 1, and 260C.331, subd. 1(c).

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

Affirmed in part, reversed in part, and remanded

OPINION

Appellant Terry Burnie Wilkens challenges his conviction of criminal sexual conduct in the fourth degree for engaging in sexual contact with his minor daughter, arguing that the district court erred by failing to suppress statements he made in a non-custodial interrogation and evidence obtained pursuant to a search warrant that was based on those statements. He also argues that the district court erred in awarding restitution to Isanti County for the cost of his daughter's foster care and awarding restitution for the cost of personal property allegedly disposed of by respondent, unrelated to the sexual offense. We affirm the district court's denial of appellant's motion to suppress, reverse the restitution award for property allegedly destroyed in an act not related to the crime of which appellant was convicted, and remand for a recalculation of the restitution award to Isanti County.

FACTS

Appellant's 16-year-old daughter, TW, ran away from home. The next day she was found and was interviewed by a child protection investigator (Zierden) and an investigator from the Isanti County Sheriff's Department (Akers). TW claimed that she ran away because of three incidents of sexual abuse by her father. TW was initially placed on a 72-hour child-protection hold and was later placed in foster care.

Ackers and Zierden asked appellant to come to an interview to discuss his daughter's circumstances. Appellant claims he was not informed of the allegations of sexual abuse. Akers claims he was so informed. Appellant voluntarily appeared for an interview by Akers and Zierden. Appellant has stipulated that this was a non-custodial interview, and therefore not subject to the requirements of Scales or Miranda.

The beginning of the interview was not recorded. Appellant was provided with a "Tennessen Warning Statement,"*fn1 which he read and signed. The warning informed appellant that he did not have to answer any questions and that any information given could be used for investigations by other agencies, including local and state law enforcement. Appellant claims that he only signed the warning because Akers told him that any statements he made were confidential. Akers testified that he would not have made such a statement in the circumstances of this case.*fn2

The remainder of the interview was recorded and appellant admitted that he engaged in the sexual conduct alleged by his daughter. Appellant told Akers and Zierden that he kept a journal to help him deal with his wife's death. After the interview was over, appellant called Zierden and told her that he had written a letter that explained what had happened. Based on appellant's statements, the police obtained a search warrant for appellant's home and seized the journal and the letter, which were used as evidence in his trial.

On two occasions, the district court denied appellant's motions to suppress his statements and the evidence seized under the warrant. Appellant was convicted after a bench trial and was sentenced to prison for a year and a day, with all but 120 days stayed, and probation for five years. The district court also ordered appellant to pay restitution in the amount of $12,926.99 to reimburse the county for the cost of his daughter's foster care and to reimburse his ...


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