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State v. Adkins

Court of Appeals of Minnesota

November 25, 2013

State of Minnesota, Respondent,
v.
Michael Robert Adkins, Appellant.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CR-11-36433

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Interim Chief Appellate Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Smith, Judge.

CLEARY, Chief Judge

Appellant, Michael Robert Adkins, was ordered to pay $5, 478.07 in restitution following his conviction of third-degree assault. The district court's restitution award included compensation for the victim's lost wages, a diamond ring, and medical expenses. Appellant now appeals arguing that the district court abused its discretion in its restitution award. We affirm.

FACTS

On November 19, 2011, police officers made contact with the victim, K.H., and discovered her bleeding from her mouth and with a bruised and swollen face. K.H. told police that she had been with appellant, Michael Robert Adkins, whom she knew from a previous occasion, and had gone out for drinks and later returned to his apartment. K.H. said that, after they watched television, appellant became violent, choking K.H. and causing her to lose consciousness. K.H. eventually fled appellant's apartment, made contact with the police, and reported that her shoes, coat, and jewelry were still in the apartment. Officers executed a search warrant and recovered some of her belongings.

Appellant was charged with third-degree assault under Minn. Stat § 609.223, subd. 1 (2010). He waived his right to a jury trial, and the case was submitted to the court for trial on stipulated facts. The district court found appellant guilty of third-degree assault and sentenced him to 27 months in prison. Respondent subsequently requested restitution for K.H., and the district court held a restitution hearing pursuant to a demand by appellant.

At the hearing, K.H. testified that at the time of the offense she was employed by Thomson-Reuters in a technical-support position. She asserted that after the incident with appellant, she was not able to go back to work because she was afraid to leave her house and because her face was visibly bruised. As a result of her inability to go to work, K.H. received compensation through FMLA (Family Medical Leave of Absence). K.H. testified that she was fired on February 14, 2012, and that she received her base wage as severance pay during the eight weeks following termination of her employment. Lost wages were claimed as restitution for all weeks K.H. did not work, including the time period after she was fired.

To demonstrate the lost wages that K.H. sustained, the respondent presented a document K.H. created listing the direct deposits into her bank account from September 2, 2011 until November 23, 2011. At the hearing, K.H. testified that the direct deposits correspond to each paycheck she received during pay periods prior to the incident, which she then used to calculate her average pay over that time period equaling $1, 343.26 per pay period. Average pay was used because K.H. did not get paid in regular amounts. She was paid for overtime for working nights and weekends from home. To calculate her lost wages, K.H. took the difference between her average pay and the payments she received from FMLA while home from work after the assault.

K.H. testified that she did not produce any paycheck stubs because she never received any. She claimed that the only verification she has as to the amounts she received in compensation is the direct deposits listed on her bank statements and that she could not produce copies of the bank statements because she is no longer with the same bank.

K.H. testified that appellant took three of her rings on the night of the assault, and two rings were returned by the police. At the hearing, K.H. provided a 2004 appraisal valuing the unreturned diamond ring at $6, 099. She also provided documentation indicating that she received $2, ...


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