Filed 06/29/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 151

State of North Dakota, Plaintiff and Appellee

v.

Mackenzie Marie Harstad, Defendant and Appellant

No. 20190400

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable John A. Thelen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Megan J. K. Essig, Assistant State’s Attorney, Grand Forks, ND, for plaintiff 

and appellee.

Rhiannon L. Gorham, Grand Forks, ND, for defendant and appellant.
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State v. Harstad

No. 20190400

Jensen, Chief Justice.

[¶1] Mackenzie Harstad appeals from a district court’s judgment ordering 

restitution for unrecovered personal property. The personal property was in a

vehicle at the time the vehicle was stolen, but was not in the vehicle seven days 

later when Harstad was arrested for, and charged with, possession of the stolen 

vehicle. Harstad was not charged with the theft of the vehicle. Harstad argues 

the district court abused its discretion by ordering restitution for the 

unrecovered personal property because there is no immediate and intimate 

causal connection between the criminal conduct and the loss of the personal 

property. We reverse and remand for a redetermination of the amount of 

restitution.

I

[¶2] Harstad was charged with and pleaded guilty to possession of a stolen 

vehicle, in violation of N.D.C.C. § 12.1-23-02(3). The State sought an order for 

restitution for towing expenses and the value of missing gas, a license plate, 

and several unrecovered items of personal property located in the victim’s 

vehicle at the time the vehicle was stolen.

[¶3] Harstad agreed to restitution for the towing expenses and the value of 

the gas and license plate, but contested the imposition of restitution for the 

unrecovered items of personal property. Harstad argued she could not be held

responsible for the missing personal property because she was only convicted

of possessing the stolen vehicle and there is no immediate and intimate causal 

connection between her criminal conduct of possessing the stolen vehicle and 

the loss of the personal property. The district court ordered Harstad to pay

restitution in the amount of $2,104, which included the value of the 

unrecovered items of personal property. Harstad appealed the court’s 

restitution award.
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II

[¶4] Harstad argues the district court abused its discretion in awarding 

restitution for the unrecovered property in the vehicle at the time the vehicle 

was stolen. District courts possess a wide degree of discretion when 

determining restitution awards. State v. Walker, 2019 ND 292, ¶ 5, 936 

N.W.2d 45 (citing State v. Rogers, 2018 ND 244, ¶ 23, 919 N.W.2d 193). “A 

district court’s award of restitution to a crime victim is made under N.D. Const. 

Art I, § 25(1)(n) and N.D.C.C. § 12.1-32-08.” Id.

[¶5] “In analyzing whether to order restitution, N.D.C.C. § 12.1-32-08(1)(a)

requires the district court to consider the ‘reasonable damages sustained by 

the victim.’” State v. Carson, 2017 ND 196, ¶ 6, 900 N.W.2d 41. Section 

12.1-32-08(1), N.D.C.C., limits damages 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” as requiring an immediate and intimate causal connection 

between the criminal conduct and the damages or expenses for the restitution 

imposed upon the defendant. Carson, at ¶ 6 (quoting State v. Pippin, 496 

N.W.2d 50, 52-53 (N.D. 1993)).

[¶6] “Section 25(1)(n), N.D. Const. Art I, provides crime victims, ‘[t]he right 

to full and timely restitution in every case and from each offender for all losses 

suffered by the victim as a result of the criminal or delinquent conduct.’” State 

v. Bruce, 2018 ND 45, ¶ 11, 907 N.W.2d 773. Section 25(1)(n) does not change 

the restitution that a district court may order under N.D.C.C. § 12.1-32-

08(1)(a). Id. (citing State v. Kostelecky, 2018 ND 12, ¶ 12, 906 N.W.2d 77).

[¶7] When reviewing a restitution order, we look to whether the district court 

acted within the limits set by statute, which is a standard similar to our abuse 

of discretion standard. Kostelecky, 2018 ND 12, ¶ 6, 906 N.W.2d 77 (quoting

State v. Tupa, 2005 ND 25, ¶ 3, 691 N.W.2d 579). “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 

reasonable determination, or if it misinterprets or misapplies the law.” Id. We 

review questions of law de novo in determining whether the district court 
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abused its discretion through misapplication or misinterpretation of the law.

Id.

III

[¶8] Harstad argues the district court ordering restitution for unrecovered 

personal property located in the vehicle at the time the vehicle was stolen goes 

beyond the limits set by N.D.C.C. § 12.1-32-08(1). She asserts the loss of the 

personal property is not “directly related” to or a “direct result” of her 

possession of the stolen vehicle because an immediate and intimate causal 

connection does not exist between her criminal conduct of possessing the stolen 

vehicle and the loss of the personal property.

[¶9] This Court has previously held that a defendant convicted of possession 

of stolen property cannot be held liable to make restitution for losses a victim

incurred as a result of a burglary, committed by someone other than the 

defendant, including unrecovered personal property and cash. State v. Pippin, 

496 NW.2d 50, 53 (N.D. 1993). In Pippin, this Court reversed a restitution

order requiring a defendant, who was convicted of possessing stolen property

from a burglary, to pay damages for unrecovered property from the same 

burglary which was not in the possession of the defendant. Id. We did 

recognize the defendant could be held liable if stolen property in the 

defendant’s possession was returned damaged to its owners or damages were 

sustained as result of temporary loss of use of the property. Id. Our holding 

in Pippin was guided by our conclusion there was not an immediate and 

intimate causal connection between the criminal conduct of possessing stolen 

property and the loss of other personal property during the burglary. Id.

[¶10] The State argues our decision in Pippin supports the restitution ordered 

in this case because a connection between Harstad and the unrecovered 

personal property can be reasonably inferred from the record. The State 

argues this Court recognized that a sufficient inference of a connection can 

arise when the property possessed by the defendant once contained the items 

which were not recovered. In this case, the State contends the inference of a 

connection arises because the unrecovered personal property was inside the 
4

vehicle when it was stolen. The State cites to the following discussion in Pippin

as support for its argument:

The damages for the unrecovered property are not immediately 

connected to Joan’s conduct. Moreover, a close causal connection 

between Joan’s act and the missing property cannot reasonably be 

inferred from the record. For example, the record does not show 

that one or more of the items Joan possessed once contained other 

items which were not recovered. See State v. Mead, 67 Wash.App. 

486, 836 P.2d 257 (Wash.Ct.App. 1992) [reasonable to infer from 

possession of display cases in which coin collection was kept, that 

loss of coins resulted from possession].

Pippin, 496 NW.2d 50, 53 (N.D. 1993).

[¶11] Our reference of the Washington Court of Appeals decision in Mead was 

not part of the holding necessary for our decision in Pippin, was dictum, and 

lacks formal precedential value. We also note the Washington Court of 

Appeals subsequently distinguished its decision in Mead from a case involving 

circumstances similar to those presented in this case. State v. Tetters, 81 

Wash.App. 478, 914 P.2d 784 (Wash.Ct.App. 1996) (concluding the damages 

for unrecovered personal property originally located in a stolen vehicle were

not directly related to the possession of the stolen vehicle). We decline to 

extend our prior reference to the Washington Court of Appeals decision in 

Mead to the facts of this case.

[¶12] The State also cites to our recent decision finding a sufficient connection 

between the criminal conduct of possessing stolen property and damage to that 

same property. State v. Walker, 2019 ND 292, ¶ 12, 936 N.W.2d 45. In Walker,

this Court affirmed a restitution order requiring the defendant, who was 

convicted of possessing a stolen motorcycle, to pay restitution for the damages

to the motorcycle. Id. We concluded the district court acted within limits set 

by N.D.C.C. § 12.1-32-08(1) because the restitution was for damages to the 

property that the criminal offense was based on. Id. Citing Pippin, we

recognized damage to the stolen property possessed by the defendant or 

compensation for the loss of the use of the stolen property was sufficiently 
5

connected to the criminal act to support an order for restitution. Id. at ¶ 9. We 

decline to extend our holding in Walker to the circumstances of this case.

[¶13] Section 12.1-32-08(1), N.D.C.C., limits restitution in this case to the loss 

that was directly related to Harstad’s criminal conduct, the possession of the 

stolen vehicle. There is nothing in the record to indicate an immediate causal 

connection between the unrecovered items in the vehicle at the time it was 

stolen and Harstad’s conviction for possession of the stolen vehicle. We 

conclude the district court abused its discretion awarding restitution for the 

unrecovered property located in the vehicle at the time the vehicle was stolen.

IV

[¶14] The district court abused its discretion awarding restitution for the 

unrecovered property located in the vehicle at the time the property was stolen. 

We reverse the district court’s judgment and remand for a determination of the 

appropriate amount of restitution, excluding the unrecovered property located 

in the vehicle at the time the vehicle was stolen.

[¶15] Jon J. Jensen, C.J.

Lisa Fair McEvers

Daniel J. Crothers

Gerald W. VandeWalle

Jerod E. Tufte