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National Crime Victim Law Institute

State v. McAllister, 939 N.W.2d 502 (N.D. 2020)

August 13, 2020

Defendant appealed from a criminal judgment and order for restitution after a jury found him guilty of assault. Among various bases for appeal, defendant argued that his constitutional right to confront witnesses was violated because the district court limited his cross-examination of the victim, in particular as to the victim’s interest in obtaining restitution. The lower court ruled that the question would elicit confusing and misleading testimony. As a matter of first impression, on appeal, the court stated that the victim’s interest in restitution is relevant. However, “given the district court’s holding that the evidence would be misleading and confusing to the jury, the extent of cross-examination that was permitted, and the impeachment testimony elicited, we conclude the district court’s decision was not an abuse of discretion.” Defendant also argued that the district court erred when it ordered restitution. North Dakota’s Constitution provides 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.” This right has been interpreted to mean that a victim is entitled to be made whole through a reasonable restitution amount based on the entirety of his or her actual losses directly related to the criminal offense. Defendant argued that the victim was treated for injuries that constitute serious bodily injury, but that the jury acquitted him of aggravated assault, which would have required a finding that he caused the victim serious bodily injury. He argued that he could not be required to pay restitution for injuries related to the finding of not guilty. However, the court explained that defendant’s charge of aggravated assault limited the definition of serious bodily injury to a specific type of bodily injury (unconsciousness), of which the jury acquitted him. His assault charge, which he was convicted of, required the jury to find he committed substantial bodily injury. Because the district court heard testimony indicating the victim was treated for the types of injuries defendant was convicted of causing, the court found that the trial court did not abuse its discretion. Affirmed.