A16-1372

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1029
A16-1372

State of Minnesota,
Respondent,

vs.

David Arthur Christensen,
Appellant.

Filed August 7, 2017
Affirmed in part, reversed in part, and remanded
Connolly, Judge
Concurring in part, dissenting in part, Smith, Tracy M., Judge

Redwood County District Court
File No. 64-CR-14-791

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Steven Collins, Redwood County Attorney, Jenna M. Peterson, Assistant County Attorney,
Redwood Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
S Y L L A B U S
Because Minn. Stat. § 611A.01(b) (2016), which identifies the victims of crimes
who are entitled to restitution , does not include conservators , a court may not find that a
conservator is entitled to restitution.
2
O P I N I O N
CONNOLLY, Judge
Appellant was convicted of two counts of financial exploitation of a vulnerable
adult. He challenges his conviction and the denial of his motion for a new trial, arguing
that the jury’s verdicts were inconsistent. He also challenges the district court’s order that
he pay restitution to the vulnerable adult’s conservator , arguing that conservators are not
among the entities identified as victims entitled to restitution by Minn. Stat. § 611A.01(b).
Because appellant’s challenge to his conviction is based on a misreading of the jury’s
verdicts, we affirm the conviction. However, because we agree that the district court, like
this court, has no authority to add to th ose whom the legislature has identified as victims
entitled to restitution, we reverse the restitution order and remand for proceedings
consistent with this opinion.
FACTS
During most of 2014, a ppellant David Christensen had control of the financial
affairs of his uncle , A.C., a vulnerable adult . Appellant was charged with financial
exploitation of a vulnerable adult under Minn. Stat. § 609.2335, subd. 1(1)(ii) (using a
vulnerable adult’s resources for the benefit of someone other than the vulnerable adult) and
(iii) (depriving a vulnerable adult of the vulnerable adult’s resources for the benefit of
someone else) (2012). In 2015, the district court appoi nted Lutheran Social Services
(L.S.S.) as A.C.’s conservator.1

1 The order appointing L.S.S. noted that A.C.’s neuropsychological exam showed he was
“essentially illiterate” with his “reading capacity . . . in the lower half of the mildly mentally
3
At the conclusion of appellant’s trial, the jurors received eight verdict forms. The
forms for charges one through four each asked first if appellant was guilty of violating
Minn. Stat. § 609.2335, subd. 1(1)(ii) , then, if he was guilty, in what amount: $5,000 to
$35,000 (charge one); $1,000 to $5,000 (charge two); $500 to $1,000 (charge three); and
“not more than $500 ” (charge four). Charges five through eight asked if appellant was
guilty of violating Minn. Stat. § 609.2335, subd. 1(1) (iii) and, if so, in wh ich of those
amounts.
The jury found appellant guilty of charges one through four in the amount of $1,000
to $5,000 (charge two) and not guilty of charges five through eight. Appellant moved for
a new trial, arguing, among other things, that the jury’s verdicts were legally inconsistent.
His motion for a new trial was denied. Appellant’s sentence was stayed, and he was placed
on probation for up to five years. He filed a noti ce of appeal from the judgment (A16-
1029).
L.S.S., in its capacity as A.C.’s conservator, filed a request for restitution for him.
L.S.S. stated that the funds it sought to recover “were used by [appellant] for his own
benefit. These funds belonged to [A.C.]—a vulnerable adult.” Attached to the request was
a list of expenses totaling $10,229.14 paid by appellant to variou s entit ies, including
$4,895.56 to a car dealership.
At the hearing, appellant argued that L .S.S. was not a “victim” as defined by the
restitution statute. After the hearing, A.C.’s guardian notified the district court that A.C.

retarded range at the 1.6 grade level” and said his “reasoning needs to b e guided in small
logical steps when novel concepts are being presented” to him.
4
“does not seek to collect monetary restitution from [appellant] .” The district court
concluded that L.S.S. was allowed to make a restitution claim on A.C.’s behalf and issued
a restitution order requiring appellant to pay $4,895.56 .2 Appellant challenged the
restitution order in a second appeal (A16-1372), and this court consolidated the appeals.
ISSUES
1. Were the jury’s verdicts inconsistent?

2. Is L.S.S. a “victim” within the meaning of Minn. Stat. § 611A.01(b)?
ANALYSIS
1. Jury’s verdicts
Whether two jury verdicts are legally inconsistent is a question of law, subject to de
novo review. State v. Leake, 699 N.W.2d 312, 325 (Minn. 2005). A defendant is entitled
to a new trial only if the verdict is legally inconsistent, as opposed to merely logically
inconsistent. Id. at 325-26. An acquittal on one count and a finding of guilty on another
count can be logically inconsistent, but cannot be legally inconsistent. State v. Laine, 715
N.W.2d 425, 434 -35 (Minn. 2006). Legal inconsistency occurs only “when proof of the
elements of one offense negates a necessary element of another offense.” State v. Cole ,
542 N.W.2d 43, 50 (Minn. 1996). A legally inconsistent verdict requires that two guilty
verdicts be mutually exclusive. See, e.g., State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990)
(“We are unable to reconcile the jury’s findings that [the] defendant caused the death of

2 The district court noted that appellant had testified that this amount was paid from A.C.’s
bank account for repairs to appellant’s truck, which he had since sold for $4,000, and that
“[t]he Court does not find it prudent to go beyond the specific monetary parameter found
by the jury in the underlying criminal case.”
5
his wife with premeditation and intent and at the same time caused that death through
negligence or reckless conduct.”).
Here, appellant was found guilty of only one charge: violating Minn. Stat.
§ 609.2335, subd. 1(1)(ii) in an amount more than $1,000 but less than $5,000. There can
be no legal inconsistency in the verdict when a defendant is found guilty of only one charge.
See Moore, 458 N.W.2d at 94). Finding appellant guilty of misuse of a vulnerable adult’s
resources in an amount more than $1,000 but less than $5,000 necessarily precluded finding
that he was guilty of misuse of a vulnerable adult’s resour ces in any amount over $5,000
(e.g., $5,001 to $35,000, as in charge one ) or less than $1,000 (e.g., $50 0 to $1,000 as in
charge three and $1 to $500, as in charge four). The jury’s findings that appellant was not
guilty of misuse in either of those amounts was not legally inconsistent.
Appellant argues tha t the jury’s verdict on charge four was inconsist ent with its
verdict on charge two, i.e., that appellant took more than $1,000 but less than $5,000. But
appellant misquotes charge four, saying the verdict form asked the jury “Was the value of
the money stolen more than $500.00?” Actually, the verdict form asked the jury, “Was the
value of the money stolen not more than $500.00?” (emphasis added). The jury answered
“No” when asked, “Was the value of the money stolen not more than $500?” consistent
with its “Yes” answer when asked, “Was the value of the moneys stolen more than
$1,000.00, but not more than $5,000.00?” Thus, there was no log ical inconsistency, let
alone legal inconsistency, in the jury’s verdict that appellant was guilty of one charge.
6
2. Is a conservator a “victim” within the meaning of Minn. Stat. § 611A.01(b)?
“Interpretation of a statute pres ents a question of law, whic h we review de novo.”
Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011).
“Upon conviction of a felony, . . . the court . . . may se ntence the defendant . . .
(5) to payment of court-ordered restitution in addition to either imprisonment or payme nt
of a fine, or both . . . .” Minn. Stat. § 609.10, subd. 1(a) (2016). The restitution available
in sentences for felonies includes: “(1) payment of compensation to the vi ctim or the
victim’s family . . . .” Minn. Stat. § 609.10, subd. 2(a) (2016). “A victim of a crime has
the right to receive restitution as part of the disposition of a criminal charge . . . against the
offender if the offender is convicted . . . .” Minn. Stat. § 611A.04, subd. 1 (2016).
“Victim” means a natural person who incurs loss or harm as a
result of a crime, including a good faith effort to prevent a
crime, and for purposes of sections 611A.04 and 611A.045,
also includes (1) a corporation that incurs loss or harm as a
result of a crime , (2) a go vernment entity that incurs loss or
harm as a result of a crime, and (3) any other entity authorized
to receive restitution under section 609.10 or 609.125. The
term “victim” includes the family members, guardian , or
custodian of a minor, incompetent, inca pacitated, or deceased
person.

Minn. Stat. § 611A.01 (b). The issue here is a victim’s right to restitution, and this
definition of the term “victim” is specific to the statute conferring that right.
A.C. was indisputably the victim of appellant’s crime . A.C. w as also an
incompetent person, so his family member, guardian, or custodian, but not his conservator,
7
could also seek restitution as a victim under Minn. Stat. § 611A.01 (b).3 In statutory
construction, “[t]he doctrine expressio unius est exclusio alterius means that the expression
of one thing is the exclusion of another. Expressio unius generally reflects an inference
that any omissions in a statute are intentional. ” State v. Caldwell, 803 N.W.2d 373, 383
(Minn. 2011) (citations omitted); see, e.g., Staab v. Diocese of St. Cloud, 853 N.W.2d 713,
719 (Minn. 2014) (“The Legislature’s expression of a general rule of several liability
subject to four exceptions in subdivision 1 [of Minn. Stat. § 604.02 (2012)] precludes an
interpretation of subdivision 2 that would effectively create a fifth exception to the several
liability rule.”); City of Moorhead v. Red River Valley Coop. Power Ass’n , 811 N.W.2d
151, 159 (Minn. App. 2012) (holding that, in the statute listing damages in eminent domain
proceedings, “the words ‘must include’ limit the fact -finder to consideration of only the
four specifically enumerated factors”) aff’d, 830 N.W.2d 32 (Minn. 2013).
Moreover, an appellate court “cannot supply that w hich the legislature purposely
omits or inadvertently overlooks.” Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC,
886 N.W.2d 208, 214 (Minn. 2016); see also State v. Alexander , 855 N.W.2d 340, 347
(Minn. App. 2014) (holding that a statute directing district courts to determine the amount
of restitution based on victim’s loss and defendant’s ability to pay did not authorize district
courts to order a defendant to sell personal property to pay restitution). For example, “[i]t
may well be that a distri ct court should have the authority to order a defendant to sell

3 A.C.’s guardian, who would have been entitled to seek restitution under the statute,
explicitly declined to seek restitution from appellant on A.C.’s behalf.
8
personal property to satisfy a restitution order, but it is u p to the legislature, and not [an
appellate court], to change the law.” Alexander, 855 N.W.2d at 349.
The restitution statute fo rmerly defined “victim” as “a natural person who incurs
loss or harm as a result of a crime . . . If the victim is a natural person and is deceased,
‘victim’ means the deceased’s surviving spouse or next of kin.” Minn. Stat. § 611A.01(b)
(2002), quoted in State v. Jones, 678 N.W.2d 1, 23 (Minn. 2004) (concerning whether the
sister of a murder victim was entitled to restitution) . Jones interpreted the phrase
“surviving spouse or next of kin ,” holding that the two terms were mutually exclusive so
that “in a murder case the [person or persons] eligible to receive restitution include either
the murder victim’s surviving spouse or [the] nearest living blood relation [of the murder
victim].” Jones, 678 N.W.2d at 25-26. The murder victim’s surviving childre n were her
next of kin, so the district court’s denial of restitution to the murder victim’s sister was
affirmed. Id. at 26.
In 2005, the year after Jones was released, the legislature redefined “ victim” to
include “the family members, guardian or custodian of a minor, incompetent, incapacitated,
or deceased person,” replacing the phrase “the deceased’s surviving spouse or next of kin.”
2005 Minn. Laws ch. 136, art. 8, § 22 at 1016-17. The legislature could have said “family
members, guardian, custodia n, or conservator” or “family members or others, including
but not limited to guardians or custodians,” but it did not say either. Absent such language,
this court may not add “conservator” to the list of those included as victims. See Toyota-
Lift of Minn., 886 N.W.2d at 214. Moreover, both guardians and conservators act on behalf
of individuals but the legislature included only guardians in the statute.
9
We note that the issue here is not the logical, social, or other merit of including
“conservator” on the list of those entitled to seek restitution; it is this court’s authority , or
lack of authority, to “supply that which the legislature purposely omits or inadvertently
overlooks.” See id. Whether conservators should or should not be included among those
entitled to seek restitution is outside this court’s scope of review.
It is true that L.S.S., as A.C.’s conservator, has a statutory duty to “institute suit on
[his] behalf . . . and represent [him] in any court proceedings ” and a statutory power to
“apply on [his] behalf . . . for any assistance, services, or benefits available to [him] through
any unit of government.” Minn. Stat. § 524.5-417(c)(3), (6) (2016).4 But those having a
right to restitution from an offender after a conviction o f a crime are the “victims” of that
crime as the word “victim” is defined in the restitution statute, and that definition does not
include conservators. See Minn. Stat. § 611A.01(b). Assuming that these provisions are
in conflict, the more specific preva ils. See Minn. Stat. § 645. 26, subd. 1 (2016) (“[T]he

4 The question here involves seeking restitution for a conservatee under Minn. Stat.
§ 611A.04, subd. 1; it is not bringing an action on behalf of a conservatee. Appellant notes
in his brief that “L.S.S. is not without the means to recover money it believes [A.C.] lost
as a result of be ing financially exploited by [a]ppellant because L.S.S. [as A.C.’s
conservator] can initiate a civil suit to recover those losses.” We agree: if L.S.S. had
brought an action on its conservatee’s behalf, rather than filed for restitution on the
conservatee’s behalf, the result would be different. See Haugland ex rel. Donovan v.
Mapleview Lounge & Bottleshop, Inc., et al., 666 N.W.2d 689, 693 (Minn. 2003) (holding
that a conservator who brought a civil -damages action in her own name under the
Minnesota Civil Damages Act did not, “as conservator for [the deceased’s only child], have
a right of action in her own name for personal injury or pecuniary loss,” but was entitled
to amend the complaint to bring the action under the child’s name, and rejecting the
argument that the conservat or “[did] not have the capacity to bring the claim on [the
child’s] behalf”).
10
special provision shall prevail and shall be construed as an exception to the general
provision.”).
The statute defining “victim” in the context of restitution is far more specific to the
restitution award at issue here than is the statute setting out the duties and powers of
conservators, which applies to conservators generally regardless of whether the protected
person is seeking or is entitled to restitution. See Anderson v. State, 794 N.W.2d 137, 140
(Minn. App. 2011 ) (holding that, in the context of restitution awards, only a statute
prescribing the amount of restitution for victims of a particular crime is more specific than
the restitution statute). Thus, the definition of “victim” in the restitution statute prevails.
While it may be that conservators should be added to the list of victims entitled to
restitution, it is up to the legislature and not this court to make that change. See Alexander,
855 N.W.2d at 349; Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (“[T]he
task of extending existing law falls to the supreme court or the legislature, but it does not
fall to this court.”), review denied (Minn. Dec. 18, 1987).
D E C I S I O N
Because the jury’s verdicts were not inconsistent, we affirm the denial of appellant’s
motion for a new trial. Because the legislature did not include conservators among those
who may be victims entitled to restitution, we reverse the restitution award to L.S.S. and
remand for further proceedings.
Affirmed in part, reversed in part, and remanded.

C/D-1

SMITH, TRACY M., Judge (concurring in part, dissenting in part)
I respectfully dissent from that part of the majority opinion reversing the restitution
award. The plain language of the statutes leads me to conclude that a conservator need not
be a “victim” to recover restitution on behalf of the protected person, and that the inclusion
of family members, guardians, and custodians in the definition of “victim” does not remove
a conservator’s independent statutory authority to seek restitution on the protected person’s
behalf. The restitution statute and the conservator statute are properly read harmoniously
to permit a conservator to seek restitution on behalf of a crime victim.
L.S.S. requested, and the district court ordered, restitution of $4,895.56 that
appellant took from A.C.’s bank account to pay for repairs to appellant’s truck. L.S.S. did
not request, and the district court did not order, restitution for any expenses incurred by
L.S.S. in connection with this matter.
Without question, A.C. i s a crime victim entitled to seek restitution under the
restitution statute. A.C. meets the definition of “victim” because he i s “a natural person
who incur[red] loss or harm as a result of a crime,” see Minn. Stat. § 611A.01(b) (2016),
and, as a victim, he has the right to receive restitution as part of the disposition of a criminal
charge, see Minn. Stat. § 611A.04, subd. 1 (2016).
A.C., a vulnerable adult, is also a protected person under the conservator statute.
See Minn. Stat. § 524.5 -401 (2016). And L.S.S., as the conservator , is authorized under
the conservator st atute to act on behalf of A.C. to preserve his estate . In the order
establishing conservatorship, L.S.S. was given the power and duty to collect all debts and
claims in favor of A.C., to represent A.C. in court proceedings, and to apply on behalf of
C/D-2

A.C. for any assistance, services, or benefits available through any unit of government.
Each of these powers and duties is authorized by the conservato r statute. Minn. Stat.
§ 524.5-417(c)(3), (6) (2016). And each of these powers and duties applies easily to
seeking restitution on behalf of the protected person: A.C. has a claim for the money that
appellant misused, the restitution process is a court proceeding, and the district court is a
governmental unit through which a conservator may apply for the benefit of restitution.
See id.
The majority opinion, however, concludes that the restitution statute forecloses the
conservator’s authority to seek restitution because the restitution statute is more spe cific
than the conservator statute. But the question of which statutory provision is the more
specific arises only when two statutory provisions irreconcilably conflict. “[W]hen two
provisions of law are in irreconcilable conflict with one another, the special provision shall
prevail and shall be construed as an exception to the general provision.” State v.
Barrientos, 837 N.W.2d 294, 302 ( Minn. 2013) ( quotation omitted). “But, whenever
possible, potentially conflicting general and special provisions ‘s hall be construed . . . so
that effect may be given to both.’” Id. (quoting Minn. Stat. § 645.26, subd. 1 (2016)). In
my view, the restitution statute and the conservator statute do not conflict, much less
irreconcilably.
Nothing in the conservator statu te or the restitution statute suggests that the
protected person under the conservator statute cannot be a victim under the restitution
statute, and nothing in either statute prohibits conservators from seeking restitution on
behalf of such a protected per son. Under section 611A.04, the victim has a right to
C/D-3

restitution for a loss as a result of crime ; at the same time, under section 524.5 -417, the
victim’s conservator has the power to act on behalf of the protected person in a court
proceeding to seek money lost and owing . There is no inherent conflict; the statutes are
reconcilable.
The definition of victim in the restitution statute does not undermine this conclusion.
That definition includes not just the natural person who incurred the loss but also the family
members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased
person. Minn. Stat. § 611A.01(b). Because th ese latter persons are also defined as
“victims,” they are authorized to seek restitution directly under section 611A.04,
subdivision 1. But this more expansive definition of “victim” does not conflict with the
independent statutory authority of a conservator to seek restitution on the crime victim’s
behalf. See Minn. Stat. § 524.5-417(c)(3), (6). Because the conservator acts on behalf of
the protected person to exercise that person’s right to restitution, there is no need for the
conservator to also be a victim under the restitution statute. This interpretation thus does
not offend the principle forbidding courts from “adding words or meaning to a statute that
are purposely omitted or inadvertently overlooked,” Premier Bank v. Becker Dev., L.L.C.,
785 N.W.2d 753, 760 (Minn. 2010) (citation omitted), or the canon of statutory
construction that the expression of one thing is the exclusion of another, State v. Caldwell,
803 N.W.2d 373, 383 (Minn. 2011).
Reconciling the statutes in this way comports with the Minnesota Supreme Court’s
approach in Haugland ex rel. Donovan v. Mapleview Lounge & Bottleshop, Inc. , 666
N.W.2d 689, 695 -96 (Minn. 2003). In that case, the defendants argued that because
C/D-4

conservators did not come within the class of persons enti tled to sue in their own names
under the Minnesota Civil Damages Act, the conservator and wrongful -death trustee of a
child could not bring an action on behalf of a child who was entitled to sue under the act.
Haugland, 666 N.W.2d at 693. The supreme cou rt rejected that argument and concluded
that, because under a different statute the legislature granted the conservator the power to
institute suit on behalf of the conservatee, the conservator had the authority to sue on behalf
of the child in the child’s name under the Minnesota Civil Damages Act. Id. at 695-96.
Like the restitution statute, the act at issue in Haugland contained a list stating that a
“spouse, child, parent, guardian, employer, or other person injured” could sue in the
person’s own name for damages sustained under the act. Id. at 693. But unlike the majority
in this case, the supreme court in Haugland did not engage in a statutory -interpretation
analysis of whether the list granting certain injured persons a right to sue on their own
behalf under the Minnesota Civil Damages Act might conflict with a conservator’s
independent authority to bring a suit on behalf of a person injured under that act. Id. at
695-96. Because the suit would be brought in the child’s name, on behalf of the chi ld, it
was of no consequence that the conservator herself did not qualify as an injured person
under the act. Id. So, too, should the conservator in this case be permitted to seek
restitution on behalf of the victim-conservatee, without having to qualify as a victim in its
own right.
This interpretation does not render meaningless the provision incorporating family
members, guardians, and custodians into the definition of “victim.” A victim as defined
by section 611A.01(b) receives additional rights beyo nd the right to receive restitution ,
C/D-5

including the right to be notified if expungement is sought, to receive notice if the offender
is released or escapes from incarceration, to be informed of conditions of the offender’s
release and the identity of the corrections agent supervising the release, and, for victims of
certain offenses, to be informed of the location of an offender on supervised release. Minn.
Stat. § 611A.06 (2016). There are reasons why the legislature would extend th ese rights
to family members, guardians, and custodians but not to conservators.
A “guardian” is a person who is appointed “to provide for the needs of” an
incapacitated person, and who has a duty to provide for the person’s “care, comfort, and
maintenance needs, including food, clothing, shelter, health care, [and] social and
recreational requirements.” See Minn. Stat. §§ 524.5-313(c), -102, subd. 5 (2016). A
“custodian” of a person generally means a person who has physical custody of a child. See
Minn. Stat. § 518.003, subd. 3(e) (2016). In contrast, a “conservator” is “a person who is
appointed by a court to manage the estate of a protected person.” Minn. Stat. § 524.5-102,
subd. 3 (2016). While family members, custodians, and guardians have a role in caring for
the person, a conservator’s only role is in managing that person’s estate.
It is logical, then, that the legislature would extend rights to the family members,
guardian, or custodian of a minor, incompete nt, or incapacitated victim that are not
extended to the victim’s court-appointed conservator, who has no similar role in protecting
the personal safety and well -being of the protected person. By incorporating family
members, guardians, and custodians into the definition of “victim,” while not excluding
others from exercising their power to make financial claims on behalf of a person who
happens to fall within the definition of “victim,” the statute affords those who personally
C/D-6

care for the minor, incompetent, or incapacitated victim certain rights relevant to the ir
particular duties, while still allowing a conservator, under an independent statute, to
exercise its particular duty to collect payments owed to the victim’s estate.
In sum, the statutes do not conflict and the conservator is authorized to seek
restitution on behalf of the crime victim. I would affirm.5

5 I also agree with the district court’s conclusion that A.C.’s guardian (who is A.C.’s niece
and appellant’s cousin) lacks authority to veto the conservator’s restitution request
submitted to the district court on behalf of A.C.. While the restitution stat ute authorizes a
guardian to seek restitution as a victim, it does not authorize a guardian who chooses not
to do so to stop a duly appointed conservator from seeking restitution on a crime victim’s
behalf. See Minn. Stat. § 611A.01, .04. Moreover, the g uardian statute authorizes a
guardian to apply for benefits through a governmental unit “if there is no acting conservator
of the estate of the ward,” suggesting that, when there are both, the conservator, not the
guardian, has authority in that realm. See Minn. Stat. § 524.5-313(c)(7). In addition, both
guardians and conservators are subject to the control and direction of the court in all things
and at all times. Minn. Stat. §§ 524.5-313(a), -417(a) (2016).