State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1617

State of Minnesota,
Respondent,

vs.

Angela Tharnaa Hooks,
Appellant.

Filed April 24, 2017
Affirmed
Stauber, Judge

Ramsey County District Court
File No. 62-CR-14-4188

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

John J. Choi, Ramsey County Attorney, Thomas B. Hatch, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Pres iding Judge; Ross, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
On appeal from an order requiring appellant to pay $1,000 in restitution to each of
the 21 direct victims of the identity-theft offense of which appellant was convicted,
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appellant argues that (1) the district court abused its discretion by awarding restitution to
three of the victims because evidence that they were direct victims of appellant’s offense
was presented at the restitution hearing, but not at trial; (2) the district court erred by
concluding that the rules of evidence do not apply at restitution hearings; (3) the
mandatory restitution provision of Minn. Stat. § 609.527, subd. 4(b) (2012) violates
appellant’s right to procedural due process; and (4) Minn. Stat. § 609.527, subd. 4(b)
violates appellant’s substantive due-process rights. We affirm.
FACTS
In June 2014, appellant Ange la T. Hooks was charged with one count of identity
theft involving eight or more victims in violation of Minn. Stat. § 609.527, subds. 2, 3(5), 7
(2012). A jury found appellant guilty of the charged offense, and the district court
sentenced appellant to 117 months in prison. The district court also ordered appellant to pay
$1,000 to each of the 22 direct victims as required by Minn. Stat. § 609.527, subd. 4(b)
(2012). On appeal, this court affirmed appellant’s conviction. State v. Hooks, No. A15-
1520 (Minn. App. Aug. 22, 2016), review denied (Minn. Nov. 15, 2016).
On July 31, 2015, before filing her notice of appeal challenging her conviction,
appellant filed an objection to the restitution award. Appellant argued that the record did
not support a restitution award to all 22 individuals because there was no evidence
introduced at trial that four of these individuals were victims of the identify-theft count
charged by the state. Appellant also claimed that the statutory-minimum restitution award
of $1,000 per direct victim violated her right to procedural due process.
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At the restitution hearing, the state conceded that one of four challenged individuals
was not a direct victim of appellant’s identity theft. The state then sought to present
evidence that the remaining three individuals, J.M., V.S., and B.Y., were direct victims of
appellant’s identity theft. Appellant objected, arguing that “[b]ecause the state did not prove
at trial that these [three] individuals were victims, the state cannot [include] them in[] the
restitution pool by presenting evidence at a post-sentencing hearing.”
The district court disagreed and allowed the state to present evidence that the credit
cards of J.M., V.S., and B.Y. had been stolen and used by appellant. During the
presentation of this evidence, appellant objected on the grounds of hearsay and insufficient
foundation. The district court conditionally admitted the state’s evidence and took the issue
under advisement. The district court later concluded that the rules of evidence “do not
apply at a restitution hearing.” The district court also determined that based upon the
evidence presented by the state, restitution to J.M., V.S., and B.Y. was “proper” because
they “are direct victims of [appellant’s] crime.” Finally, the district court concluded that
appellant’s due-process argument fails under State v. Moua, 874 N.W.2d 812 (Minn. App.
2016), review denied (Minn. Apr. 19, 2016). Therefore, the district court denied appellant’s
challenge to the restitution order. This appeal followed.
D E C I S I O N
I.
Unlike fines, which are typically punitive in nature, the aim of restitution is to
either rehabilitate the defendant or compensate the victim. State v. Fader, 358 N.W.2d
42, 48 (Minn. 1984). Generally, restitution may cover, but is not limited to, “any out-of-
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pocket losses resulting from the crime.” State v. Palubicki, 727 N.W.2d 662, 666 (Minn.
2007) (quotation omitted). Ordinarily, a district court has broad discretion to award
restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999). But the identity-theft
statute requires the district court to “order a person convicted of [identity theft] to pay
restitution of not less than $1,000 to each direct victim of the offense.” Minn. Stat.
§ 609.527, subd. 4(b).
Appellant argues that because no testimony or other evidence about victims J.M.,
V.S., or B.Y. was “introduced at the jury trial on the underlying charged substantive
offense, they cannot be victims of the offense of conviction.” Appellant also contends
that because the state “did not prove at trial that these three individuals were victims, the
state cannot bootstrap them into the restitution pool by presenting evidence at a post-
sentencing hearing.” Thus, appellant argues that the district court abused its discretion by
awarding restitution to J.M., V.S., and B.Y.
To support her claim, appellant cites several cases in which a restitution award
was reversed on the basis that the award was for offenses not actually charged or
committed by the defendant. See State v. Latimer, 604 N.W.2d 103, 104 (Minn. App.
1999) (holding that a defendant who pleads guilty to being an accomplice after the fact to
murder may only be required to pay restitution to the murder victim’s parents for the
losses directly caused by her actions and may not be required to pay restitution for the
losses resulting from the murder); see also State v. Esler, 553 N.W.2d 61, 62 (Minn. App.
1996) (concluding that a court order directing payment of restitution to an individual who
has been victimized by the actions of the defendant is improper when the injury to that
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victim results from a separate criminal incident unrelated to the crime of conviction);
State v. Nelson, 796 N.W.2d 343, 349 (Minn. App. 2011) (modifying restitution order
when the district court erred by including as restitution items of loss that were not
directly caused by the conduct for which the defendant was convicted). But these cases
are distinguishable. Here, appellant was convicted of a single count of identity theft
involving eight or more victims, and the district court awarded restitution to the 21
alleged victims. The fact that there were 21 alleged victims is not inconsistent with the
charged offense because the offense of conviction simply requires that there be eight or
more victims. See Minn. Stat. § 609.527, subd. 3(5). Clearly, 21 victims is more than
eight victims. Therefore, restitution was awarded consistent with the charged offense.
Because no evidence pertaining to J.M., V. S., or B.Y. was presented at trial, the
question we must address is whether the district court abused its discretion by allowing
the state to present evidence at the restitution hearing that these individuals were victims
of appellant’s offense. We conclude that the procedure set forth in the restitution statute
anticipates that evidence other than that presented at trial may be presented at a restitution
hearing to demonstrate a victim’s losses that are the direct result of the offense. Under
Minnesota’s restitution statutes, the victim of a crime has the right to receive restitution
for a loss caused by a convicted criminal offender. Minn. Stat. § 611A.04, subd. 1
(2012). Before ordering restitution under this statute, the district court must receive proof
of the amount of loss, which the victim can provide by affidavit or by “other competent
evidence.” Id. Proof of the amount of loss must include a description of the items lost,
itemized costs, and reasons for the amount if it is “in the form of money or property.” Id.
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Moreover, “[t]he court administrator shall provide copies of this request to the prosecutor
and the offender or the offender’s attorney at least 24 hours before the sentencing or
dispositional hearing.” Id. The defendant may then challenge the restitution request by
producing an affidavit “setting forth all challenges to the restitution or items of
restitution, and specifying all reasons justifying dollar amounts of restitution which differ
from the amounts requested by the victim or victims.” Minn. Stat. § 611A.045, subd. 3
(2012).
The procedure set forth in the restituti on statutes demonstrates that, after a
defendant is convicted, either by trial or guilty plea, the victim submits the proof of loss.
This procedure indicates that the district court may consider new evidence in determining
restitution if that evidence pertains to the offense of conviction. This determination is
supported by the fact that the evidence necessary to prove the elements of a charged-
offense crime may be markedly different from the evidence necessary to prove
entitlement to restitution. For example, an individual who left his cell phone at a friend’s
house that was later destroyed by arson is a victim of the offense and may be entitled to
restitution from the offender convicted of arson for the loss of the cell phone. But
evidence of the cell phone destroyed during the arson would likely not be admitted at trial
because it is unrelated to whether the offender committed the arson. As a result, this
evidence would need to be presented at a subsequent restitution hearing.
Moreover, Minn. Stat. § 611A.04, subd. 1(b)(3), specifically provides that the
district court may amend an order of restitution after the sentencing or dispositional
hearing if “the true extent of the victim’s loss . . . was not known at the time of the
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sentencing or dispositional hearing, or hearing on the restitution request.” This provision
anticipates that certain losses may be proved in the future and provides a mechanism for
the court to amend a restitution order. It also indicates that evidence not presented at trial
may be used in determining restitution. Accordingly, based on the statutory provisions
included in the restitution statute, the district court did not abuse its discretion by
considering new evidence of J.M., V.S., and B.Y.’s claimed losses at the restitution
hearing.
II.
Appellant argues that the district cour t erred “when it ruled that the Minnesota
Rules of Evidence do not apply at restitution hearings,” and that the state’s “admissible
evidence did not prove that appellant committed identity theft against the three disputed
claimants.” But this argument was recently rejected by this court in State v. Willis, 883
N.W.2d 838 (Minn. App. 2016), review granted (Minn. Oct. 26, 2016). In that case, this
court held that “[b]ecause the obligation to pay restitution is a part of a sentence, and the
rules of evidence do not apply to sentencing proceedings, it follows that the evidentiary
rules do not apply to restitution hearings.” Id. at 840. Therefore, under current law, the
district court did not err by determining that the rules of evidence do not apply at
restitution hearings. See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010)
(holding that “[t]he district court, like this court, is bound by . . . the published opinions
of the court of appeals”), review denied (Minn. Sept. 21, 2010).

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III.
Procedural due process requires the government to “provide an individual with
notice and an opportunity to be heard at a meaningful time and in a meaningful manner.”
Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012) (quotation omitted). In
determining whether the government has violated an individual’s procedural due-process
rights, we conduct a two-step analysis. Moua, 874 N.W.2d at 815. First, we “must
identify whether the government has deprived the individual of a protected life, liberty, or
property interest.” Sawh, 823 N.W.2d at 632. If the government has deprived a person
of a protected interest, we then determine “whether the procedures followed by the
[government] were constitutionally sufficient.” Id. (alteration in original) (quotation
omitted). “Whether an individual’s due-process rights have been violated is a question of
law, which we review de novo.” Moua, 874 N.W.2d at 815.
Appellant argues that the mandatory minimum amount of restitution required by
section 609.572, subdivision 4(b), is “unconstitutional because it violates her right to
procedural due process of law.” We disagree. Appellant’s argument was recently
rejected by this court in Moua.1 In that case, this court implicitly recognized that the
minimum-restitution provision raises concerns that an individual’s right to property may
be deprived by an order of restitution. Moua, 874 N.W.2d at 816. But the court also
determined that the procedures employed by the government were sufficient to provide a
defendant with notice and an opportunity to challenge the restitution. Id. at 815

1 Appellant acknowledges the holding in Moua, but “raises the issue to preserve it for
further review.”
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(explaining that the defendant had notice at his plea hearing that the state could seek
restitution, and he had an opportunity to challenge restitution at a separate hearing).
Here, as in Moua, appellant received notice and had the opportunity to challenge
the restitution award. Thus, appellant was not deprived her right to procedural due
process.
IV.
Finally, appellant argues that Minn. Stat. § 609.527, subd. 4(b), violates
substantive due process. But appellant concedes that she “did not make this specific
argument” to the district court. It is well settled that “ordinarily” this court will “not
consider issues raised for the first time on appeal, even when those issues are . . .
challenges to the constitutionality of a statute.” State v. Williams, 794 N.W.2d 867, 874
(Minn. 2001). Thus, appellant has forfeited her substantive due-process argument.
Moreover, even if addressed on the mer its, appellant’s argument fails. Appellant
generally asserts that Minn. Stat. § 609.527, subd. 4(b), “infringes on [her] fundamental
right to property.” But this court recently rejected a general assertion that the minimum-
restitution statute infringes on a fundamental right to property. State v. Rey, 890 N.W.2d
135, 139-40 (Minn. App. Jan. 9, 2017), review granted (Minn. Feb. 28, 2017). The court
addressed the constitutionality of the statute under the rational-basis test because no
fundamental right was implicated. Id. This court held that because the means utilized in
the statute are rationally related to the legitimate governmental purpose of compensating
victims of crimes, the minimum-restitution provision of the identity-theft statute does not
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violate substantive due process. Id. Accordingly, under Rey, appellant’s substantive due-
process argument fails.
Affirmed.