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This opinion will be unpublished and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
A17-1241

State of Minnesota,
Respondent,

vs.

Richard Dominguez,
Appellant.

Filed July 9, 2018
Affirmed
Hooten, Judge

Steele County District Court
File No. 74-CR-17-148

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

Jason Iacovino, Assistant City Attorney, Henefield & Iacov ino, Blooming Prairie,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges his conviction for domestic assault, arguing that the
uncorroborated testimony of the victim was insuf ficient to sustain a conviction. He also

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argues that the district court’s restitution order should be vacated because it is not
authorized by law. Because the victim’s testimony was sufficiently reliable on its own and
because it was also corroborated by another witness, we affirm appellant’s domestic assault
conviction. Because appellant’s restitution argument is not properly before this court, we
decline to consider it.
FACTS
Appellant Richard Dominguez lived with L.T. and her husband , R.T., in the
basement of their house from approximately mid-November 2016 until January 22, 2017.
The parties do not agree on whether L.T. was allowing Dominguez to live at the house for
free or if he was paying rent.
L.T. testified at trial that on January 19 she asked Dominguez to move out, but that
he did not immediately do so. On January 22, she and her husband resolved to confront
Dominguez about moving out, so they went to the stairs leading down to the basement and
called down, asking Dominguez to come talk to them. Dominguez then ran up the stairs
and “started hitting [ L.T.] with sticks ,” repeatedly hitting her arms. Dominguez also
attempted to hit R.T. who was standing farther up the stairs behind L.T. R.T. initially
grabbed a mop and tried to hit Dominguez with it, but he eventually ran off to get a baseball
bat. L.T. was able to get away from Dominguez and call 911. As a result of the attack,
she had a bruise on one arm and red marks on the other.
R.T. offered a similar version of the events when he testified at trial. He explained
that when Dominguez was attacking L.T., he “saw [Dominguez] swinging both hands, and
. . . assumed he was hitting” L.T., but his view was blocked.

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Dominguez also testified at trial but told a very different story. He explained that
there were tensions between L.T. and her husband regarding their finances and that L.T.
had not told R.T. that Dominguez w as paying rent to stay at the house. On January 22 ,
L.T. and R.T. had a fight about money, and later that day , L.T. messaged Dominguez,
telling him to move out. Dominguez started to pack up his clothes, but while doing so, the
wooden dowel that his clothes were hanging on broke. The noise attracted L.T. and R.T.’s
attention, and they came to the top of the stairs and screamed at him, asking him what he
was breaking. In response, Dominguez walked to the stairs and showed L .T. one of the
pieces of the broken dowel. R.T. then started throwing things at Dominguez, including a
mop and a vacuum cleaner. Dominguez told L.T. to call the police because he wanted to
be able to safely move his things out of the house. Dominguez de nied ever going up the
stairs or hitting L.T. with anything.
Dominguez was arrested and charged with gross misdemeanor domestic assault
under Minn. Stat. § 609.2242, subds. 1(2), 2 (2016). After a two-day trial, the jury found
Dominguez guilty. L.T. then filed an affidavit for restitution. The affidavit claimed $900
for three months of rent, $600 for three months of food, $100 for gas money, $400 for
expenses related to a laptop and printer, $100 for the repair of a stair railing, $400 for two
headlights, and $300 for u tilities, totaling $2,800. Although L.T. filed her affidavit with
the district court on May 5, 2017, Dominguez neither requested a restitution hearing nor
objected to the restitution claimed by L.T. at the sentencing hearing on May 10. The district
court sentenced Dominguez to 365 days in jail, stayed the sentence for a year, and awarded
L.T. $2,800 in restitution. This appeal follows.

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D E C I S I O N
I.
Dominguez first argues that his conviction should be overturned because L.T.’s
uncorroborated testimony did not establish beyond a reasonable doubt that he assaulted
her. When reviewing a conviction for sufficiency of the evidence, we are limited to
determining whether the jury could reasonably have found the appellant guilty while giving
due regard to the burden of proof and the presumption of innocence. State v. Webster, 894
N.W.2d 782, 785 (Minn. 2017). This involves adopting “the view of the evidence most
favorable to the state” and “assuming the jury believed the state’s witnesses and disbelieved
any contradictory evidence.” Id. (quotation omitted).
Dominguez relies on a line of cases that overturned convictions based largely on
uncorroborated testimony. While “a conviction can rest on the uncorroborated testimony
of a sin gle credible witness,” the Minnesota Supreme Court has overturned convictions
when there is reason to doubt the credibility of the single witness providing the
uncorroborated testimony. State v. Foreman , 680 N.W.2d 536, 539 (Minn. 2004)
(quotation omitted ); see also State v. Ani , 257 N.W.2d 699, 700 (Minn. 1977) (“ [T]he
absence of corroboration in an individual case . . . may well call for a holding that there is
insufficient evidence upon which a jury could find the defendant guilty beyond a
reasonable doubt.” (emphasis omitted) (quotation omitted)).
Dominguez cites to three cases where such convictions were overturned. In State
v. Gluff , the supreme court overturned an aggravated -robbery conviction because the
eyewitness called to testify made a highly unreliable identification of the defendant, leading

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the court to say that “proof on the one critical issue is permeated with doubt.” 285 Minn.
148, 151, 172 N.W.2d 63, 65 (1969). In State v. Langteau, the supreme court overturned
another aggravated rob bery conviction where the only witnesses who testified were the
defendant and the victim. 268 N.W.2d 76, 77 (Minn. 1978). The defendant “at all times
. . . categorically denied any involvement in the crime” and “nothing was discovered to
link him with the crime.” Id. And the supreme court seemed to find the victim’s version
of events odd, pointing out that his actions were unexplained. Id. In State v. Huss , the
supreme court overturned a criminal-sexual-conduct conviction. 506 N.W.2d 290 (Minn.
1993). The supreme court explained that the victim, who was three years old at the time
of the alleged abuse, gave contradictory testimony “as to whether any abuse occurred at
all, and was inconsistent with her prior statements and other verifiable facts,” and that she
had repeatedly been exposed to a highly suggestive book by her mother and therapist,
which “may have improperly influenced [her] report of events.” Id. at 292–93.
Dominguez’s case is distinguishable from these cases. Unlike in Gluff, where the
eyewitness did not know the defendant and had only observed the attacker for a short period
of time, L.T. knew Dominguez and there is no real question as to whether she accurately
identified him. Unlike in Huss, L.T. is not a small child, she did not g ive any flagrantly
contradictory testimony, and there is nothing in the record that suggests that she was
improperly influenced in her version of what happened.
The only case that could be comparable is Langteau. Just like Langteau, Dominguez
“categorically denie[s] any involvement in the crime.” 268 N.W.2d at 77. But t he
comparison between the two cases fails for two reasons.

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First, unlike in Langteau, where there was nothing to link the defendant to the crime,
there were things linking Dominguez to this assault. He was admittedly in the house at the
time of the alleged assault, the dowel allegedly used to hit L.T. was in his living area , and
he acknowledges having part of it in his hands at the bottom of the stairs.
Second, R.T. corroborates L.T.’s testimony. While he testified that he did not see
Dominguez actually make contact with L.T., R.T. still described Dominguez as swinging
the two parts of the dowel at his wife and he assumed that Dominguez was succeeding in
striking her. Dominguez argues that this does not constitute corroboration . But there is
minimal distinction between actually seeing Dominguez strike L.T. as opposed to seeing
him swing the dowels at her and, as evidenced by the bruise on her one arm and the red
marks on her other arm, presumably making contact. We conclude that L.T.’s testimony
was corroborated by her husband’s own testimony.
We also note that even if there was no corroboration, L.T.’s testimony did not have
the same indicia of unreliability as was demonstrat ed in Langteau, Gluff, and Huss, so it
could stand on its own without corroboration . We conclude that there was sufficient
evidence to convict Dominguez of domestic assault.
II.
Dominguez next challenges the district court’s $2,800 restitution order. Co urts are
authorized to order restitution for “out-of-pocket losses resulting from” a crime for which
a defendant is convicted. Minn. Stat. § 611A.04, subd. 1(a) (2016). Such orders are
reviewed for an abuse of discretion, “[b]ut determining whether an item meets the statutory

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requirements for restitution is a question of law that is fully reviewable by the appellate
court.” State v. Nelson, 796 N.W.2d 343, 346–47 (Minn. App. 2011) (quotation omitted).
A defendant may challenge a restitution request. To do so, he typically must
“request[] a hearing within 30 days of receiving written notification of the amount of
restitution requested, or within 30 days of sentencing, whichever is later,” and he must do
so in writing. Minn. Stat. § 611A.045, subd. 3(b) (2016). A defendant “may not challenge
restitution after the 30 -day time period has passed.” Id. But this 30 -day written -
notification requirement only applies when the defendant challenges “the amount or type
of restitution,” and it does not apply when the defendant is challenging the district court’s
legal authority to award restitution. State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011)
(examining a defendant’s challenge to the district court’s legal authority to award
restitution when the victim had not requested restitution). While Dominguez made no such
written request, he argues that his challenge falls under the Gaiovnik exception.
Specifically, Dominguez argues that because the losses claimed by L.T. in her
restitution request were not directly caused by the crime for which he was convicted, the
district court did not have the authority to order restitution for those losses. It is true that
“a loss claimed as an item of restitution . . . must have some factual relationship to the
crime committed—a compensable loss must be directly caused by the conduct for which
the defendant was convicted.” Nelson, 796 N.W.2d at 347 (quotation omitted). But even
assuming, without deciding, that his challenge is to the district court’s legal authority and
that he was therefore not required to submit a written challenge, Dominguez was
nonetheless required to first raise the restitution issue in district court. See Thiele v. Stich,

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425 N.W.2d 580, 582 (Minn. 1988) (stating that an issue generally has to be presented to
the district court in order for an appellate court to consider it). Indeed, the court in Gaiovnik
noted specifically that the exception it created was limited to circumstances “where the
only challenge is to the legal authority of the court to order restitution and that challenge
was raised in the district court.” 794 N.W.2d at 648 (emphasis added). Accordingly, the
question of whether the district court had the legal authority to order these particular items
of restitution is not properly before this court.
Dominguez maintains that we can address the restitution question despite the fact
that he did not raise it in district court. His argument relies upon three premises. First, that
restitution is part of a defendant’s sentence. State v. Borg, 834 N.W.2d 194, 197–98 (Minn.
2013). Second, that the right to a lawful sentence cannot be wai ved or forfeited. State v.
Maurstad, 733 N.W.2d 141, 146–48 (Minn. 2007). And third, that “[t]he court may at any
time correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9. While
these premises are individually correct, they do not together permit this court to disregard
Gaiovnik’s express requirement that claims of this nature be submitted to the district court
before they may be raised on appeal.
We also note that considering the restitution issue for the first time on appeal would
not only be unfair to the state and the victim, but it would also be contrary to the statutory
scheme set forth in Minn. Stat. §§ 611A.04 and .045, subd. 3(a) (2016). Under the
restitution statutes, when a defendant challenges restitution by timely requesting a
restitution hearing, “the court must notify the offender, the offender’s attorney, the victim,
the prosecutor, and the Crime Victims Reparations Board at least five business days before

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the hearing.” Minn. Stat. § 611A.04, subd. 1(b). At th e hearing, the defendant has the
“burden to produce evidence” challenging restitution, but once that burden has been met,
“[t]he burden of demonstrating the amount of loss sustained by a victim as a result of the
offense . . . is on the prosecution.” Minn . Stat. § 611A.045, subd. 3(a). By vacating the
restitution order on appeal, as proposed by Dominguez, we would be denying the state the
opportunity to meet its burden and disallowing the victim’s claim for restitution without
her participation. Such a r esult would not further the restitution statutes’ purpose of
compensating victims for their out-of-pocket losses resulting from a crime. We therefore
decline to consider appellant’s legal challenge to the district court’s restitution award, but
note that this issue is preserved for further proceedings in district court should appellant
later choose to initiate them.
Affirmed.