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This opinion will be unpublished and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
A17-1426

State of Minnesota,
Respondent,

vs.

Colton Tyler Boettcher,
Appellant

Filed May 14, 2018
Affirmed
Stauber, Judge*

St. Louis County District Court
File No. 69DU-CR-16-805

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

Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Reilly, Judge; and Stauber, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Appellant Colton Tyler Boettcher was convicted of second -degree burglary and
ordered to pay restitution for property destroyed in a fire that was started during the
burglary. He argues that because he was not convicted of the arson charges brought against
him, he should not be made to pay restitution for the property. Because the destruction of
the property was directly caused by the burglary, we affirm.
FACTS
In the early morning hours of December 13, 2014, Sergeant Brandon Silgjord of the
St. Louis County Sher iff’s Office was called to investigate a suspected cabin burglary .
Later in the morning, Sergeant Silgjord pulled over appellant , Colton Boettcher, Tyler
Klennert and Brody Dunham, suspecting that they were the ones responsible for the
burglary. Klennert and Dunham admitted to Sergeant Silgjord that they had committed four
burglaries that night. The three were later convicted of the burglaries.
On April 10, 2015, Z.D. and his family went to their land in St. Louis County, after
not having visited it for several months. When they arrived, they found that their cabin and
the camper parked next to it had been destroyed by a fire. They also noticed that their
generator was missing. They contacted the police, and Sergeant Silgjord respond ed to the
call. The family had two trail cameras on their land that were operational during the months
they were away. The cameras had taken pictures on December 13, 2014 —the same night
as the other cabin burglaries —that showed people coming onto the ir land in a truck,
entering the cabin, and leaving as the cabin began burning. Z.D. turned the pictures over to

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the police. Sergeant Silgjard examined the pictures and noticed that the truck that came
onto the land that night had a distinct headlight pattern. This caused Sergeant Silgjord to
remember the prior burglary case he had worked on involving Boettcher, Klennert, and
Dunham and that Boettcher’s truck had the same distinct headlight pattern as the truck in
the pictures. Sergeant Silgjord also realized that the description of Z.D.’s generator
matched that of one of the generators recovered from the December 13 burglaries.
Boettcher, Klennert, and Dunham were all charged in the burglary and destruction
of Z.D.’s family cabin and camper. Klennert and Dunham pleaded guilty to burglary and
aiding an offender with arson. Boettcher went to trial on one count of first-degree arson for
the cabin, one count of second-degree arson for the camper, and one count of second-degree
burglary. Klennert and Dunham testified at Boettcher’s trial, expla ining that they went to
the cabin planning to burglarize it and that Boettcher was the one who started the fire.
Before the conclusion of the trial, the state dismissed the second -degree arson
charge for the camper. The jury found Boettcher guilty of second-degree burglary, but was
unable to agree on a verdict on the first -degree arson charge for the cabin, and the state
decided not to retry the charge. The district court ordered restitution, concluding that
Boettcher should be jointly and severally liable with Klennert and Dunham, in the amount
of $81,931.79, for the losses caused by the fire. This appeal follows.
D E C I S I O N
We begin by examining whether Boettcher’s challenge of the restitution award was
procedurally flawed, and then address the substantive merits of the challenge.

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I. Procedural Flaw
We start with a comment made by the district court in its order for restitution.
Though it decided Boettcher’s challenge to restitution on its merits, the district court stated
that the challenge was p rocedurally flawed because it did not include a sworn affidavit.
“We review a district court’s application of the law de novo.” Harlow v. State, Dep’t of
Human Servs., 883 N.W.2d 561, 568 (Minn. 2016). The statute governing the procedure
for restitution orders indeed requires that an offender wishing to challenge the amount of
restitution must include a sworn affidavit explaining why the restitution award should be
different from what was requested by the victims. Minn. Stat. § 611A.045, subd . 3(a)
(2016). But the affidavit requirement does not “apply when the dispute is over the court’s
legal authority to order restitution.” State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn. 2011).
Boettcher does not dispute the value of the cabin and camper. Rath er, he argues that
because he was not convicted of arson, the district court was not allowed to order restitution
for the property. This is the kind of challenge contemplated in Gaiovnik, so we conclude
that Boettcher’s challenge was not procedurally flawed.
II. Restitution
We now turn to the merits of Boettcher’s challenge to the district court’s restitution
order. An order for restitution is reviewed for an abuse of discretion, “[b]ut determining
whether an item meets the statutory requirements for restitution is a question of law that is

5
fully reviewable by the appellate court.” State v. Nelson, 796 N.W.2d 343, 346-47 (Minn.
App. 2011) (quotation omitted).1
Boettcher argues that the district court should be precluded from ordering restitution
for the cabin and camper because he was not convicted of the associated arson charges. “A
victim of a crime has the right to receive restitution as part of the disposition of a criminal
charge or juvenile delinquency proceeding against the offender if the offender is convicted
or found delinquent.” Minn. Stat. § 611A.04, subd. 1(a) (2016). “[A] loss claimed as an
item of restitution by a crime victim must have some factual relationship to the crime
committed—a compensable loss must be directly caused by the cond uct for which the
defendant was convicted.” Nelson, 796 N.W.2d at 347 (quotation omitted). And a district
court “may not order restitution for conduct that is only tangentially related to the criminal
act that caused the loss.” State v. Miller, 842 N.W.2d 474, 477 (Minn. App. 2014), review
denied (Minn. Apr. 15, 2014) . When there is a dispute over the amount or type of
restitution, the burden falls on the prosecution to prove the award’s appropriateness by a
preponderance of the evidence. See Minn. Stat. § 611A.045, subd. 3(a).
The district court relied on State v. Olson to show that it could order restitution ,
despite the fact that Boettcher was not convicted of arson . 381 N.W.2d 899 (Minn. App.
1986). In Olson, the defendant was convicted of burglary for helping two men break into a

1 Considering his previous procedural argument, Boettcher’s challenge of the district
court’s authority sounds like the kind of question that receives de novo review, but in the
cases most analogous to Boettcher’s, the abuse of discretion standard has been used. See
State v. Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999); State v. Esler, 553 N.W.2d 61,
65 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996); State v. Olson, 381 N.W.2d
899, 901 (Minn. App. 1986).

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bar, but was found not guilty of the theft of money from the bar. Id. at 900. The district
court ordered that the defendant pay restitution for the theft in addition to the damage
caused by the burglary. Id. This court affirmed because the victim’s losses were “directly
caused by [the defendant’s] conduct for which he was convicted.” Id. at 901. The district
court in the present case concluded that Boettcher’s case was analogous to Olson because
“[t]he arson was a direct result of the burglary.”
But Boettcher argues that Olson is distinguishable from his own case . He asserts
that in Olson, the predicate offense of the burglary was theft and that the purpose of aiding
in the burglary was to further that theft. Thus, he argues, since theft was the primary
purpose of the burglary, it was the “natural result or consequence” of the burglary, making
it appropriate to order restitution for the theft in Olson. Boettcher concedes that he could
be ordered to pay restitution for the objects stolen from the cabin because the predicate
offense of his burglary conviction was theft. But he asserts that, since arson was not the
predicate offense or underlying purpose of the burglary, the destruction of the cabin and
camper by fire was not a natural result of the burglary and, therefore, he cannot be made to
pay restitution for the cabin and camper.
While Boettcher is correct that his case and Olson are somewhat factually
distinguishable, the distinctions are not dispositive. Boettcher cites no case (and we know
of none ) that discusses the relevance of a predicate offense when deciding whether
restitution is appropriate. The caselaw instead focuses on whether a loss was directly
caused by a crime. See Miller, 842 N.W.2d at 477; Nelson, 796 N.W.2d at 347; State v.

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Latimer, 604 N.W.2d 103, 105 (Minn. App. 1999); State v. Esler , 553 N.W.2d 61, 65
(Minn. App. 1996); Olson, 381 N.W.2d at 901.
Even the cases that Boettcher cites where restitution orders were overturned do not
support his predicate-offense theory. In Esler, the defendant was convicted of murder, but
the district court ordered that he pay res titution for damage done before the murder when
he fired a gun at a home as “target practice.” 553 N.W.2d at 6 5. This court overturned the
restitution order because the two crimes “were separated by several hours and had different
criminal objectives; therefore, they were not parts of the same behavioral incident.” Id. In
Latimer, the defendant was ordered to pay restitution for a murder even though she was
only convicted of accessory after t he fact. 604 N.W.2d at 104. This court overturned the
restitution order because the defendant’s actions were separate from the murder since she
was not present when it happened and only became involved after the fact. Id. at 105. In
Nelson, the defendant was convicted of thefts that occurred ov er a two-month timeframe,
but the district court ordered that the defendant also pay restitution for thefts that occurred
during the six months prior to the thefts for which she was convicted. 796 N.W.2d at 346.
This court limited the restitution order to the two -month period of time for which the
defendant was convicted. Id. at 347-48. Esler, Latimer, and Nelson all resulted in this court
overturning or reducing restitution awards, like Boettcher advocates for himself, but they
did so by highlighting the i mportance of the factual relationship between the conviction
and the restitution award.
A comment made by this court in Olson also fits with the logic of those cases. This
court said that if Olson had instead been “acquitted of theft involving a totally s eparate

8
entity” it would have been improper to order restitution to the second victim based on his
conviction of the burglary of the first victim. 381 N.W.2d at 901. We understand that to be
because there would have been no factual relationship between the burglary and the theft.
Thus, Olson, Esler, Latimer, and Nelson do not lend support to Boettcher’s argument that
this court should focus on what the predicate offense was for his burglary, but they instead
clarify how we determine whether a loss was directly caused by a crime.
That brings us to the question of whether the destruction of the cabin and camper
was directly caused by the burglary. There was evidence presented that the fire was started
during the burglary, including testimony from Klennert and Dunham, and the trail camera
pictures. Like in Olson (which affirmed the restitution order) —and unlike in Esler,
Latimer, and Nelson (which overturned restitution orders) —this shows that there was a
factual relationship in time, victims, and location between the conduct for which restitution
is being ordered and the crime of which Boettcher was convicted . Moreover, since the
evidence in dicates that the fire was started during the burglary, the destruction of the
camper and cabin cannot be said to be “only tangentially related” to the burglary. See
Miller, 842 N.W.2d at 477. Because the burglary and the fire are so factually intertwined,
we conclude that the district court did not abuse its discretion by ordering restitution.
Affirmed.