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This opinion will be unpublished and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
A18-0210

State of Minnesota,
Respondent,

vs.

Lynell Ellison,
Appellant.

Filed September 10, 2018
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-CR-16-2791

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

Janelle P. Kendall, Stearns County Attorney, Hannah J. Prokopowicz, Assistant County
Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jodi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the district court’s order for restitution arising from his
convictions of aiding and abetting first-degree aggravated robbery and aiding and abetting
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second-degree assault. Because there was sufficient evidence for the court to award
restitution in the amount it did, we affirm.
FACTS
Appellant and another individual stole marijuana from L.K. during the course of a
drug deal. They also stole L.K.’s backpack, iPhone, wallet, cash, a money order, and other
miscellaneous items. Appellant was convicted of aiding and abetting first-degree
aggravated robbery and aiding and abetting second-degree assault. After the robbery, L.K.
filed a restitution affidavit. The requested restitution included $648 for the stolen items
and $77 for lost wages. Appellant contested the restitution, claiming that L.K. did not
provide sufficient evidence to prove the value of what was taken. L.K. testified at the
contested restitution hearing. The district court also admitted into evidence L.K.’s affidavit
detailing his restitution request. In opposing L.K.’s request, appellant did not testify and
offered only an affidavit attacking L.K.’s credibility. The district court awarded L.K. $725
in restitution.
This appeal followed.
D E C I S I O N
District courts have broad discretion to award restitution. State v. Tenerelli, 598
N.W.2d 668, 671 (Minn. 1999). A district court’s order for restitution is reviewed for an
abuse of discretion. Id. at 672. “A victim of a crime has the right to receive restitution as
part of the disposition of a criminal charge” against a convicted offender. Minn. Stat.
§ 611A.04, subd. 1(a) (2016). Restitution may include out-of-pocket losses arising from
the offense, including lost wages. Id. When analyzing a restitution award, the district court
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must consider the economic loss suffered by the victim as a result of the offense and “the
income, resources, and obligations of the defendant.” Minn. Stat. § 611A.045, subd. 1(a)
(2016). A request for restitution must include information describing the “items or
elements of loss, itemize the total dollar amounts of restitution claimed, and specify the
reasons justifying these amounts . . . .” Minn. Stat. § 611A.04, subd. 1(a). The prosecution
bears the burden of demonstrating the amount of loss sustained by a victim as a result of
the offense by a preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3(a). At a
restitution hearing, “if the offender intends to challenge the amount of restitution or specific
items of restitution or their dollar amounts,” he bears the burden of production. Id. A
district court has discretion in determining the amount of restitution, as long as a factual
basis exists to connect the requested restitution to the crime committed. State v. Thole, 614
N.W.2d 231, 234 (Minn. App. 2000). Any dispute is resolved at the district court by the
preponderance of the evidence. Minn. Stat. § 611A.045, subd. 3(a).
First, appellant argues that L.K. did not adequately prove lost wages because he did
not provide tangible p roof or documentation. Though L.K. did not submit paystubs or
other documentation from his workplace to support his request for restitution, such proof
is not required. See State v. O’Brien, 459 N.W.2d 131, 135 (Minn. App. 1990) (approved
district court’s reliance on victim’s affidavit and testimony regarding costs without
requiring documentation). On its face, there is a factual basis for L.K.’s request for
restitution for $77 in lost wages. L.K. testified that he was paid $11 an hour at Buffalo
Wild Wings and that he missed seven hours of work over two days. In opposing L.K.’s
request for restitution, appellant submitted an affidavit that attacked the credibility of
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L.K.’s affidavit. The district court heard L.K.’s testimony at the restitution hearing and
appellant’s counsel cross-examined L.K. The district court was in the best position to
determine L.K.’s credibility, and we generally defer to a district court’s evaluation of
witness credibility. State v. Olson, 884 N.W.2d 906, 911 (Minn. App. 2016), review denied
(Minn. Nov. 15, 2016), see also Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015) (stating
that this court reviews credibility determinations under the “high threshold” of the clear
error standard). Because there was a factual basis in the record to support L.K.’s claim for
restitution for lost wages, and because appellant offered no contradictory evidence, the
district court did not abuse its discretion when it granted L.K. restitution for lost wages.
Second, appellant argues L.K. failed to prove that he lost $70 in cash and a $280
money order because L.K. failed to provide record documentation to support his request
and made inconsistent statements about his loss. With regard to documentation, L.K.
testified that he could not provide the receipt for the money order because the receipt was
in the stolen backpack. And, as discussed above, actual documentation is not required to
support a request for restitution.
With regard to L.K.’s statements, L.K. initially told police that no items were in the
backpack when it was stolen and that his stolen wallet contained between $40 and $70.
L.K. later claimed that his backpack contained a $280 money order that he intended to use
to pay r ent and that his wallet contained $70 in cash. At the restitution hearing, L.K.
testified that he was initially untruthful to police because he was worried about getting in
trouble for selling drugs. The district court credited L.K.’s testimony and granted L.K. the
restitution he requested . Because L.K.’s affidavit and testimony supports the conclusion
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that restitution is proper in the amount requested, and because appellant’s affidavit only
attacked L.K.’s credibility , the district court did not abuse its discretion by awarding the
requested restitution.
Third, appellant argues L.K. did not cite specific dollar amounts or provide tangible
proof to support his request for reimbursement for his iPhone insurance deductible, iPhone
case, backpack, protein shake mix, toothbrush, toothpaste, and a shaver. Appellant cites
State v. Keehn, which holds that a requestor of restitution cannot be granted restitution by
stating a general category of restitution without describing the individual items in that
general category. 554 N.W.2d 405, 408 (Minn. App. 1996). In Keehn, the victim of
domestic abuse requested restitution expenses after she moved to ensure her safety. Her
restitution affidavit requested repayment for “Misc[ellaneous] Cash receipts from setting
up new household,” but did not provide any documentation for what items were needed to
establish a new household. Id. at 407. The district court awarded her restitution, but this
court found the request insufficient, not because it lacked actual receipts, but because it did
not include some amount of detail about the general costs of items purchased. Id. at 408.
This court noted that “[t]here is nothing in the record that specifies the miscellaneous items
needed or the amounts spent,” which rendered it “impossible to determine how she or the
district court reached the precise figure . . . .” Id.
Here, L.K. provided a precise list of what was taken. L.K. provided a copy of his
iPhone insurance claim, which listed the deductible as $200. L.K. included a document
showing what it would cost to purchase a comparable backpack. L.K. did not provide
specific documentation for the iPhone case, protein shake mix, toothbrush, toothpaste, and
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shaver. However, those items’ values are easily quantifiable. L.K. requested $60 for those
items and appellant did not challenge the dollar amount requested, only that L.K. did not
provide sufficient documentation. As a whole, the restitution request provided by L.K. was
detailed enough under Keehn. Furthermore, the request complies with the statute, which
requires simply a description, an itemization of the restitution claimed, and the reasons
justifying the requested amounts. Minn. Stat. § 611A.04, subd. 1(a). L.K. provided the
necessary information, and the district court did not abuse its discretion by granting the
requested restitution.
Affirmed.