State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2100

State of Minnesota,
Respondent,

vs.

Daniel David Baker,
Appellant.

Filed September 9, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-16-25498

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Jean Burdorf, Ass istant County
Attorney, Minneapolis, Minnesota (for respondent)

Jennifer M. Macaulay, Macaulay Law Offices, Ltd., St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Daniel Baker was convicted of nonpayment for improvem ent and two
counts of theft by swindle; hi s sentence included restitution. Baker challenged the
restitution pursuant to Minn. Sta t. § 611A.045 (2018), but the district court denied him a

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restitution hearing on the ground that his affidavit failed to state a challenge with sufficient
specificity. Baker appeals, arguing that the district court err ed by denying his challenge
without holding a hearing and th at the district court incorrect ly calculated the victims’
losses. We affirm.
FACTS
Baker owned and operated Lifestyle Basements, a company that served as a general
contractor in basement-remodeling projects. Lifestyle’s contracts with homeowners called
for structured payments tied to different stages in the renovat ion. Lifestyle was supposed
to use these payments to pay subcontractors for goods and services for the next stage of the
project, but, in 2014, it stopped doing so. When Lifestyle’s no npayment happened before
the subcontractors completed the work, work on projects went un done; when the
nonpayment happened after the work was completed, subcontractors filed or attempted to
file mechanic’s liens on homeowners’ houses.
In January 2017, the state charged Baker by amended complaint with four counts of
theft by swindle and one count of nonpayment for improvement. F ollowing a jury trial,
Baker was found guilty of two of the four counts of theft by sw indle and the single count
of nonpayment for improvement.
In its sentencing memorandum, the state asked that Baker be ord ered to pay
$711,328.08 in restitu tion—$440,354.78 to homeowners and $270,9 73.30 to
subcontractors. In June 2018, the district court issued a sente ncing order that included
restitution in the amount request ed by the state. The district court separately, but
simultaneously, issued its findi ngs and order specifically rega rding restitution. The court

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found that 21 victims—12 homeowners and 9 subcontractors—were victims of the conduct
charged by counts three through five. It found that their colle ctive losses were
“$711,328.08 less any amount for the se losses already recovered by each victim in
bankruptcy or the contractor recovery fund.” The district court identified the total economic
loss each victim suffered but did not further itemize their losses.
Baker moved for a hearing to challenge the restitution award, and the district court
scheduled the hearing for late September 2018. Baker then filed an affidavit in which he
set out his challenge to “[t]he dollar amounts asked for by the state to be awarded to the
homeowners.” For 11 of the 12 homeowners, Baker stated: “I am contesting this restitution
amount due to the percentage of the project that was completed by Lifestyle Basements.
Per the project documentation to be provided, this homeowner re ceived a Basement that
was [X]% complete.” The value of “X” varied from victim to vict im, depending on how
much of the basement Baker claimed that Lifestyle had completed. In an addendum labeled
“Exhibit A,” Baker provided break downs showing how much each ho meowner had paid
and what percentage of the work had been done. He then calculat ed an amount labeled
either “H/O Over paid for work completed” or “H/O Under paid fo r work completed” for
each homeowner. Though he does not say so explicitly, it appear s that the claimed over-
or underpayment was calculated by multiplying the total price o f the project by the
percentage of the project that was completed and subtracting th e resulting dollar amount
from the amount that the homeowner paid Lifestyle.
The state responded with a memorandum arguing that Baker’s affi davit did not
satisfy his burden of production under Minn. Stat. § 611A.045 and asking that the challenge

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be summarily denied. The state also argued that Baker’s suggest ed method of calculating
out-of-pocket losses did not represent homeowners’ losses because it incorrectly assumed
that homeowners received value corresponding to the percentage of the project that was
completed. Attached to the memorandum were summaries of the 11 challenged requests
for restitution, providing a general itemization of each homeowner’s claim.
Two days before the restitution hearing, Baker filed a second affidavit, accompanied
by three spreadsheets, in which he argued that three subcontrac tors were not entitled to
restitution in the amounts they claimed because they were charging Lifestyle inflated rates
for their work. The state moved to dismiss Baker’s challenge to restitution for the three
subcontractors, arguing that the affidavit was untimely.
The restitution hearing began with arguments on the state’s req uest that Baker’s
restitution challenge be summarily rejected. The district court started by summarizing its
understanding of the parties’ arguments regarding homeowner res titution and dismissed
Baker’s restitution challenge with respect to the subcontractors because the affidavit was
untimely. The parties then disputed two main points: first, the proper method for
calculating the amount of restitution owed, and, second, whethe r Baker’s affidavit raised
the argument that the claims for restitution were invalid becau se their amounts were not
supported by receipts or invoices. The district court concluded , orally on the record, that
Baker had not met his burden of p roduction because his affidavi t did not argue that the
amounts of restitution were unsupported by documentation and be cause the restitution
calculus that his affidavit relied on did not adequately describe the victims’ out-of-pocket
losses. The district court subsequently issued an order denying Baker’s restitution

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challenge, stating that Baker’s affidavit failed to present his challenges to the restitution in
sufficient detail.
Baker appeals.
D E C I S I O N
Victims of crime have a right to receive restitution that inclu des, but is not limited
to, compensation for “any out-of-pocket losses resulting from t he crime.” Minn. Stat.
§ 611A.04, subd. 1(a) (2018). In s ervice of this right, courts are instructed to “request
information from the victim to determine the amount of restitut ion owed.” Id. That
information is to be obtained “in affidavit form or by other co mpetent evidence.” Id. The
information must “describe the items or elements of loss, itemize the total dollar amounts
of restitution claimed, and specify the reasons justifying thes e amounts.” Id. Restitution
may be ordered at sentencing. Id.
An offender may challenge restitution at sentencing or in a separate hearing specific
to the restitution request. Minn. Stat. § 611A.045, subd. 3(a). The offender bears the
burdens of both pleading and production. State v. Thole, 614 N.W.2d 231, 235 (Minn. App.
2000). An offender’s production “must include a detailed sworn affidavit of the offender
setting forth all challenges to the restitution . . . and specifying all reasons justifying dollar
amounts of restitution which differ from the amounts requested.” Minn. Stat. § 611A.045,
subd. 3(a). The affidavit, in ad dition to being a required elem ent of the offender’s
production, is also “the sole vehicle by which the offender can meet the burden of
pleading.” Thole, 614 N.W.2d at 235. Once an offe nder satisfies the burdens of pleading
and production, the p rosecution bears the ultimate burden of pr oving the amount of each

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victim’s loss. Minn. Stat. § 611A.045, subd. 3. But the distric t court need not determine
whether restitution is justified by a preponderance of the evid ence if there is no “valid
dispute,” and the district court need not consider any challenges not raised in the affidavit.
Thole, 614 N.W.2d at 235.
I. The district court did not err by denying Baker’s challenge without a
restitution hearing.

Baker argues that the district court erred by not granting him a restitution hearing.
Baker does not directly argue that his affidavit was sufficient ly specific under section
611A.045, subdivision 3(a). He does, however, argue that the ca lculation of the victims’
economic losses must account for the value provided by the work that Lifestyle completed.
Though Baker does not explicitly identify it as such, we will a nalyze this argument as a
contention that his affidavit wa s sufficiently specific to crea te a “valid dispute” as to the
proper amount of restitution. See id.
The offender’s burden of pleading is not necessarily a high bar. In a case awarding
restitution to the children of a murder victim, the supreme court concluded that an affidavit
making a “blanket assertion that [the children’s] expenses were ‘not allowable’” is
“sufficiently detailed for purposes of the statute.” State v. Palubicki, 727 N.W.2d 662, 665
n.3 (Minn. 2007). While the affidavit in that case met “only th e bare minimum definition
of ‘detailed,’” it was nonetheless sufficient to preserve the a rgument. Id. (quoting Minn.
Stat. § 611A.045, subd 3(a)).
Although Baker’s affidavit contains numerous details, it noneth eless fails to meet
“the bare minimum definition of ‘detailed’” because it does not explain how the details that

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it provides should affect the a mount of restitution awarded. Baker’s affidavit begins with
a general assertion that “the in formation provided in the attac hed documents shows the
actual amounts that the homeowners have lost using Lifestyle Basements.” Then, for 11 of
the 12 homeowners, Baker’s affidavit states that he is “contest ing this restitution amount
due to the percentage of the project that was completed by Lifestyle Basements.” Attached
to the affidavit are spreadsheets showing how much homeowners had paid to Lifestyle, the
percentage of the project that had been completed, and the difference between the amount
that homeowners paid and the pe rcentage completed multiplied by the total value of the
project.
At best, Baker’s affidavit asserts that he provided value to homeowners in the form
of a partially completed basemen t and that homeowners are entit led to restitution only in
the amount that they paid above the value they received, calculated by multiplying the total
value of the contract by the percent of the project that was completed. But the district court
concluded that, as a matter of law, Baker’s affidavit relied on the incorrect measure of
direct economic losses. It concluded that the losses directly c aused by Baker’s crimes are
properly calculated by giving homeowners the benefit of their b argain. See Minn. Stat.
§ 611A.04, subd. 1(a) (stating th at restitution is not limited to out-of-pocket losses).
Homeowners expected to pay Baker a certain amount and to receive a complete basement.
Their direct economic losses are whatever they had to pay beyond their expectation in order
to receive a complete basement. See B.F. Goodrich Co. v. Mesabi Tire Co. , 430 N.W.2d
180, 182 (Minn. 1988) (describi ng the “benefit-of-the-bargain” rule, and stating that

8
damages in Minnesota are genera lly limited to out-of-pocket los ses except when the out-
of-pocket rule does not work).
Indeed, Baker himself now admits that the argument apparently p resented by his
affidavit—that homeowners were only entitled to the amount that they overpaid relative to
the percentage of the project that was completed—is incorrect, as it would lead, as he says
in his brief to this court, to an “absurd” and “preposterous” result in that some homeowners
would be deemed to have received a net benefit from his crime. Nonetheless, he claims
that his affidavit indirectly argued that the district court should account for whatever value
he did provide to the homeowners and that he was entitled to a hearing in order to
demonstrate what that value was.
But, as the district court explained at the hearing, the percen tage of a project that
was completed is not determinative of how much value a homeowne r received from
Lifestyle’s work. That is, even if Baker had been able to prove every single detail on his
spreadsheet, it would not have changed the homeowners’ losses. The homeowners’ costs
fall into two categories: the amount paid to Lifestyle for its work and the amount paid to
others to finish the basement (including amounts paid to Lifestyle’s unpaid subcontractors
or to attorneys to clear the homeowners’ titles or to seek civi l recovery from Lifestyle).
The actual value of the work pe rformed by Lifestyle is accounte d for by the amount a
homeowner had to pay to finish the basement—the more value Lifestyle provided, the less
the homeowner presumably would have had to pay someone else to finish the job.
Baker could have attacked the homeowners’ claims: he could have asserted that the
homeowners overpaid the other contractors they hired or that the basements they received

9
had higher values than what they had originally contracted with Lifestyle for. But he did
not do so; he only said that he was “contesting [each] restitut ion amount due to the
percentage of the project that was completed by Lifestyle Basem ents.” Because that
statement cannot reasonably be construed to challenge the homeo wners’ losses, Baker’s
affidavit failed to create a valid dispute over the proper amou nt of restitution, and the
district court was not required to hold an evidentiary hearing to determine whether
restitution was justified. See Thole, 614 N.W.2d at 235 (“Until a dispute exists, the district
court need not determine whether restitution is justified by a preponderance of the evidence
. . . .”).
But Baker argues that his affidavit should be considered adequate because he never
received affidavits or supporti ng documentation fr om the homeow ners explaining how
economic losses were calculated. He contends that he was trying to challenge the
sufficiency of the evidence but that he could not do so with sp ecificity because he did not
have the affidavits and documents supporting the award.
There are two problems with this argument. First, while it is true that the affidavits
and documentation in support of restitution are not in the reco rd, the record reflects that
Baker was in possession of them. At the hearing on whether to g o forward with an
evidentiary hearing, Baker’s counsel admitted to having received from the state over 900
pages of affidavits and documenta tion regarding the victims’ lo sses. Thus, Baker’s claim
that he did not know the basis of the restitution claim fails. Second, even if Baker did not
know the basis of the restituti on claims, that fact would not h ave prevented him from
pleading an argument against th e sufficiency of the evidence—al l he had to say was that

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the evidence was insufficient to support the district court’s restitution award. See Palubicki,
727 N.W.2d at 665 n.3.
Because the only challenge Baker even arguably made in his affi davit was invalid
as a matter of law, Baker did not satisfy his burden of production and pleading. See Thole,
614 N.W.2d at 235. The district court therefore did not err by denying a restitution hearing.
II. Baker’s affidavit failed to rai se any additional challenges to restitution.

In his brief to this court, Baker makes a variety of attacks on the district court’s
award of restitution. He argues th at certain claims should be b arred because of collateral
bankruptcy proceedings or at lea st that there was insufficient evidence to show that the
claims were not barred by those proceedings. He argues that the re was no evidence
supporting the district court’s award of attorney fees to homeo wners. He claims that the
district court’s award includes costs arising from conduct that was the basis for charges of
which he was acquitted. He argues that there was no evidence at all supporting the amounts
of restitution. And he argues that awards to subcontractors were not supported by evidence.
But Baker’s affidavit 1 to the district court said onl y that he challenged restitution
based on “the percentage of [each] project that was completed b y Lifestyle Basements.”
There is no reasonable way to interpret Baker’s affidavit as arguing that the state failed to
introduce evidence supporting re stitution, or raising the issue of his acquittal on certain

1 The district court rejected Baker’s second affidavit, which pu rported to challenge
subcontractor awards, because t he affidavit was untimely. See Minn. Stat. § 611A.045,
subd. 3(a) (providing that affidavits must be filed at least fi ve business days before a
restitution hearing). Baker does not challenge that decision on appeal.

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charges, or claiming that civil settlements should limit restitution. Failure to raise a specific
objection by affidavit waives that objection. Thole, 614 N.W.2d at 235-36 (refusing to
review objections not raised in an affidavit for plain error). Because Baker’s affidavit did
not plead the arguments he now raises in his brief to this court, we cannot consider them.2
In sum, Baker raised, at best, only one argument in his affidav it challenging
restitution. Because that argument failed, as a matter of law, to create a valid dispute, the
district court did not err in denying his restitution challenge without holding an evidentiary
hearing.
Affirmed.

2 Further, the trial transcript in this case may contain evidence of the homeowners’ losses.
Thus, even if Baker had raised his challenges to the sufficienc y and meaning of the
evidence, his failure to supply trial transcripts would prevent him from arguing those issues
in this appeal. See State v. Terpstra , 546 N.W.2d 280, 283 (Minn. 1996) (holding that
restitution may be based on the evidence at trial); Duluth Herald & News Tribune v.
Plymouth Optical Co., 176 N.W.2d 552, 555 (Minn. 1970) (holding that, when an appellant
fails to provide a transcript, review is limited to the question of whether the district court’s
conclusions of law are supported by its findings of fact).