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This opinion will be unpublished and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
A19-0796

State of Minnesota,
Respondent,

vs.

Jethro Togar Gboeah,
Appellant.

Filed February 3, 2020
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-17-20534

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Ch ief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Kirk,
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
FLOREY, Judge
In this sentencing appeal challenging restitution, appellant argues that the district
court abused its discretion by ordering that he pay over $18,000 because the state did not
adequately demonstrate that he was capable of paying that amount. We affirm.
FACTS
In June 2018, appellant Jethro Gboeah plead ed guilty to attempted first -degree
premeditated murder and was sentenced to 15 years in prison. Thereafter, the victim sought
restitution, and a restitution hearing was held. Gboeah challenged restitution, arguing that
he was unable to pay the amount soug ht due to his incarceration. Specifically, Gboeah
argued below, and now on appeal, that it would take him 360 years to pay the award of
$18,215.24 because he makes approximately $1.90 every two weeks in prison. While the
district court did consider his a bility to pay, Gboeah argues, such was based only on the
prosecutor’s unsupported assertions—namely, that Gboeah would leave prison at a young
age and have earnings capacity—in violation of recent case law. We affirm.
D E C I S I O N
Victims of criminal a cts have the right to restitutio n if the offender is convicted.
Minn. Stat. § 611A.04, subd. 1(a) (2014). Restitution serves to restore victims to the
financial positions they would have occupied had the criminal conduct not occurred. State
v. Palubicki, 727 N.W.2d 662, 666 (Minn. 2007). District courts have “wide discretion in
ordering restitution and determining the appropriate amount of restitution.” State v.
Anderson, 507 N.W.2d 245, 246 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993).

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A di strict court’s decision to award restitution is, therefore, subject to an abuse -of-
discretion standard of review . State v. Tenerelli , 598 N.W.2d 668, 672 (Minn. 1999 ).
Section 611A.045 enumerates two criteria that the district court must consider prior t o
awarding restitution: “(1) the amount of economic loss sustained by the victim as a result
of the offense; and (2) the income, resources, and obligati ons of the defendant.” Minn.
Stat. § 611A.045, subd. 1(a) (2018). Gboeah only challenges the district court’s treatment
of the second factor.
Gboeah acknowledges that prior cases have held (1) that there are no strict
guidelines for a district court when considering a defendant’s ability to pay; (2) that a
district court is not required to make specific findings on the issue; and (3) that a defendant
need not be actually able to pay the full amount. State v. Maidi, 573 N.W.2d 280, 285-86
(Minn. 1995); State v. Miller , 842 N. W.2d 474, 479 (Minn. App. 2014) , review denied
(Minn. Apr. 15, 2014) . He argues, however, that the Minnesota Supreme Court’s 2017
decision in State v. Willis —holding that the rules of evidence apply to restitution
hearings—negates these prior holdings and changes the requirements for r estitution
awards. 898 N.W.2d 642. Because the rules of evidence now apply to restitution hearings,
Gboeah argues, the prior cases do not control , and the state must provide evidence o f a
defendant’s ability to pay the amount of restitution.
First, it must be noted Gboeah’s argument confuses the effect of the Willis decision,
as it does not support the conclusion he posits. The rule announced in Willis—that
evidentiary rules must be followed in restitution hearings—affects only how the state meets
its burden. See id. at 648. It does not, as Gboeah maintains, change what the state’s burden

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is, nor what is needed to meet it. He asserts that, after Willis, it is insufficient for the
prosecutor to merely assert a belief that a defendant can pay restitution, as “such assertions
do not comport with the Rules of Evidence.” However, he does not, and cannot, identify
any evidentiary rule that would be violated by such an assertion. This is because the rules
of e vidence only guide the means by and circumstances under which evidence ma y be
introduced—not the quality or quantity of evidence necessary to meet a given burden of
proof. See Black’s Law Dictionary 673-74 (10th ed. 2014) (defining “evidence” and “rules
of evidence” as “[t]he body of law regulating the admissibility of what is offered as proof
into the record of a legal proceeding” (emphasis added)). Therefore, it is simply a non
sequitur to argue that the production of evidence is required because compliance with the
rules of evidence has been mandated.
Further, Gboeah’s argument has a related but more-salient shortcoming. In Willis,
the issue concerned the means by which the prosecution proved the amount of loss
sustained by the victim; that is, how the state met its burden of demonstrating the propriety
of the award. Willis, 898 N.W.2d at 644 -48 (addressing the issue of whether letters and
other documents from attorneys and real -estate agents attesting to the amount of loss the
victim sustained constituted inadmissible hearsay). Here, while the issue Gboeah raises—
that the prosecution asserted without supporting evidence that he would be able to pay —
does indeed relate to how the state presents its case, Gboeah does not explain how or why
the ability-to-pay consideration is the state’s burden in the first place.
The burdens of proof for restitution awards are well-defined by statute. An offender
challenging a restitution award bears the “burden of pleading and the burden of production.

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Under the statute, the affidavit is both the sole vehicle by which the offender can meet the
burden of pleading, and an es sential element of the offender’ s case required to meet the
burden of production. ” State v. Thole , 614 N.W.2d 231, 235 (Minn. App. 2000)
(summarizing offender’s burdens set forth in Minn. Stat. § 611A.045 , subd. 3(a)) . The
prosecution, in contrast, has only the burden “of demonstrating the amount of loss sustained
by a victim as a result of the offense and the appropriateness of a particular type of
restitution.” Minn. Stat. § 611A.045, subd. 3(a) ; Thole, 614 N.W.2d at 235 (“O nce an
offender raises a proper challenge to the restitution order, the prosecution bears the burden
of proving the propriety of the restitution by a preponderance of the evidence .”). As the
state notes here, there is no authority for the proposition that the state must prove, or even
demonstrate in any way, the defendant’s ability to pay. The statute’s only mention of such
a consideration is where it is described as a factor for the court to consider. Minn. Stat.
§ 611A.045, subd. 1(a)(2).
While it is true that the state asserted that Gboeah would leave prison at a relatively
young age and have earnings potential, and while it is true that it offered no evidence at the
time to support that assertion, the state did not so assert in an attempt to meet its statutory
burden. Therefore, even if Gboeah was correct in arguing that Willis requires the state to
present evidence, the statement he challenges here would be unaffected, as the prosecution
need not prove, nor even argue, that he is able to pay the restitution award. Thus, the
district court did not abuse its discretion in awarding restitution.
Affirmed.