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This opinion will be unpublished and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
A19-2067

State of Minnesota,
Respondent,

vs.

Lisa Anne Olson,
Appellant.

Filed November 30, 2020
Affirmed; motion granted
Worke, Judge

Sherburne County District Court
File No. 71-CR-17-49

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

Kathleen A. Heaney, Sherburne County Attorney, Dawn R. Nyhus, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Joy M. Johnson, The Law Offices of Joy Johnson, LLC, Zimmerman, Minnesota (for
appellant)

Considered and decided by Worke, Pres iding Judge; Reilly, Ju dge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges her co nviction of wrongfully obt aining public assistance,
arguing that the district cour t erred by permitting the jury to interpret an ambiguous

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settlement agreement and that the prosecu tor committed misconduc t by publishing a
redacted audio recording. The state moves to strike doc uments in appellant’s reply
addendum. We affirm appellant’s convicti on and grant the state’s motion because the
documents are not in the district court record.
FACTS
Appellant Lisa Anne Olson was char ged with wrongfully obtaining public
assistance for failing to disclose that her brother, G.R., was th e beneficiary of an annuity
when applying for his public assistance. Olson was G.R.’s guardi an and representative
payee from 2006 to G.R.’s death in November 2015. The state brought the charge after
learning that Olson split annuity checks with her sister after their mother’s death. The
annuity was funded from a settlement agreement fo llowing their father’s workplace
accidental death. The language of the agreem ent states that “the amount of $1,750.00 be
distributed in monthly checks made payable to [Olson and G.R.’s mother] individually and
as mother and natural guardian of [G.R.], said amount to be for her own use and for the
care and maintenance of [G.R.], the minor son of the decedent.” The issue at trial was
whether Olson knowingly failed to report it as G.R.’s income when he was the beneficiary
of the agreement.
The jury found Olson guilty of wrongfully obtaining pu blic assistance. Olson
brought several postverdict motions, including th e two claims that she raises on appeal.
The district court denied Olson’s motions an d sentenced her to probation with a ten-year
stay of imposition, $106,750 in restitution, and 240 hours of community service. This
appeal followed.

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D E C I S I O N
Motion to strike
We begin by addressing the state’s mo tion to exclude from our consideration
documents in Olson’s reply addendum that are not in the district court record. “The record
on appeal consists of the documents filed in the district court, the offered exhibits, and the
transcript of the proceedings, if any.” Minn. R. Crim. P. 28.02, subd. 8. Appellate courts
strike any documents that are not part of the record. Fabio v. Bellomo, 489 N.W.2d 241,
246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993 ). Olson admits that the
objected-to documents are not part of the reco rd. For that reason, we grant the state’s
motion to strike and do not consider the documents in this appeal.
Jury instruction
Olson argues that, because “the jury had to determine, without the benefit of parol
evidence, the meaning of two or more ambiguous terms [in the settlement agreement] that
were susceptible to two or more reasonable inte rpretations,” that the district court should
have treated this as a question of law and instructed the jury on the legal meaning of the
terms.
We construe this as a challenge to th e jury instructions. In denying Olson’s
postverdict motions, the district court addressed this claim. It stated that the jury was
instructed that one element of the offense wa s that “G.R. was entitled to income through

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an annuity.” The district court stated that Ol son did not object to this instruction at trial.1
“A defendant generally forfeits the right to c ontest jury instructions on appeal when the
defendant fails to object at trial.” State v. Davis, 864 N.W.2d 171, 176 (Minn. 2015). But
we can review an unobjected-to jury instruction under the plain-error standard. Minn. R.
Crim. P. 31.02; State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015). In a plain-error analysis,
appellate courts review the jury instructio n to determine (1) whet her there was error,
(2) whether the error was plain, and (3) wh ether the error affect ed the appellant’s
substantial rights. State v. Kelley, 855 N.W.2d 269, 273-74 (Minn. 2014). If an appellant
meets these requirements, this court “may correct the error only if it seriously affect[s] the
fairness, integrity, or public repu tation of judicial proceedings.” Id. at 274 (quotations
omitted).
Olson relies on Dykes v. Sukup Mfg. Co. to support her argument that interpretation
of ambiguous contracts in criminal cases is a question of law for the district court. 781
N.W.2d 578, 581-82 (Minn. 2010). But Dykes provides the appellate standard of review
for ambiguous contracts in civil cases. Id. There is no precedent for a district court
interpreting a contract in a criminal case and instructing the jury on its meaning. Olson has
not met her burden in showing that the district court erred.
Even if the district court erred, the error is not plain. “An e rror is plain if it was
clear or obvious. Usually this is shown if the error contravenes case law, a rule, or a

1 We are referencing the district court’s order on what occurred at trial because Olson failed
to provide a comple te transcript. See Minn. R. App. P. 110.02, subd. 1(a) (stating it is
appellant’s burden to provide transcript).

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standard of conduct.” State v. Ramey , 721 N.W.2d 294, 302 (M inn. 2006) (quotation
omitted). “An alleged error does not contrave ne caselaw unless the issue is conclusively
resolved.” State v. Hollins, 765 N.W.2d 125, 133 (Minn. App. 2009) (quotation omitted).
Olson admits that this “issue is one of first impression for Minnesota courts.” The district
court, therefore, did not commit plain error.
Finally, Olson has not met he r “heavy burden of proving th at there is a reasonable
likelihood that giving the in struction in question had a si gnificant effect on the jury
verdict.” See Kelley , 855 N.W.2d at 283 (quotation omitted). “An erroneous jury
instruction will not ordinarily have a significant effect on the jury’s verdict if there is
considerable evidence of the defendant’s guilt.” Id. at 283-84. There is considerable
evidence of Olson’s guilt in this case.
G.R.’s caretaker testified that Olson told her that G.R. “had enough money to send
his nieces and nephew through college and then some.” Bank records show that the annuity
checks always ended up in Olson’s checking account, and that the checks were addressed
to “LISA A. OLSON AND [Ols on and G.R.’s sister] AS GU ARDIANS OF [G.R.],” and
later, “REP. LISA OLSON GRDN OF [G.R.] FBO: [G.R].” One check was addressed
only to G.R., and Olson transferred those funds from G.R.’s account to her own and called
the annuity finance company to change the name on future checks. Olson also submitted
a form to the annuity finance company on which she included G.R. among the annuitants
or beneficiaries.
The financial worker for G. R.’s account testified that Olson never reported any
income for G.R. other than his social security. A Sherburne County employee who assists

6
those applying for long-term-care medical assistance testified that all $1,750 of the annuity
check would have gone to G.R.’s medical spend-down if Olson disclosed it as his income.
The jury also heard two tele phone conversations between Ol son and a deput y. In the
second conversation, Olson stated that she was worried about what could happen to the
family if she reported the money as G.R.’s income because her mother did not report it for
20 years. She was also worried it would mess with G.R.’s eligibility and did not want that
to burden her family. Finally, she apologized for not being honest with the deputy earlier
and recognized that, in hindsight, “it was probably a very stupid decision” to not report the
income. Because of the amount of evidence showing Olson’s guilt, any error did not affect
her substantial rights. Olson’s argument fails under the plain-error analysis.
Prosecutorial misconduct
Olson argues that the prosecutor committed misconduct 2 by “fail[ing] to disclose
that it redacted [the investigator’s] statements about Olson’s lack of intent to Olson” in an
audio recording played for the jury.
Olson did not object to the alleged mi sconduct, thus the modified plain-error
analysis applies. Under the modified plain- error analysis, “the defendant must establish
both that the misconduct constitutes error and that the error was plain.” State v. Carridine,

2 The state asks that this be called prosec utorial error because the prosecutor did not
intentionally commit an error. Prosecutorial misconduct “implies a deliberate violation of
a rule or practice, or perhaps a grossly negl igent transgression,” while prosecutorial error
“suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from
time to time.” State v. Leutschaft, 759 N.W.2d 414, 418 (Minn. App. 2009). Even though
the distinction is valid, it does not affect our standard of review. Id. This opinion uses the
term “misconduct” because that is what Olson argues.

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812 N.W.2d 130, 146 (Minn. 2012). If the defendant meets these elements, the burden
shifts to the state to show that the error did not affect the defendant’s substantial rights. Id.
Olson argues that the prosecutor’s failure to disclose what was redacted qualifies as
error under Minn. R. Prof. Conduct 4.1 and 8. 4. Rule 4.1 states, “In the course of
representing a client a lawyer shall not knowi ngly make a false statement of fact or law,”
and rule 8.4 states that it is misconduct for attorneys to engage in dishonesty or “conduct
that is prejudicial to the administration of justice.”
During a trial break, the parties conferred to discuss the redaction of the reference
to financial exploitation in the audio record ing because the state dropped the financial-
exploitation charges. The following is the redacted portion of the conversation:
DEPUTY: Um the second piece of it is um if this money was
intended for [G.R.]’s benefit and it was going into your account
and he was not really seeing a di me of it, that’s considered
financial exploitation, okay? But I’m taking everything you’re
saying into account cause I do understand that this is a
settlement to the accident that caused your father’s death.

OLSON: Yep.

DEPUTY: So I’m not exactly su re in terms of um the bigger
picture um how that’s gonna be viewed in terms of is it income,
is it not income? Ya know what is it? Um so I’m gonna have
to go back to the county and kinda see how they’re going to
view that um because that coul d kinda change the way things
go. Basically what I’ve descri bed is ya know the fraud piece
and the exploitation piece are considered crimes, okay? And I,
I don’t think your intent was to completely screw your brother
out of money and things like that um ya know.

Olson did not meet her burde n in showing that the state erred and that the error was
plain. Rule 4.1 requires that the lawyer “knowingly” made the false statement. Olson has

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not shown that the prosecutor’s statement was knowing or false. The intent that the deputy
discussed matches the charges for financial e xploitation, not wrongfully obtaining public
assistance. Compare Minn. Stat. § 609.2335, subd. 1(1)( iii) (2010) (intent to deprive
vulnerable adult), with Minn. Stat. § 256.98, subd. 1 (2 010) (intent to defeat public
assistance purpose). Olson also fa ils to show that the state vi olated rule 8.4. The state
offered to let Olson listen to the audio recording to review the redactions and her attorney
declined. Olson did not meet her burden in establishing an error, much less that the error
was plain.
Even if this were plain error, it did not affect Olson’s substantial rights. As the
district court noted, the deputy testified about the redacted statement at trial, and Olson
brought it up in closing argument. Olson argues that she was prejudiced because the state
obtained answers from the deputy on redirect that suggested her opinion about Olson’s
intent was a lie used to put Olson at ease. Olson argues th at, if the jury heard the full
recording, they would know that this statement came at the end of the conversation, not at
the beginning where this tactic would usually occur. Bu t Olson asked two questions
confirming that the statement appeared at the end of the conversation on her recross
examination. Every omission that Olson argues prejudiced her was presented to the jury.
The state has met its burden in showing that no error affected Olson’s substantial rights.
Affirmed; motion granted.