State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0111

State of Minnesota,
Respondent,

vs.

Luot Tut Makuac,
Appellant.

Filed January 3, 2022
Affirmed in part, reversed in part, and remanded.
Bryan, Judge

Blue Earth County District Court
File No. 07-CR-20-795

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, Mitchell Zillman, certified student attorney, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presid ing Judge; Florey, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal, appellant challenges his convictions and the restitution ordered
by the district court. Appellant argues that the admission of certain identification testimony
violated the Confrontation Clau se and contravened the rules of evidence. We conclude,
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however, that any error was harmless beyond a reasonable doubt and affirm the conviction.
Appellant also argues that the district court erred when it ordered restitution. Specifically,
appellant disputes the causal connection between the offense and the loss claimed by the
victim, and that the district court failed to consider appellant’s ability to pay the restitution
amount. We conclude that appellant forfeited the causation challenge. However, because
we are unable to determine whether the district court considered appellant’s ability to pay,
we remand the case to the district court for further findings.
FACTS
On February 29, 2020, three men entered the home of A.S. without permission, held
A.S. at gun point, and stole several items. A.S. reported the crim e and law enforcement
officers detained three suspects. The suspects were transported back to the home, and law
enforcement officers asked A.S. whether the suspects were the individuals who had robbed
him.1 A.S. identified two of the individuals. After further investigation, respondent State
of Minnesota charged appellant Luot Tut Makuac with six felony offenses, including aiding
and abetting first-degree aggravated robbery and aiding and abetting first-degree burglary.
The case proceeded to trial and the jury found Makuac guilty of five offenses after the state
dismissed one offense. The jury also found that the state had established three aggravating
sentencing factors. At sentencing, the dist rict court granted the state’s motion for an
aggravated departure, sentenced Makuac to two, concurrent prison terms of 96 months, and

1 The district court denied Makuac’s pr etrial motion to suppress the “show-up”
identification, and Makuac does not challenge that decision on appeal. Instead, the appeal
relates only to the presentation of this evidence at trial, not the constitutionality of the show-
up identification.
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ordered him to pay restitution. Makuac appeals. Given the issues raised, we first address
the evidence presented at trial before summa rizing the district court’s decision to order
restitution.
A. Evidence Presented at Trial
At trial, the state presented the testim ony of several witnesses, including law
enforcement officers and A.S. The district court also admitted several exhibits, including
a recording of the 911 call made by A.S. re porting the crime, phot os of A.S.’s home,
surveillance video, firearms, and photographs documenting items that law enforcement
recovered during a search of Makuac’s residence.
According to the testimony of A.S., at approximately midnight on February 29,
2020, three men came to A.S.’s home. The men knocke d on the door, and when A.S.
answered, they entered the home without permission. A.S. recalled that one of the men
wore a grey hooded sweatshirt, one wore a black jacket and beanie, and one wore squared
glasses and a black hooded sweatshirt with white lettering on the sleeves. After entering
the home, the men asked for A.S.’s roommate who was not present at the time. A.S. asked
the men to leave, but they re fused. Two of the men pointe d guns at A.S. and demanded
money and anything of value. At one poin t, the man wearing a black hooded sweatshirt
and squared glasses pointed a gun at A.S., wh ile the other two ransacked the house. At
another point, the man wearing the grey hooded sweatshirt also pointed a gun at A.S. A.S.
testified that the weapons were held close en ough to him that he no ticed that the serial
number on one weapon had been scratched off and that the other weapon had a laser sight
mounted on it. A.S. also explained that while he was held at gunpoint, the men looked
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through the rooms of the home, one at a time. The men took personal property belonging
to A.S., including two cell phones, two videogame consoles, a laptop, and other items.
After the men left the home, A.S. ran after them and caught a glimpse of the vehicle
that the men got into before they drove away. A.S. then called 911. A.S. also testified that
he provided descriptions of the individuals during the 911 call and when speaking with
police officers, including what the individuals were wearing and what type of guns were
used. A.S. did not testify about any subsequent statements that he made during the show-
up identification.
The state also presented the testimony of Sean McClinton, a police officer who
responded to the 911 call. McClinton testified that he arrived at A.S.’s home and obtained
a physical description of the assailants and the clothes that they were wearing. McClinton
relayed this information to other law enfo rcement officers. Approximately 45 minutes
later, McClinton learned that law enforcemen t officers had detained three suspects:
Makuac, K.N., and C.B. McClinton explained to the jury that th e three suspects were
transported to the area near A.S.’s home, and McClinton and Officer Ken Baker conducted
a show-up identification. McClinton recounted that A.S. confirmed that K.N. and Makuac
were both involved in the ea rlier incident. Makuac was the person A.S. previously
described as wearing a grey sweatshirt, and K.N. was the person that A.S. previously
described as wearing a black hooded sweatshi rt and squared glasses. McClinton also
testified that A.S. stated he was 100% certa in about his identifica tion of K.N. and 90%
certain about his identification of Makuac.
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The state also presented Baker’s testimony regarding statements that A.S. made
during the show-up identification. Specifi cally, Baker testified that law enforcement
officers asked A.S. whether the vehicle that they had recovered when they detained the
three assailants was the same vehicle that A.S. saw driving away from his home. According
to Baker’s testimony, A.S. positively identified the vehicle, but stated that he was only 75%
certain of that identification. A.S. could not positively identify C.B. as the third individual
during the show-up identification.
Makuac objected to McClinton’s testimony of A.S.’s statements during the show-
up identifications. The district court admi tted the testimony as a statement of prior
identification. Makuac made the same hear say objection to Baker’s testimony and the
district court admitted the evidence as “founda tional.” In addition, before McClinton’s
testimony about the show-up identifications, th e district court read Minnesota Criminal
Instruction number 3.19, the model cautionary jury instru ction regarding out-of-court
identification statements.
At the beginning of the second and last day of trial, the jury submitted four questions
to the district court, but only one is relevant to this appeal.2 In that question, the jury asked
“why didn’t [A.S] get asked about the show-up details in his testimony or viewing the car

2 The jury also asked why they could not hear additional DNA evidence, whether they
could have copies of the preliminary instructions, and whether they could have transcripts
of A.S.’s testimony. After discussing thes e questions and potential answers with the
parties, the district court instructed the jury to consider all the evidence as presented during
the trial and explained that the district court would provide written instructions at the close
of the trial, but that transcripts would not be available.
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so that it is not hearsay?” Af ter discussing the questions with trial counsel, the district
court wrote the following response to the jury: “I can’t answer that.”3
Makuac renewed his hearsay objections to McClinton’s and Baker’s testimony
regarding A.S.’s statements during the show-u p identification. Makuac also argued that
admission of the testimony violated the Confrontation Clause because he could not cross-
examine A.S. about his statements. The district court overruled the objections and admitted
the testimony.
In addition to the testimony of A.S. and the testimony regarding the statements that
A.S. made during the show-up identification, the state also presented the 911 call, which
included statements from A.S. describing th e suspects and their vehicle. Photographs
received into evidence corroborate A.S.’s recollection of the incident and the actions of the
suspects at his home. The surveillance vide o of the porch outsid e A.S.’s home also
corroborates A.S.’s testimony and his physical description of the suspects and their vehicle.
The state also presented evid ence regarding items recovered during the investigation,
including from a search of the vehicle and from a search of C.B.’s bedroom closet. The
trial exhibits included photogra phs of items and several items themselves. For example,
the district court admitted evidence of firear ms with distinctive features that matched
A.S.’s descriptions: a handgun with a laser sight and a handgun with a scratched-off serial
number. The firearm with a scratched-o ff serial number was recovered from C.B.’s

3 Neither party provided this court with copi es of the hand-written questions or responses
from the court. Instead, the district court read into the record the questions and answers,
and the trial transcript includes the district court’s discussion of the jury questions with the
parties.
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bedroom closet. In addition, the district court admitted evidence regarding an Adidas
backpack containing A.S.’s stolen electron ics, which was also recovered from C.B.’s
bedroom closet. The district court furt her admitted DNA evidence, including testimony
regarding known DNA samples obtained from K.N., C.B., and Makuac and unknown DNA
samples from the grips and triggers of the handguns. According to testimony from an
expert witness employed by the Minnesota Bureau of Criminal Apprehension (BCA),
Makuac’s DNA matched a major male DNA profile obtained from the grip of the handgun
recovered from C.B.’s closet. The BCA expert further testified that the male DNA profile
obtained from this handgun did not match the DNA of the other two suspects.
B. Order of Restitution
At Makuac’s sentencing hear ing, the district court rece ived A.S.’s affidavit of
restitution and permitted A.S. to present a victim impact statement. A.S. explained that as
a result of the incident, he dropped out of school and moved out of Mankato:
So, because of this, um, and the incident that happened, I had
to proceed to drop out of college . I did not feel safe in the
household that I was in, or staying at at the time in Mankato.
And I had to move back up North to my relatives and family.
Yeah, so, I-I dropped out. I had a career plan set to go on to
tech school. Now I’m down money, down, you know,
everything. Just kind of back to square one at this point.

Makuac’s presentence investigation report (PSI) was submitted to the district court as well.
The PSI did not include detailed information about Makuac’s ability to pay restitution. It
did note that from 2018 until his arrest, Makuac was employed for only five months. The
PSI also noted that Makuac lost this job when he was arrested for the instant offense. The
district court ordered restitution in the amount of $5,450, due within one year and payable
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out of Makuac’s prison earnings. Makuac made no objections prior to, during, or after the
sentencing hearing regarding restitution until this appeal.
DECISION
I. Admission of Testimony Regarding the Show-Up Identification
Makuac argues that the district court viol ated his constitutional right to confront
witnesses and misapplied the rules of evidence when it admitted McClinton’s and Baker’s
testimony regarding the statements of A.S. during the show-up identification. We need not
decide whether the district court erred in admitting the testimony because the state
established that any error was harmless beyond a reasonable doubt.
The Confrontation Clause provides a criminal defendant the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI; Minn. Const. art. I, § 6; see State
v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (“We apply an identical analysis under both the
state and federal Confrontation Clauses”). Admission of an out-of-court statement violates
the Confrontation Clause when “the statemen t in question was testim onial, the statement
was admitted for the truth of the matter asse rted, and the defendant was unable to cross-
examine the declarant.” Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford
v. Washington, 541 U.S. 39, 59 n.9 (2004). We review de novo whether the admission of
evidence violates the Co nfrontation Clause. State v. Caulfield , 722 N.W.2d 304, 308
(Minn. 2006). When an error implicates a constitutional right, a new trial is required unless
the state can show beyond a reasonable doubt that the error was harmless. State v. Sanders,
775 N.W.2d 883, 887 (Minn. 2009) (citing State v. Scott , 501 N.W.2d 608, 619 (Minn.
1993)). An error is harmless beyond a reasonable doubt if the guilty verdict was surely
9
unattributable to the error. Caulfield, 722 N.W.2d at 314 (quoting State v. Juarez , 572
N.W.2d 286, 291 (Minn.1997), and State v. Al-Naseer , 690 N.W.2d 744, 748 (Minn.
2005)).4
In determining whether the verdict was surely unattributable to an error, we examine
the record as whole, consid ering the following five factor s: (1) how th e evidence was
presented; (2) whether the evidence was “highly persuasive”; (3) whether the evidence was
highlighted in closing arguments; (4) whethe r the defendant effectively countered the
evidence; and (5) whether the other ev idence of guilt was overwhelming. Caulfield, 722
N.W.2d at 314 (citing Al-Naseer, 690 N.W.2d at 748). The final factor is not conclusive,
but “[o]verwhelming evidence of the defendant’s guilt is a f actor, often a very important
one.” Id.; see also State v. Hall, 764 N.W.2d 837, 842 (Minn. 2009); State v. Matthews,
800 N.W.2d 629, 634 (Minn. 2011).
In this case, only one of these five factors supports Makuac’s argument: the parties’
discussion of the show-up identifications durin g their closing arguments. The remaining
factors all favor the state, and the fourth a nd fifth factors strongly support the conclusion
that the verdict was surely unattributable to any error. We discuss each factor in turn.

4 Because we conclude that the state has established harmlessness under the constitutional
standard, we necessarily also conclude that any error admitting inadmissible hearsay into
the record was also harmless under the lower standard that applies to violations of the rules
of evidence. See State v. Robinson , 718 N.W.2d 400, 407 (Minn. 2006) (“Erroneous
admission of evidence that does not have constitutional implications is harmless if there is
no ‘reasonable possibility that the wrongfully admitted evidence significantly affected the
verdict.’” (quoting State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994)). Therefore, we
need not address Makuac’s hearsay challenge or the state’s alternative arguments that the
testimony satisfied the excited-utterance and residual hearsay exceptions.
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First, the presentation of the evidence in question favors the st ate. Although the
district court admitted eviden ce of A.S.’s statements duri ng the show-up identification
through McClinton’s and Baker’s testimony, this testimony was presented without drama
or fanfare. See State v. Sterling, 834 N.W.2d 162, 174 (Minn. 2013) (concluding that the
error was harmless in part because the introduction of the evidence was “without drama or
fanfare and likely had no unduly prejudicial e ffect”). The testimony was relatively brief
and part of the state’s pr esentation of a much larger case-in-chief. The first Al-Naseer
factor weighs heavily in favor of the state.
Second, we cannot characterize McClinto n’s and Baker’s test imony of A.S.’s
statements during the show-up identification as “highly persuasive.” McClinton and Baker
both testified that A.S. expressed varying de grees of certainty in his identifications.
Specifically, McClinton and Baker explained th at A.S. was 100% certain that K.N. was
involved, but was not as certa in when identifyi ng Makuac (90% certain) or the vehicle
(75% certain). In addition, the testimony of McClinton and Baker regarding A.S.’s
statements was corroborated by statements made by A.S. on direct examination and made
by A.S. in the 911 call. Makuac raises no co ncerns regarding the admission of this other
identification evidence on appeal, and we conclude that McClinton’s and Baker’s
testimony has limited additional persuasiveness beyond that of the other identification
evidence admitted at the trial. Finally, the jury asked why A.S. himself did not testify
regarding his statements during the show-up id entification, and in its question, the jury
classified McClinton’s and Baker’s testimony as hearsay: “[W]hy didn’t [A.S.] get asked
about the show-up details in hi s testimony or viewing the car so that it is not hearsay?”
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This question indicates that the jury did not find McClinton’s and Baker’s testimony to be
highly persuasive. For these reasons, the second Al-Naseer factor favors the state’s
arguments.
Third, because both parties discussed A.S.’s statements during the show-up
identification in their closing arguments, th is factor favors Makuac. The context and
substance of the closing arguments, however, limits the overall weight that we give to this
factor. The state summarized the show-up identification during closing argument, but
focused primarily on other inculpatory evidence in the case, including other identification
evidence not challenged on appeal. For his part, Makuac described the show-up
identification as “an issue” and “a hole in the state’s case” in his closing argument. Makuac
emphasized that A.S. himself did not testif y regarding the statements made during the
show-up identification and encouraged the jury to disregard the testimony about the show-
up identifications. In sum, this factor weighs slightly in favor of concluding that the error
was not harmless.
Fourth, Makuac effectively countered the evidence through cr oss-examination of
McClinton and Baker regarding the show-up identification. The district court also granted
Makuac’s request to provide cautionary instru ctions regarding iden tification testimony
during McClinton’s testimony and again during the final instructions. In addition, as noted
above, Makuac’s closing argument provided him an opportunity to criticize the show-up
identification, asking the jury to doubt McClinton’s and Baker’s testimony because it was
not supported by A.S.’s testimony during the tria l. This factor strongly favors the state’s
argument on appeal.
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Fifth and finally, the other evidence of guilt was overwhelming. The identification
testimony in A.S.’s direct examination and th e 911 call, as well as other identification
evidence not contested on appeal, supported the jury’s conclusion that Makuac committed
the charged offenses. Moreover, the photographs from A.S.’s house and the surveillance
video further corroborated A.S.’s testimony and Makuac’s involvement in the offenses. In
his direct examination, A.S. testified that th e firearms used were po inted so close to him
that he observed distinctive features, including a laser sight on one weapon and a scratched-
off serial number on the other. The evidence recovered from C.B.’s bedroom included a
firearm with its serial number scratched off next to a backpa ck containing A.S.’s stolen
property. DNA collected from this weapon was consistent with a DNA profile that
matched the sample provided by Makuac. We conclude that the in culpatory evidence
admitted at trial and unchallenged on appeal is overwhelming and the fifth factor weighs
strongly in favor of the error being harmless.
Balancing all the factors together, we conclude that any constitutional violation that
may have occurred was harmless beyond a reasonable doubt.
II. Restitution Order
Makuac argues that the district court e rred when it ordered restitution for the
following two reasons: (1) the offense did not directly cause the loss claimed by A.S.; and
(2) the district court did not consider his ability to pay the restitution ordered. We conclude
that Makuac forfeited any factual challenge to the restitution order, but remand the matter
to the district court for further consideration of Makuac’s ability to pay.
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A crime victim has the right to receive restitution for “any out-of-pocket losses
resulting from the crime, including medical a nd therapy costs, replacement wages and
services.” Minn. Stat. § 611A.04, subd. 1( a) (2020). In dete rmining the amount of
restitution, a district court shall consider “(1) the amount of economic loss sustained by the
victim as a result of the offense; and (2) th e income, resources, a nd obligations of the
defendant.” Minn. Stat. § 611A.045, subd.1( a) (2020). “[District courts] may order
restitution only for losses that are directly caused by, or follow naturally as a consequence
of, the defendant’s crime.” State v. Boettcher , 931 N.W.2d 376, 381 (Minn. 2019).
Generally, an offender may challenge restitu tion, but must do so by requesting a hearing
within 30 days of sentencing, Minn. Stat. § 611A.045, subd. 3(b), and appellate courts will
not consider restitution arguments raised for the first time on appeal, see State v. Johnson,
851 N.W.2d 60, 64 (Minn. 2014) (declining to consider a re stitution argument raised for
the first time on appeal). This 30-day ti me limit does not apply, however, where the
“challenge is to the legal authority of the court to order restitution.” State v. Gaiovnik, 794
N.W.2d 643, 648 (Minn. 2011).
In this case, A.S. explained at sentencing that he experienced an economic loss when
he dropped out of school and moved out of Mankato because of the offense. On appeal,
Makuac disputes this testimony. However, Makuac did not file a request for a restitution
hearing as required by statute. Minn. Stat. § 611A.045, subd . 3(b). Because a challenge
to the causal connection between the offense and A.S.’s loss raises a factual challenge, not
a legal one, Makuac has forfeited appellate revi ew of this portion of the district court’s
decision.
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Makuac also argues that the district court lacked legal authority to order restitution
where it failed to consider his ability to pay restitution of $5,450 within one year. The state
concedes that the district court did not expressly consider Makuac’s ability to pay and urges
us to remand the matter for further findings pursuant to State v. Miller, 842 N.W.2d 474,
479-80 (Minn. App. 2014) (reversing restitution order and remanding for further findings
because the district court failed to consider the offender’s ability to pay, even though the
offender raised the issue for the first time on direct appeal), rev. denied (Minn. Apr.15,
2014. Assuming (as the state does) that Makuac’s challenge is properly characterized as a
challenge to the district court’s legal auth ority and assuming (as the state does) that
pursuant to Miller, Makuac can properly raise this issue for the first time on direct appeal,
we conclude that further findings are required to justify the district court’s decision.
Affirmed in part, reversed in part, and remanded.