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This opinion is nonprecedential except as provided by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
A22-0793

State of Minnesota,
Respondent,

vs.

Henry Albert Allison, Jr.,
Appellant.

Filed January 9, 2023
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Traverse County District Court
File No. 78-CR-20-130

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

Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his sentences for criminal sexual conduct and possession of
child pornography, arguing that the district court (1) abused its discretion by awarding
restitution for losses incurred by the victim’s mother and sister because those losses did
2
not directly result from the offenses, and (2) erred by sentencing him for both offenses
because they arose out of a single behavioral incident. We affirm in part, reverse in part,
and remand.
FACTS
In October 2020, appellant Henry Allison pleaded guilty to committing three
offenses— second-degree criminal sexual conduct, use of a minor in a sexual performance,
and possession of child pornography —against the six-year -old daughter (child) of his
girlfriend (mother) that July.1 At the plea hearing, Allison testified that on July 10 or 12,
he pulled aside child’s underwear to “expos[e] her” and used his cell phone to take a
photograph of her bare vaginal area. The same day, he took a similar photograph but with
child’s underwear in place and his bare penis nearby.
The district court imposed an executed sentence of 91 months for second-degree
criminal sexual conduct and stayed consecutive sentences for the other two offenses. The
state appealed, arguing that the consecutive stayed sentences constituted departures from
the sentencing guidelines, which the district court failed to support with findings of
substantial and compelling circumstances.2

1 The complaint identifies child as seven years old (which she was when it was filed), and
she was described as seven years old at the plea hearing. But mother testified at the
restitution hearing that she was actually six years old at the time of the offenses, which
Allison does not dispute.

2 Allison sought to pursue a related appeal to challenge the imposition of multiple
sentences, but this court concluded that the challenge was outside the scope of Minn. R.
Crim. P. 28.04, subd. 3.
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While the appeal was pending, the district court addressed restitution. The state
requested reimbursement for mother’s lost wages and therapy expenses for child, mother,
and child’s younger half-sister (sister), who is the child of mother and Allison. Allison
contested the restitution claim. At a restitution hearing, mother testified that she took child
and sister to a therapist at the recommendation of county social workers because it was
unclear whether child was awake when Allison took the photographs and whether sister
was present and awake. She explained that child “does not appear to” be aware of what
happened to her and “has not been open about it.” She acknowledged that the therapist
“has made it clear that there is trauma [for the girls] from losing a father figure” but “has
not uncovered anything [else] specifically.” But mother also noted that child now “does
not want assistance with washing herself” or “anyone else in the room even her younger
sister when she is changing,” whereas before the offenses she “had absolutely no problem”
with those things. Mother observed no such behavioral changes with sister.
Mother also testified about her own losses. She explained that she experienced
emotional distress and felt unable to be away from her children —even to sleep—stating
that she was “afraid someone was going to hurt them if [she] was not there.” Mother
recounted, “So, the fears were —the fears were taking over everything so that I could not
do anything that needs to happen in everyday life.” Because medication “was not doing
enough,” mother was admitted to the hospital “under a mental health hold for a week,”
followed by six weeks of “intensive outpatient” care. This emotional distress also left her
unable to work from October 2020 until the beginning of February 2021. She confirmed
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that the only reason she stopped working and sought mental-health treatment was because
of “what happened to [her] daughter.”
Based on this testimony, the district court awarded $15,510.44 in restitution for
(1) child’s therapy expenses and related travel expenses, (2) sister’s therapy expenses and
related travel expenses, (3) mother’s therapy expenses and related travel expenses, and
(4) mother’s lost income.
This court thereafter reversed Allison’s sentence, agreeing that the stayed
consecutive sentences constituted an improper departure, and remanded for resentencing.
State v. Allison, No. A21-0650 (Minn. App. Jan. 10, 2022) (order op.). On remand, Allison
argued that the district court could sentence him for only one of the offenses because they
were all committed as part of the same behavioral incident. The district court agreed with
respect to the criminal-sexual-conduct and sexual-performance offenses but not the child-
pornography offense and sentenced Allison to consecutive prison terms of 91 months for
second-degree criminal sexual conduct and 15 months for possession of child pornography.
Allison appeals.
DECISION
I. The district court abused its discretion by awarding restitution for sister’s
expenses but did not abuse its discretion by awarding restitution for mother’s
expenses.

A district court has “broad” discretion in awarding restitution. State v. Boettcher,
931 N.W.2d 376, 380 (Minn. 2019). We will not reverse a restitution award absent an
abuse of that discretion. Id.
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A crime victim has a right to receive restitution “if the offender is convicted.” Minn.
Stat. § 611A.04, subd. 1(a) (2020). This right extends to any “natural person who incurs
loss or harm as a result of a crime,” including “family members . . . of a minor.” Minn.
Stat. § 611A.01(b) (2020). Restitution “may include, but is not li mited to, any out-of-
pocket losses resulting from the crime, including medical and therapy costs [and]
replacement of wages and services.” Minn. Stat. § 611A.04, subd. 1(a). Because losses
must result from the crime, a restitution award must be limited to “losses that are directly
caused by, or follow naturally as a consequence of, the defendant’s crime.” Boettcher, 931
N.W.2d at 381. A mere “factual relationship” between the crime and the losses is
insufficient. Id.
Allison does not contest the award of restitution for child’s therapy expenses and
related travel expenses. Nor does he dispute that mother and sister, as child’s family
members, constitute victims entitled to restitution under Minn. Stat. § 611A.01(b). But he
argues that the district court abused its discretion by awarding restitution for mother’s lost
income and expenses related to her own and sister’s therapy because these losses were not
directly caused by his offenses. This argument has several facets; nearly all of them are
unavailing.
First, Allison asserts that mother’s and sister’s expenses are like those in Boettcher
and other cases where restitution awards were reversed because the losses were factually
but not directly related to the offense of conviction. See id. (holding restitution for fire
damage improper when defendant was charged with robbery and arson but convicted only
of robbery); State v. Esler, 553 N.W.2d 61, 65 (Minn. 1996) (holding restitution improper
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as to damage to home defendant used for “target practice” before the shooting murder of
which he was convicted), rev. denied (Minn. Oct. 15, 1996). We agree as to sister’s therapy
expenses because the evidence does not demonstrate that she has any awareness of
Allison’s offenses, only that she has felt the effects of being separated from her father
because of his incarceration. But this is not so with respect to mother’s own losses.
Mother’s testimony demonstrates that Allison’s offenses caused her emotional
distress, preventing her from working and necessitating extensive mental-health care. Her
therapy costs and lost wages are precisely the types of losses contemplated by the
restitution statute. Minn. Stat. § 611A.04, subd. 1(a). And they “ follow naturally as a
consequence of [Allison’s] crime,” Boettcher, 931 N.W.2d at 381, much like the loss of
wages incurred by a murder victim’s daughter when she attended trial “to achieve closure
in coping with her father’s death,” State v. Palubicki, 727 N.W.2d 662, 667 (Minn. 2007).
Second, Allison contends his offenses “were committed against a single victim” and
“only directly caused the harms to the minor victim he assaulted.” We disagree. T he
implication that nobody other than the immediate victim of an offense can suffer direct
losses would constitute an end -run around the statutory definition of “victim,” which
expressly includes several categories of people who are not immediate victims—not just a
family member of a minor but also a “guardian, conservator, or custodian of a minor,
incompetent, incapacitated, or deceased person.” Minn. Stat. § 611A.01(b).
Third, Allison asserts that the only types of family losses that meet the direct-cause
standard are those incurred by a family member in assisting the minor victim of the offense,
such as by personally tending to the child in the hospital, as in In re Welfare of M.R.H.,
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716 N.W.2d 349, 353 (Minn. App. 2006), rev. denied (Minn. Aug. 15, 2006), or by
personally assisting the child in exercising her rights as a victim, as in In re Welfare of
J.A.D., 603 N.W.2d 844, 847 (Minn. App. 1999). He also argues “the supreme court has
made clear that a family member is not entitled to restitution that stems from her own
emotional trauma following the defendant’s crime,” citing to State v. Jones, 678 N.W.2d
1, 24 (Minn. 2004). His reliance on M.R.H., J.A.D., and Jones is misplaced.
With respect to the first two cases, they merely upheld restitution awards for the
indicated types of losses; nothing in their language or logic precludes awards for other
types of losses. With respect to Jones, it held only that a murder victim’s sister could not
recover lost wages due to emotional trauma because she did not fall within the statutory
definition of “victim”; it did not address what types of losses are recoverable as restitution
by one who does. See Palubicki, 727 N.W.2d at 667 (explaining that Jones “limits the
number of people eligible for compensation under the statute” but “does not in any way
limit the types of restitution recoverable under the statute”). And none of the three cases
dealt with the current definition of “victim,” which the legislature adopted as an expansion
of that term in 2005. 2005 Minn. Laws ch. 136, art. 8, § 22; see Palubicki, 727 N.W.2d at
665 n.4 (recognizing that the amendment “broadened the definition”).
In sum, because mother undisputedly is a family-member victim and her testimony
amply establishes that Allison’s offenses caused her to suffer losses in the form of therapy
expenses and lost wages, the district court did not abuse its discretion by awarding
restitution for those losses. But because the record contains no evidence of a similarly
direct connection between Allison’s offenses and sister’s therapy expenses, the district
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court abused its discretion by awarding restitution for those losses. We reverse that aspect
of restitution and remand for the district court to correct the restitution award.
II. The district court erred by sentencing Allison for both offenses.
Generally, “if a person’s conduct constitutes more than one offense under the laws
of this state, the person may be punished for only one of the offenses and a conviction or
acquittal of any one of them is a bar to prosecution for any other of them.” Minn. Stat.
§ 609.035, subd. 1 (2020). The term “conduct” refers to “acts committed during a single
behavioral incident.” State v. Branch, 942 N.W.2d 711, 713 (Minn. 2020). Unless the
state proves that the defendant’s offenses were not part of a single behavioral incident, the
district court must assume that they were. State v. Johnson, 653 N.W.2d 646, 652 (Minn.
App. 2002). Whether a defendant’s offenses were part of a single behavioral incident
presents a mixed question of law and fact; where, as here, the relevant facts are undisputed,
we review de novo the district court’s application of the law to those facts. State v.
Degroot, 946 N.W.2d 354, 365 (Minn. 2020).
In analyzing whether multiple offenses arise from a single behavioral incident, we
consider “whether the conduct (1) shares a unity of time and place and (2) was motivated
by an effort to obtain a single criminal objective.” State v. McCauley, 820 N.W.2d 577,
591 (Minn. App. 2012) (quotation omitted), rev. denied (Minn. Oct. 24, 2012). With
respect to unity of time and place, we are guided by the principle that, “[a]lthough a crime
of possession is a continuing offense, it is complete when the offender takes possession of
the prohibited item.” State v. Bakken , 883 N.W.2d 264, 270 (Minn. 2016) (citation
omitted). And with respect to criminal objective, we consider “whether all of the acts
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performed were necessary to or incidental to the commission of a single crime and
motivated by an intent to commit that crime.” Id. at 271 (quotation omitted).
These principles from Bakken support reversal here. On one day and in a single
place, Allison moved child’s underwear and took a photo of her bare genitals; that conduct
constituted second-degree criminal sexual conduct and possession of child pornography.
Further, although Allison did not expressly testify that he moved child’s underwear (the
criminal sexual conduct) for the purpose of taking and possessing the photo of her bare
genitals, it was necessary to accomplishing those other acts. As such, the district court
erred by sentencing Allison for both. We reverse the child-pornography sentence and
remand for the district court to vacate that sentence.
Affirmed in part, reversed in part, and remanded.