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This opinion is nonprecedential except as provided by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
A22-1597

State of Minnesota,
Respondent,

vs.

Brandon Michael Kertscher,
Appellant.

Filed July 17, 2023
Affirmed
Jesson, Judge

Becker County District Court
File No. 03-CR-20-1270

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

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
After pleading guilty to second-degree manslaughter when his punch to G.S.
(the victim) resulted in the victim’s death from a traumatic brain injury,
appellant Brandon Michael Kertscher appeals from the district court’s restitution order of
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over half a million dollars. He argues that the district court abused its discretion in ordering
$556,121.39 to be paid to the victim’s health- benefits company because the state did not
establish that the company’s economic losses were a direct result of his conduct and
because the district court did not expressly consider his ability to pay restitution. Further,
he contends that the restitution order was punitive, not rehabilitative, and should be
vacated. Because the victim’s medical bills were a direct result of Kertscher’s conduct, the
district court expressly addressed his ability to pay, and the amount is not punitive, we
affirm.
FACTS
In July 2020, respondent State of Minnesota charged Kertscher with
first-degree assault, second-degree assault with a dangerous weapon, and first-degree
aggravated robbery.1 These charges were based on the allegation that in June 2020,
Kertscher punched the victim in the face with a metal object around his knuckles, which
left the victim unconscious and later diagnosed with a severe brain bleed. After
approximately two months in the hospital, the victim died. The state then amended its
complaint and charged Kertscher with first-degree manslaughter.2
In July 2021, Kertscher pleaded guilty to an amended count of
second-degree manslaughter and agreed to leave sentencing to the discretion of the district
court. For the factual basis of his plea, Kertscher testified that, on the date of the incident,

1 Kertscher was charged with these crimes in violation of Minnesota Statutes sections
609.221, subdivision 1; 609.222, subdivision 2; and 609.245, subdivision 1 (2018).
2 Kertscher was charged with this crime i n violation of Minnesota Statutes section
609.20(2) (2018).
3
he was in a friend’s basement when he and the victim got into an argument. He stated that
the victim “came at” him, so he hit the victim “[i]n the jaw” and the victim was “knocked
out and fell over.” He also testified that he left the house directly after he punched the
victim. He said that he saw in the police reports that other individuals brought the victim
from the basement to the front yard of the house in order for the victim to be transferred to
the hospital. Kertscher acknowledged that the victim was diagnosed with a traumatic brain
injury and later died. The district court accepted Kertscher’s plea, convicted him of
second-degree manslaughter, and sentenced him to 48 months’ imprisonment. The district
court left restitution open.
Three victims 3 sought restitution: the Crime Victims Reparations Board, the
victim’s mother, and First-Class Recoveries, Inc. on behalf of Preferred One. The Crime
Victims Reparations Board requested $7,246.49 to cover the victim’s funeral costs. The
victim’s mother requested $2,729.38 for cash Kertscher allegedly stole from the victim
during the incident, as well as expenses for fuel, lodging, food, and lost wages, which were
incurred from visiting her son in the hospital. And Preferred One requested $557,506.39
for the victim’s medical benefits that paid the medical bills for his end-of-life care.
Kertscher filed a motion and affidavit challenging the restitution.
A contested-restitution hearing was held, and all three parties seeking restitution testified.

3 “Victim” is defined by Minnesota Statutes section 611A.01(b) (2018) as a natural person,
corporation, government entity, or other entity who has incurred loss or harm as a result of
a crime. See Minn. Stat. § 611A.04, subd. 1(a) (2018) (stating that a “victim of a crime has
the right to receive restitution as part of the disposition of a criminal charge . . . against the
offender if the offender is convicted”).
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Kertscher neither objected to nor challenge d the Crime Victims Reparations Board’s
request for restitution. The victim’s mother testified that some of her requested losses were
made on behalf of other individuals who were part of the victim’s family. And Preferred
One had an attorney and owner of First-Class Recoveries, Inc. testify to the medical
benefits the victim received through his employer’s health plan. The owner of First-Class
Recoveries testified that Preferred One made payments for the victim’s medical care at the
end of his life and then retained First-Class Recoveries to pursue recovery on behalf of the
health plan. Further, the owner stated that Preferred One only covers expenses that are
deemed medically necessary. Finally, the owner testified that the amount requested in
restitution was typical for end-of- life care because such care “after trauma is often very
expensive.”
Kertscher also testified about his ability to pay restitution. He stated that in prison
he gets paid about $0.25 an hour to attend treatment, clean, or serve food, which is about
$9.00 every two weeks. Before prison, Kertscher testified that he cut lawns for about
$100 a week and worked at K- Concrete, his brother-in-law’s company, where he made
$15 an hour. He also stated that he intends to seek full-time employment once he is
released from prison— around March 2023 when he is about 32 years old— specifically
either in construction or back at his brother-in-law’s company. After the hearing, the state
conceded that five claims listed in Preferred One’s exhibits (totaling $1,042.46) should be
withdrawn for lacking a corresponding bill and decreased its request to $556,121.39.
5
In September 2022, the district court ordered that Kertscher pay restitution to all
three victims in the following amounts:
• $7,246.49 to the Crime Victims Reparations Board;
• $410.32 to the victim’s mother; and
• $556,121.39 to Preferred One.
Kertscher appeals only the restitution ordered to Preferred One.
DECISION
Kertscher argues that the district court abused its discretion in ordering restitution
in the amount of $556,121.39 to be paid to Preferred One, the victim’s health-benefits
provider, for three reasons: (1) Preferred One’s economic loss was not directly caused by
Kertscher’s conduct, (2) the district court failed to expressly consider his ability to pay the
restitution amount, and (3) the district court’s restitution order is more retributive than
rehabilitative.
We “generally review a restitution order for an abuse of the district court’s broad
discretion.” State v. Wigham, 967 N.W.2d 657, 662 (Minn. 2021) (quotation omitted).
That broad discretion, however, “is constrained by the statutory requirements” set forth in
Minnesota Statutes section 611A.045 (2020). Id. This statute requires courts to consider
two factors when deciding whether to order restitution and setting the amount of
restitution: “(1) the amount of economic loss sustained by the victim as a result of the
offense; and (2) the income, resources, and obliga tions of the defendant.”
Minn. Stat. § 611A.045, subd. 1(a). Before the district court makes its determination, the
defendant may challenge the restitution requested by the state. Id., subd. 3(b). In a
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contested-restitution scenario, the proper restitution amount must be supported by a
preponderance of the evidence. Id. , subd. 3(a). And the state has the burden of
demonstrating the amount of loss sustained by a victim as a result of the offense and its
appropriateness. Id.
With the law governing restitution in mind, we address in turn each of Kertscher’s
three arguments pertaining to the restitution amount to Preferred One.
Preferred One’s economic loss was directly caused by Kertscher’s conduct and
the restitution award was reasonable.

Kertscher contends that the district court abused its discretion in its restitution order
for Preferred One because the state’s evidence did not provide the requisite specificity,
rendering the award unreasonable. He asserts that restitution should only compensate loss
that was directly related to his own conduct, and all the injuries the victim sustained could
not be attributable to the conduct Kertscher admitted to at his plea hearing.
To evaluate this claim, we turn to Minnesota Statutes section 611A.04,
subdivision 1(a), which specifies that “[a] request for restitution may include . . . any
out-of-pocket losses resulting from the crime, including medical . . . costs.”
(Emphasis added.) And Minnesota Statutes section 611A.045, subdivision 1(a)(1), states
that in determining restitution, the district court should consider the “amount of economic
loss sustained by the victim as a result of the offense .” (Emphasis added.) In State v.
Riggs, the Minnesota Supreme Court interpreted the phrase “as a result of the offense” to
“require[] the district court to consider the economic loss sustained by the victim as a
consequence of the defendant’s violation of the law.” 865 N.W.2d 679, 68 5-86
7
(Minn. 2015). Later, in State v. Boettcher, the supreme court clarified that the “general
rule . . . is that a district court may order restitution only for losses that are directly caused
by, or follow naturally as a consequence of, the defendant’s crime.” 931 N.W.2d 376, 381
(Minn. 2019).
Here, the record supports the district court’s determinations that the $556,121.39 in
medical bills were reasonable and were incurred as a result of Kertscher’s offense.
Accordingly, the district court acted within its discretion when it ordered all t he medical
bills for the victim’s end-of-life care as restitution to be paid by Kertscher.
First, the record supports that Preferred One’s restitution amount followed naturally
as a consequence of Kertscher’s crime. Kertscher pleaded guilty to the conduct that led to
the victim being in the hospital. At his plea hearing, he admitted that he knocked out the
victim with one punch and left the scene. And the victim was later diagnosed with a
traumatic brain injury that ultimately led to his death two months later. The victim’s
medical expenses naturally follow from the punch that left the victim unconscious from
the moment it happened until the moment he died. Accordingly, the factual basis for
Kertscher’s plea supports the district court’s determination that the punch was the direct
cause of the victim’s medical needs.
The record also supports the reasonableness of the ordered restitution amount. For
example, the restitution affidavit from Preferred One described its elements of loss,
itemized the total dollar amounts of restitution claimed, and specified the medical
procedures that justified the medical expenses, which was in conformance with the
restitution statute. See Minn. Stat. § 611A.04, subd. 1(a) (stating that medical expenses
8
can be recovered in restitution as long as the information submitted describes the loss,
itemizes the total dollar amount, and specifies the reasons that justify these amounts). And
when Kertscher contested five claims without accompanying bills, the state subtracted
those claims from Preferred One’s restitution request. Moreover, the owner of
First-Class Recoveries, Inc. testified that the affidavit submitted by Preferred One included
all the expenses that were reasonable and medically necessary because the health- benefit
plan only approves payments for such expenses. And he explained that such end-of-life
care after trauma is “very expensive,” and thus this amount is “typical” for this sort of care.
His testimony supports that the amount is reasonable, and the district court found his
testimony credible. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (explaining
that the credibility of witnesses and the weight to be given to their testimony are
determinations to be made by the factfinder).
4
To conclude, because the ordered restitution was reasonable and followed naturally
from Kertscher’s conduct, the district court did not abuse its discretion.
The district court expressly considered Kertscher’s ability to pay restitution.

Kertscher next asserts that the district court abused its discretion because it did not
expressly state that it considered Kertscher’s ability to pay, which is the second restitution
factor. Minn. Stat. § 611A.045, subd. 1(a)(2). Although we generally review a restitution

4 Still, Kertscher alludes to an argument given at sentencing that some statements provided
at the time of the incident indicated that the victim may have been dropped on his head
during transport from the basement to the outside, which could have been an intervening
cause or made the victim’s condition worse. This argument fails. Kertscher pleaded guilty
and waived his right to a trial to determine this issue.
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order for an abuse of discretion, in the wake of State v. Wigham, whether the district court
fulfilled its statutory obligation to consider the defendant’s ability to pay restitution is a
question of law that this court reviews de novo. 967 N.W.2d at 662.
Minnesota Statutes section 611A.045, subdivision (1)(a)(2), requires a district court
to consider a defendant’s income, resources, and obligations when it “affirmatively take[s]
into account the defendant’s ability to pay when awarding and setting the amount of
restitution.” Wigham, 967 N.W.2d at 663. The district court fulfills its statutory duty
regarding this second restitution factor “when it expressly states, either orally or in writing,
that it considered the defendant’s ability to pay” and “the record include[s] sufficient
evidence about the defendant’s income, resources, and obligations” to consider ability to
pay. Id. at 664-65. But the district court need not make express findings about the
defendant’s income, resources, and obligations to support its express statement that it
considered the defendant’s ability to pay. Id. at 659. Rather, the record must include
sufficient information on those topics to support the district court’s express statement
regarding the defendant’s ability to pay. Id.
Here, the district court did not err because it expressly stated in writing that it
considered Kertscher’s ability to pay. The district court’s restitution order provides an
express statement in writing about Kertscher’s ability to pay because it acknowledges his
lack of financial means to have the ability to pay now while also noting his earning potential
and opportunities for inheritance and other financial windfalls after his release from prison.
Specifically, the district court satisfied Wigham’s requirement when it wrote “[t]herefore,
[Kertscher] has the ability to pay restitution in this matter,” combined with the income
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information it provided. See id. at 664-65 (requiring the district court to expressly state
that it considered the defendant’s ability to pay). And the district court’s restitution order
includes evidence of Kertscher’s income, resources, and obligations within three
paragraphs that outline his income in prison, his income before prison, and his potential
income once he is released from prison. Thus, even though the district court is not required
to make specific findings about Kertscher’s income, it did so here. The express sentence
and the context surrounding Kertscher’s income in the past, present, and future, clearly
shows an express consideration of Kertscher’s ability to pay.
The district court’s restitution order was not punitive.
Finally, Kertscher argues that the amount of $556,121.39 to be paid to
Preferred One is such a large amount of restitution, it is functionally punitive because “it
is unlikely [he] would be able to repay the restitution . . . even throughout his entire
lifetime.”
The principal purpose of restitution is to ensure crime victims are restored to the
same financial position they were in before the crime. State v. Palubicki,
727 N.W.2d 662, 666 (Minn. 2007). Restitution, however, should not be used as a form of
punitive damages. See State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) (explaining that
“the word ‘restitution’ connotes restoring or compensating the victim for his loss”).
Here, the district court acted within its discretion in ordering $556,121.39 in
restitution because, although it is a large amount, it is not punitive in nature. This amount
is the exact amount of medical bills that the victim incurred —minus five unsupported
health-insurance claims that were removed from the total after the restitution hearing. It
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was not inflated by the district court. The district court neither included interest nor
adjusted for inflation.
Finally, the nonpunitive nature of this award is supported by caselaw. State v. Maidi
explained that a restitution order, although large, can still fit within the confines of
rehabilitation over punishment. 537 N.W.2d 280, 283, 285 (Minn. 1995) (affirming a
district court’s November 1993 restitution order of $147,251.27 because the court
considered defendant’s ability to pay, and it was an appropriate amount to compensate the
victims). And although State v. Hanninen, 5 mentions the “futility of ordering
overwhelming restitution,” Maidi reinforces that even if the amount is overwhelming the
monthly paym ents scheduled by the sentencing court—or in this case reserved for
determination by Kertscher’s supervised release agent —may not be. Hanninen, 533
N.W.2d at 662; See Maidi, 537 N.W.2d at 285–86 (holding that because “the sentencing
court properly considered [the defendant’s] ability to pay” by setting a payment schedule
that he could afford based on his earnings, it did not abuse its discretion by ordering
restitution in an amount the defendant could “mathematically . . . never pay off”).
6
Moreover, we observe that Kertscher’s age and anticipated release date—he is about 32
years old as of March 2023—support the nonpunitive nature of this award. At his relatively

5 And Hanninen can be distinguished from this case because, in Hanninen, the amount of
restitution was unspecified and there was civil liability pending that factored into whether
the restitution amount was appropriate. 533 N.W.2d 660, 662 (Minn. App. 1995),
rev. denied (Minn. Sept. 28, 1995). In contrast, all Preferred One’s restitution request is
specified in an itemized list of medical costs and no civil liability is pending.
6 We note that the record lacked any documentation regarding a restitution-payment plan
from Kertscher’s supervised release agent.
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young age, Kertscher has many years to earn a living and make payments towards this
restitution amount.
In sum, the district court acted within its broad discretion in awarding restitution
because its determinations that Preferred One’s economic loss was directly caused by
Kertscher’s conduct and Kertscher had the ability to pay were not against the facts and
logic in the record. State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019). Moreover, the
district court did not err because it expressly stated that it considered Kertscher’s ability to
pay, even making findings about his past , present, and future income. And the amount,
although large, is not punitive, given Minnesota caselaw applied to the facts of this case,
and the district court did not abuse its discretion in ordering it.
Affirmed.