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This opinion is nonprecedential except as provided by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
A24-0297

State of Minnesota,
Respondent,

vs.

Devon James Block,
Appellant.

Filed September 3, 2024
Affirmed
Smith, Tracy M., Judge

Crow Wing County District Court
File No. 18-CR-22-3293

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Smith, Tracy M., Judge; and
Harris, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal from the district court’s sentence for felony theft, appellant argues
that the district court erred by awarding restitution for one item of missing property and
requiring appellant to bear the burden of proving his inability to pay restitution. We affirm.
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FACTS
The following facts were established at Block’s plea and restitution hearing s.
Sometime between August 30 and September 1, 2022, Block broke into and stole items
from a storage unit in Brainerd, Minnesota. Another person, who is not identified in the
record, accompanied Block during the theft. The renter of the storage unit had kept a variety
of items in the unit, including a cooler, ice augers, and tires. The renter’s spouse had also
stored a ring in the storage unit.
On September 5, 2022, the renter of the storage unit discovered that it had been
broken into and filed a police report, along with a list of missing items. The ring was not
listed in this initial report. Three days later, the renter and the renter’s spouse took inventory
of their storage unit and determined that the ring was gone. In an email to the police, t hey
reported the ring as a missing item. In October 2022, the renter submitted an affidavit for
restitution listing the stolen items, including the ring, with a total requested amount of
$5,150. The renter’s insurer adjusted the estimate of the total loss to be $5,771.32 and
covered about half of the loss.
In August 2023, Block pleaded guilty to felony theft in violation of Minnesota
Statutes section 609.52, subdivision 2(a)(1) (2022). At the plea hearing, Block admitted to
stealing several items, but not the ring, and the district court ordered Block to pay $5,771.32
in restitution, subject to Block’s right to challenge the amount. Block requested a restitution
hearing and challenged both the amount of restitution claimed and his ability to pay the
restitution award.
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Following an evidentiary hearing in which the renters and Block testified, the court
found that the restitution amount was correct and that Block had an ability to pay. The
district court ordered Block to pay the full amount of restitution as estimated by the insurer.
Block appeals.
DECISION
Block argues that the district court abused its discretion by (1) erroneously awarding
restitution for the loss of the ring and (2) requiring Block to meet a burden to prove his
inability to pay. The “district court has broad discretion to award restitution, and the district
court’s order will not be reversed absent an abuse of that discretion.” State v. Andersen ,
871 N.W.2d 910, 913 (Minn. 2015). A district court abuses its discretion when its decision
regarding restitution is based on an erroneous interpretation or application of the law. State
v. Boettcher, 931 N.W.2d 376, 380 (Minn. 2019).
By statute, “[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.” Minn.
Stat. § 611A.04, subd. 1(a) (2022). When awarding restitution, a district court must
consider both “the amount of economic loss sustained by the victim as a result of the
offense” and “the income, resources, and obligations of the defendant.” Minn. Stat.
§ 611A.045, subd. 1(a) (2022).
Restitution for the Ring
Block argues that the district court abused its discretion in awarding restitution for
the ring because (1) it awarded restitution without finding that Block stole the ring and
such a finding would be without a factual basis, (2) it erred by holding him responsible
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under a joint-and-several-liability theory because the person who accompanied him during
the theft was never charged and there is no factual basis that she stole the ring, and (3) there
is no other factual basis for determining that the loss of the ring was directly caused by or
followed naturally as a consequence of his burglary. We are unpersuaded.
The district court determined as follows:
[Block] argues that he should not be responsible for
restitution related to the ring. [Block] maintains that he did not
steal a ring, nor did he ever see a ring in with the items that
were stolen. However, [Block] acknowledged that he had an
accomplice during the burglary, and that he is uncertain as to
whether the accomplice took the ring. [Block] also argues the
[victims’] contradictory testimony raises an issue of credibility
on whether the ring was in the storage unit or not.

. . . .

The Court has considered the testimony provided by
[the victims] and, although there were some contradictions in
who realized the ring was missing and when, the Court finds
the overall testimony credible. Regardless of which person
noticed the ring missing first, the ring is missing. Further,
[Block’s] role in the burglary, whether he stole the ring or the
accomplice did, or even if the ring was somehow lost in the
burglary process, makes him liable for the economic loss
sustained by the victims. The record supports that [Block] stole
items from the [victims’] storage unit. What items were
removed from the unit by [Block ] and what items were
removed by the accomplice are indistinguishable for this
purpose. . . . As such, [Block] is jointly and severally liable for
any restitution amount that is ordered.

Block argues that the restitution award for the ring lacks a factual basis because the
record does not establish that either he or his companion took the ring or that the ring was
taken during the theft at all. He emphasizes that he testified that he did not take the ring,
that he never testified that his companion took the ring, and that the victims provided
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evidence only that the ring was placed in the storage unit months before the theft and was
not in the unit a week after the theft.
To qualify for restitution, a loss must be “directly caused by, or follow naturally as
a consequence of, the defendant’s crime.” Boettcher, 931 N.W.2d at 381. When the
offender challenges a restitution award, the state has the burden of proving the amount of
the victim’s loss. Minn. Stat. § 611A.045, subd. 3(a) (2022). “The record must provide the
court with a factual basis to award restitution.” State v. Johnson, 851 N.W.2d 60, 65 (Minn.
2014).
Here, the district court found credible the victims’ testimony that the ring was in the
storage unit and that they discovered it missing a week after the theft. Block admitted that
he went to the storage facility with a companion, that he broke into and stole from the
victims’ storage unit, and that his companion entered the storage facility during the theft.
The district court implicitly found not credible Block’s testimony that neither he nor his
companion stole the ring or caused its disappearance during the theft. The record supports
the finding that the ring disappeared due to the theft.
Block argues, however, that the district court erred by determining him to be “jointly
and severally liable” for the loss of the ring. “[W]hen a victim sustains indivisible loss from
multiple defendants’ actions, the sentencing court has the authority to order restitution
based on joint and several liability.” Id. at 66. Block argues that joint and several liability
does not apply because his companion was never charged as an accomplice or found liable
for restitution. It is true that the record does not establish that Block’s companion was
charged with the theft or found liable for restitution. But, as described above, the record
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supports the finding that the loss of the ring was directly caused by or was the natural
consequence of Block’s theft whether Block or his companion stole the ring or otherwise
caused its disappearance during the theft. Therefore, the district court did not err by finding
Block liable for restitution for the ring even if joint and several liability does not apply.
Ability to Pay
Block also argues that the district court abused its discretion by requiring him to
meet a burden to prove his inability to pay.
Minnesota Statutes section 611A.045, subdivision 1(a)(2), states that “[t]he court,
in determining whether to order restitution and the amount of the restitution, shall consider
. . . the income, resources, and obligations of the defendant.” (Emphasis added.) In State v.
Wigham, the supreme court concluded that the statutory requirement to “consider” was met
when the district court “affirmatively take[s] into account the defendant’s ability to pay
when awarding and setting the amount of restitution.” 967 N.W.2d 657, 663 (Minn. 2021).
Block does not argue that the district court did not consider his ability to pay; rather, he
contends that the district court improperly analyzed his ability to pay because it erroneously
placed upon him the burden to prove that he was unable to pay restitution.
Block points to the district court’s discussion of the supreme court’s decision in
State v. Cloutier, 987 N.W.2d 214 (Minn. 2023). In its order, the district court wrote that,
in Cloutier, “[t]he defendant challenged the restitution, alleging that the State had failed to
prove that he had the ability to pay,” and that the supreme court affirmed the restitution
award, “holding that the defendant had the burden to prove that he did not have the ability
pay restitution.” Block asserts that Cloutier did not hold that the defendant had the burden
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to prove their inability to pay but rather concluded that no burden was to be imposed on
either party. Block contends that the district court’s characterization of Cloutier was
erroneous and that the restitution order must therefore be remanded for reconsideration of
his ability to pay.
Block is correct that the supreme court in Cloutier did not impose on the defendant
a burden to prove inability to pay. In Cloutier, the supreme court rejected the argument that
the state had the burden to prove the defendant’s inability to pay, but it concluded that the
restitution statute assigned no burden of proof. 987 N.W.2d at 222. Rather, the supreme
court concluded, consistent with Wigham, that “the district court can fulfill its statutory
mandate to consider a defendant’s income, resources, and obligations in a process that
assigns no party a burden of proof.” Id.
“Any error that does not affect substantial rights must be disregarded.” Minn. R.
Crim. P. 31.01. The district court stated in its decision:
The Court has considered [Block’s] ability to pay the
requested restitution amount. [Block] has provided the Court
with limited information relating to his income, resources, and
obligations. It has been established that [Block] has limited
assets, and limited income resources at this time; however,
there are likely to be changes in [Block’s] circumstances over
the course of his probationary period, both as to income and
expenses.

[Block] also indicated a plan to return to work and
provided no reason he would not be able to work going
forward. As such, though [Block] has a limited ability to pay
at this time, the record indicates he is able to pay some amount
toward restitution.

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Even though the district court misstated the rule from Cloutier, we conclude, for
two reasons, that the error did not affect Block’s substantial rights. First, this analysis of
Block’s ability to pay does not mention whether Block had met a burden to prove his
inability to pay. In fact, based on the information that Block provided, the district court
recognized that Block had limited resources at the time, but it also recognized that Block
planned to return to work. Second, the district court explicitly considered Block’s ability
to pay and therefore satisfied the requirements of Minnesota Statutes section 611A.045,
subdivision 1(a)(2), and Wigham. Reversal is therefore not warranted based on the district
court’s incorrect statement of Cloutier’s holding regarding the burden of proof.
Affirmed.