This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0190
State of Minnesota, Respondent,
vs.
Philip Lee Carlson, Appellant.
Filed March 14, 2016 Affirmed Schellhas, Judge
Hennepin County District Court File No. 27-CR-11-29604
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and Reyes,
Judge. UNPUBLISHED OPINION
SCHELLHAS, Judge
On appeal from his conviction of felony theft by swindle, appellant argues that the
district court committed plain error that affected his substantial rights when instructing the
jury on accomplice liability. Appellant also makes numerous pro se arguments. We affirm.
FACTS
Appellant Philip Lee Carlson and his wife Virginia Marie Carlson owned
Sugarwoods Office Center LLC, which owned 49% of Amber Woods Office Center LLC.1
In September 2006, Amber Woods and First Commercial Bank closed on a construction
loan to build an office condominium (Amber Woods project). The loan agreement provided
that loan funds would be disbursed over time in response to requests to pay for completed
work on the Amber Woods project (draw requests) and supporting documents regarding
completed work, including invoices and lien waivers from subcontractors.
Interspace, an entity owned by Philip Carlson and Virginia Carlson, was the general
contractor for the Amber Woods project. In or around October 2007, the bank received
draw request one from Interspace. Draw request one was unsigned; Amber Woods and
Interspace were listed below the blank signature lines. Draw request one was accompanied
by supporting documents including an invoice purportedly from Sundblad Construction
(Sundblad) and a lien waiver signed by Virginia Carlson for Interspace and purportedly
1 The remaining 51% of Amber Woods was owned by Hilloway East LLC, which was owned by Robert Roos, Michael Leuer, and James Fenning.
2 signed by John Sundblad for Sundblad. In reliance on draw request one and its supporting
documents, the bank released $173,988.73 in loan funds; the funds were disbursed by a
check payable to “Sunblad [sic] & Interspace.” John Sundblad purportedly endorsed the
check, and the funds were deposited into an Interspace account. Interspace subsequently
issued a check, signed by Virginia Carlson, to “Sunblad [sic]” in the amount of $55,860.91.
In or around November 2007, the bank received draw request two from Interspace.
Draw request two was signed by Philip Carlson for Interspace and Amber Woods. Draw
request two was accompanied by supporting documents including an invoice purportedly
from Sundblad and a lien waiver signed by Virginia Carlson for Interspace and purportedly
signed by John Sundblad for Sundblad. The supporting documents also included an invoice
purportedly from Alpine Landscape Inc. and a lien waiver signed by Virginia Carlson for
Interspace and unsigned by any Alpine agent. In reliance on draw request two and its
supporting documents, the bank made two distinct releases of loan funds: a $224,689.64
check whose payees were “Interspace & Sunbald [sic],” and a $38,126.25 check whose
payees were “Interspace & Alpine.” The larger check was endorsed by John Sundblad; the
smaller check was endorsed “Interspace Logan Ryan, for Alpine.” Both checks were
deposited into an Interspace account. Interspace subsequently issued a check, signed by
Virginia Carlson, to Sundblad in the amount of $121,686.57. Alpine received no portion
of the released funds.
In or around January 2008, the bank received draw request three from Interspace.
Draw request three was signed by Philip Carlson for Interspace and Amber Woods. Draw
request three was accompanied by supporting documents including an invoice from Logan
3 Ryan Corporation, which was owned by Philip Carlson and Virginia Carlson, and a lien
waiver signed by Virginia Carlson for Interspace and illegibly signed on behalf of Logan
Ryan.2 In or around February 2008, in reliance on draw request three and its supporting
documents, the bank released $31,985 in loan funds; the funds were disbursed by a check
whose payee was Logan Ryan. The check was endorsed “Logan Ryan Corporation,” and
the funds were deposited into a Logan Ryan account.
In or around May 2008, the bank received draw request four from Interspace. Draw
request four was signed by Philip Carlson for Amber Woods and was signed by Virginia
Carlson for Interspace and Amber Woods. Draw request four was accompanied by
supporting documents including an invoice from Logan Ryan and a lien waiver illegibly
signed on behalf of Logan Ryan.3 In reliance on draw request four and its supporting
documents, the bank released $164,522 in loan funds; the funds were disbursed by a check
whose payee was Logan Ryan. The check was endorsed “partial” and “Logan Ryan Corp.,”
and the funds were deposited into a Logan Ryan account.
In or around July 2008, the bank received draw request five from Interspace. Draw
request five was unsigned; Interspace, Amber Woods, Roos, Leuer, and Fenning were
listed below the blank signature lines. Draw request five was accompanied by supporting
documents including an invoice from Logan Ryan and a financial statement purportedly
2 The lien waiver may have been signed “Rory Synstelien” on behalf of Logan Ryan. Synstelien, who is Virginia Carlson’s son and Philip Carlson’s stepson, testified that he had no association with Logan Ryan and did not sign the lien waiver. 3 The lien waiver may have been signed “Rory Synstelien” on behalf of Logan Ryan. Synstelien testified that he did not sign the lien waiver.
4 from Palo Companies Inc. The bank released no loan funds in reliance on draw request five
and its supporting documents because subcontractors had begun to file liens against the
Amber Woods project. Work stopped on the Amber Woods project in late 2008 or early
2009.
In or around October 2010, Roos and an agent of the bank went to police and
reported suspected fraud by Philip Carlson and Virginia Carlson. Police investigated and
determined that Philip Carlson and Virginia Carlson had committed “some fraud . . . or
some theft by swindle” in connection with the five draw requests. In September 2011,
respondent State of Minnesota charged Philip Carlson with four counts of felony theft by
swindle and one count of attempted felony theft by swindle, under Minn. Stat. § 609.52,
subds. 2(4), 3(1) (2006); each count was charged with reference to Minn. Stat. § 609.05
(2006), the accomplice-liability statute.4 Virginia Carlson was identically charged, and the
district court granted the state’s motion to join the cases against Philip Carlson and Virginia
Carlson.
The district court conducted a consolidated jury trial in August 2014. The state
presented evidence that the five draw requests and their supporting documents were
fraudulent in that the Sundblad, Alpine, and Palo invoices/statements did not originate from
those companies; the Sundblad and Palo invoices/statements overreported the work
completed by and the amounts owed to those companies; the Logan Ryan invoices reflected
4 Count one was based on draw request one; counts two and three were based on draw request two; count four was based on draw requests three and four; and count five was based on draw request five.
5 work that was not completed by that company and sought amounts that consequently were
not owed to that company; and the lien waivers reflected payments that, in whole or in part,
were not actually made to the companies whose waivers were sought. The state also
presented evidence that each of the first four draw requests resulted in the bank’s release
of loan funds that ultimately came into the possession of Philip Carlson and Virginia
Carlson. The jury found Philip Carlson and Virginia Carlson guilty as charged, and Philip
Carlson and Virginia Carlson each were convicted of a single count (count one) of felony
theft by swindle and sentenced to 21 months’ imprisonment, with execution stayed for 5
years and 365 days’ local confinement.
Philip Carlson appeals.5
DECISION
Accomplice-liability instruction
“[A] failure to object to jury instructions precludes review unless the appellant can
show that there was a plain error affecting substantial rights.” Gulbertson v. State, 843
N.W.2d 240, 247 (Minn. 2014). Such an error is grounds for reversal “only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Taylor,
869 N.W.2d 1, 15 (Minn. 2015) (quotations omitted). “An error is plain if it is clear or
obvious; this means an error that violates or contradicts case law, a rule, or an applicable
standard of conduct.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014), cert. denied,
5 We declined to consolidate this appeal with Virginia Carlson’s appeal of her conviction. State v. Philip Carlson, No. A15-0190 (Minn. App. Oct. 13, 2015) (order). We therefore address Virginia Carlson’s appeal separately. State v. Virginia Carlson, No. A15-0179, slip op. (Minn. App. Mar. 14, 2016).
6 135 S. Ct. 1185 (2015). “An error affects a defendant’s substantial rights when there is a
reasonable likelihood that the instruction had a significant effect on the jury verdict.” State
v. Davis, 864 N.W.2d 171, 178 (Minn. 2015). An appellant bears the heavy burden of
proving that an erroneous jury instruction had a significant effect on the verdict. State v.
Wenthe, 865 N.W.2d 293, 299 (Minn. 2015), cert. denied, 136 S. Ct. 595 (2015).
In this case, the district court instructed the jury on accomplice liability with regard
to Philip Carlson:
Liability for crimes of another. Defendant Philip Carlson is guilty of a crime committed by another person when he has intentionally aided the other person in committing it or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it. Defendant Philip Carlson is guilty of a crime, however, only if the other person commits the crime. Defendant Philip Carlson is not liable criminally for aiding, advising, hiring, counseling, conspiring or otherwise procuring the commission of a crime unless some crime, including an attempt, is actually committed.
The court gave a nearly identical instruction with regard to Virginia Carlson. Philip Carlson
did not object to these instructions, which tracked the language of the accomplice-liability
statute. See Minn. Stat. § 609.05, subd. 1 (“A person is criminally liable for a crime
committed by another if the person intentionally aids, advises, hires, counsels, or conspires
with or otherwise procures the other to commit the crime.”). But the court also was required
to
explain to the jury that in order to find a defendant guilty as an accomplice, the jury must find beyond a reasonable doubt that the defendant knew his alleged accomplice was going to commit a crime and the defendant intended his presence or actions to further the commission of that crime.
7 State v. Milton, 821 N.W.2d 789, 808 (Minn. 2012). The court’s failure to so explain is
plain error. State v. Kelley, 855 N.W.2d 269, 277–78 (Minn. 2014). The state rightly
concedes this point.
The issue before us is whether the district court’s plain error affected Philip
Carlson’s substantial rights; that is, whether a reasonable likelihood exists that the jury’s
verdict would have been different had the court properly instructed the jury regarding
accomplice liability. Philip Carlson argues that
[t]hough the evidence demonstrated that each of the Carlsons signed documents and took actions that ultimately became components of a fraud perpetrated against [the bank], the state nevertheless had difficulty establishing that any of the individual acts by either of the [Carlsons] was undertaken with either (1) the knowledge that a crime was being committed, or (2) the intent that such an act would aid in its commission.
According to Philip Carlson, the state’s purported difficulty establishing that he acted with
knowledge of the crimes and intent to aid their commission shows that a reasonable
likelihood exists that the jury would not have found him guilty had it been instructed
properly under Milton.
But the state proved that in July 2007, Philip Carlson and Virginia Carlson
complained that they had been “den[ied] . . . any type of payment that they requested” from
the bank and that “they wanted to find a way . . . to get money through somebody else’s
invoice.” On the same occasion, “[Philip Carlson and Virginia Carlson] talked about asking
[John] Sundblad to put their fee onto his invoice and then [John] Sundblad could pay them
for what they thought they were owed.” About three months after Philip Carlson and
Virginia Carlson made those statements, Interspace caused the first of five fraudulent draw
8 requests to be transmitted to the bank, and the first two fraudulent draw requests involved
John Sundblad.
The state also proved that Philip Carlson and Virginia Carlson owned Interspace,
acted on behalf of Interspace, “were the only ones submitting and putting together draw
requests” in connection with the Amber Woods project, “knew all the specific line items”
on the draw requests, “knew all the detail of the [draw requests and the supporting]
documents,” and “talked about the documents as if they had prepared them.” Philip Carlson
personally signed draw requests two, three, and four, and Virginia Carlson personally
signed supporting documents in connection with draw requests one, two, three, and four
and checks in connection with draw requests one and two. In connection with draw request
two, Philip Carlson induced John Sundblad to endorse a check disbursing loan funds in an
amount that was not owed to Sundblad; the check then was deposited into an Interspace
account. And each of the first four draw requests resulted in the bank’s release of loan
funds that ultimately came into the possession of Philip Carlson and Virginia Carlson.
Moreover, Philip Carlson’s defense was not that he did not know that Virginia
Carlson was going to commit theft by swindle; neither was Philip Carlson’s defense that
he did not intend his presence or actions to further Virginia Carlson’s commission of theft
by swindle. Rather, Philip Carlson’s defense was that “[t]here [wa]s no theft by swindle.”
Philip Carlson attempted to characterize the fraudulent draw requests as the result of “poor
business practices,” “very sloppy bookkeeping,” and “less-than-meticulous attention to
detail.” This defense strategy was consistent with that of Virginia Carlson, including her
9 presentation of expert testimony by a certified public accountant that “more money went
out for the [Amber Woods] project than what came in.”
We look to supreme court caselaw for guidance here. In Kelley, the appellant
challenged his conviction of first-degree aggravated robbery based on an unobjected-to
jury instruction on accomplice liability. Id. at 272. The supreme court concluded that the
district court plainly erred in “fail[ing] to explain the intentionally aiding element [of
accomplice liability] as required by Milton.” Id. at 275, 277–78. Yet the supreme court also
concluded that “there is no reasonable likelihood that the erroneous jury instruction had a
significant effect on the jury verdict because there is considerable evidence of [the
appellant]’s guilt, and his defense did not focus on accomplice liability.” Id. at 284. The
court noted that “[the appellant] did not argue that he did not know the other person was
going to commit the crime, or that he did not intend his presence to further the commission
of the crime.” Id.
Similarly in this case, the state presented strong evidence that Philip Carlson and
Virginia Carlson formed and executed a plan to trick the bank into releasing loan funds and
to gain possession of those funds. And Philip Carlson made no claim that he was unaware
of Virginia Carlson’s crimes or that he had no intent to aid Virginia Carlson’s commission
of the crimes; instead, he argued that no crimes were committed. Philip Carlson has not
met his heavy burden to prove a reasonable likelihood that the jury would not have found
him guilty had it been instructed properly under Milton. The district court’s plain error
therefore did not affect Philip Carlson’s substantial rights and is not grounds for reversal.
10 Pro se arguments
Sufficiency of the evidence
“It is axiomatic that it is the State’s burden to prove every element of the charged
offense.” State v. Struzyk, 869 N.W.2d 280, 289 (Minn. 2015). “The elements of theft by
swindle are: (i) the owner of the property gave up possession of the property due to the
swindle; (ii) the defendant intended to obtain for himself or someone else possession of the
property; and (iii) the defendant’s act was a swindle.” State v. Pratt, 813 N.W.2d 868, 873
(Minn. 2012); see also Minn. Stat. § 609.52, subd. 2(4) (providing that a person commits
theft who “by swindling, whether by artifice, trick, device, or any other means, obtains
property or services from another person”).6 “The essence of a swindle is the defrauding
of another of his property by deliberate artifice.” State v. Olkon, 299 N.W.2d 89, 106
(Minn. 1980). “[P]ermanent deprivation [of the property] is not an element of theft by
swindle.” Pratt, 813 N.W.2d at 875 (quotation marks omitted). And the state need not
prove that the swindler acted without claim of right to the property. See State v. Ray, 390
N.W.2d 843, 846–47 (Minn. App. 1986) (rejecting appellant’s argument that he had a right
to trick victims into paying him for legal services and concluding that swindle was
complete “when appellant intentionally tricked [victims] into giving $10,000 for an appeal
bond,” reasoning that “[w]hether [victims] received legal services, either before or after
6 Because Philip Carlson was convicted of felony theft by swindle, the state was required to prove an additional element: that “the value of the property or services stolen is more than $35,000.” Minn. Stat. § 609.52, subd. 3(1). But Philip Carlson does not contest the sufficiency of the evidence to prove the value element of felony theft by swindle.
11 they gave the $10,000, is immaterial to the criminal charge because they gave the $10,000
for a bond, not in payment for legal services”).
“A person is criminally liable for a crime committed by another if the person
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05, subd. 1. “‘[I]ntentionally aids’ includes
two important and necessary principles: (1) that the defendant knew that his alleged
accomplices were going to commit a crime, and (2) that the defendant intended his presence
or actions to further the commission of that crime.” State v. McAllister, 862 N.W.2d 49, 52
(Minn. 2015) (quotations omitted). “Intent generally is proved circumstantially, by
inference from words and acts of the actor both before and after the incident.” State v. Cox,
798 N.W.2d 517, 537 (Minn. 2011) (quotation omitted).
Philip Carlson makes various arguments that appear to attack the sufficiency of the
circumstantial evidence to support his conviction of felony theft by swindle. We evaluate
the sufficiency of circumstantial evidence using a two-step test. State v. Fox, 868 N.W.2d
206, 223 (Minn. 2015), cert. denied, 136 S. Ct. 509 (2015). We first identify the
circumstances proved, “defer[ring] to the fact-finder’s acceptance of the proof of these
circumstances and the fact-finder’s rejection of evidence in the record that conflicts with
the circumstances proved by the State.” Id. Then we “examine independently the
reasonable inferences that might be drawn from the circumstances proved.” Id. “To sustain
a conviction based on circumstantial evidence, the reasonable inferences that can be drawn
from the circumstances proved as a whole must be consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id.
12 In our analysis of the jury-instruction issue, we already have identified the
circumstances proved in this case. We conclude that these circumstances are consistent
with the hypothesis that Philip Carlson intentionally aided or conspired with Virginia
Carlson in each count of commission and attempted commission of theft by swindle. We
further conclude that these circumstances are inconsistent with any rational hypothesis
except that Philip Carlson intentionally aided or conspired with Virginia Carlson in each
count of commission and attempted commission of theft by swindle. We therefore reject
Philip Carlson’s sufficiency-of-the-evidence arguments.
Prosecutorial misconduct
Philip Carlson also argues that the prosecutor committed misconduct by referring
to the draw requests and their supporting documents as “false,” “fake,” and “fraudulent”;
claiming that Philip Carlson and Virginia Carlson planned to swindle the bank; presenting
false testimony and exhibits; and arguing in closing that “this case is not about how Philip
[Carlson] and Virginia Carlson used the loan funds, nor is it about whether the defendants
claim to have a right to the loan funds.” “In reviewing a claim of prosecutorial misconduct,
we first examine the challenged conduct to determine whether any error occurred.” State
v. Mogler, 719 N.W.2d 201, 211 (Minn. App. 2006). We have examined closely the
challenged conduct and conclude that the prosecutor’s arguments and presentation of
evidence did not constitute error.
Brady violation
“A failure by the State to disclose material, exculpatory evidence justifies a new
trial.” State v. Brown, 815 N.W.2d 609, 622 (Minn. 2012) (citing Brady v. Maryland, 373
13 U.S. 83, 87–88, 83 S. Ct. 1194, 1196–97 (1963)). “To establish a Brady violation, it must
be true that: (1) the evidence at issue is favorable to the accused, either because it is
exculpatory or it is impeaching; (2) the evidence was willfully or inadvertently suppressed
by the State; and (3) prejudice to the accused resulted.” Id. “Whether a discovery violation
occurred presents a question of law, which [appellate courts] review de novo.” State v.
Colbert, 716 N.W.2d 647, 654 (Minn. 2006).
Philip Carlson appears to argue that the state committed a Brady violation by
delaying its subpoena of documents regarding the Amber Woods project from the Federal
Deposit Insurance Corporation (FDIC documents) and by failing to more thoroughly
investigate and disclose the financial details of the project. Philip Carlson generally asserts
that the allegedly suppressed evidence is favorable to him, but he makes no attempt to
identify particular evidence that is either exculpatory or impeaching. Moreover, he
provides no authority for his argument that the timing of the state’s subpoena and the scope
of the state’s investigation constitute suppression of evidence under Brady. Finally, while
he baldly asserts that the alleged suppression was prejudicial, he does not attempt to explain
how prejudice resulted. We conclude that Philip Carlson has failed to establish any element
of a Brady violation.
Right to testify
“A defendant’s right to testify is protected by the Due Process Clause of the United
States Constitution and Minnesota law.” Andersen v. State, 830 N.W.2d 1, 11 (Minn.
2013). “The defendant’s waiver [of that right] must be knowingly and voluntarily made.”
Id. “The defendant has the burden of proving that he or she did not voluntarily and
14 knowingly waive the right to testify.” Id. “Absent a finding to the contrary, [appellate
courts] presume that the defendant waived the right to testify for the reasons stated on the
record.” Id.; see also State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980) (“Without anything
in the record suggesting otherwise, we must presume that the decision not to testify was
made by defendant voluntarily and intelligently.”)
Philip Carlson argues that the state “filed a second case of attempted theft by swindle
against [him] days before trial as a virtual ‘gag order’ to prevent [him] from testifying on
[his] own behalf under the threat of perjury and/or impeachment.” But the record shows
that, prior to Philip Carlson’s waiver of his right to testify, the district court addressed him
personally regarding the existence and substance of his testimonial rights. Philip Carlson
affirmed that he understood his rights and that he had no questions about what the court
had said. Philip Carlson also engaged in the following colloquy immediately prior to
waiving his right to testify:
THE COURT: Mr. Philip Carlson, have you had enough time to talk with your lawyer about this? PHILIP CARLSON: Yes. THE COURT: Has your lawyer answered all of your questions? PHILIP CARLSON: Yes. THE COURT: Okay. Then what is it you would like to do? Testify or not testify? PHILIP CARLSON: Not testify. THE COURT: Is it your own personal choice not to testify? PHILIP CARLSON: Yes.
Because nothing in the record suggests that Philip Carlson’s waiver of his right to testify
was coerced by the state or otherwise was not knowing and voluntary, we reject his
argument to the contrary.
15 Miscellaneous arguments
Philip Carlson argues that he was entitled to dismissal of the indictment against him
because the state failed to disclose exculpatory evidence to the grand jury. But Philip
Carlson was charged by complaint, not by indictment. Philip Carlson identifies no
deficiency in the complaint. Consequently, this argument warrants no further
consideration.
Philip Carlson argues that the draw requests and their supporting documents were
inadmissible under Minn. R. Evid. 408. That rule provides that
[e]vidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
Minn. R. Evid. 408. The rule mandates exclusion in a civil suit of evidence of settlement
negotiations regarding the claims underlying that suit; it has no application in this criminal
case.
Philip Carlson argues that the district court erred in ruling that the FDIC documents
not be used at trial. The court actually ruled that the state could not use the FDIC documents
in its case in chief; Philip Carlson and Virginia Carlson, on the other hand, were given an
additional week to review the FDIC documents for possible use in their defenses. In any
event, Philip Carlson fails to explain why the court’s ruling was erroneous. We therefore
do not give further consideration to this general assignment of error. See State v. Andersen,
871 N.W.2d 910, 915 (Minn. 2015) (“An assignment of error based on mere assertion and
16 not supported by any argument or authorities in appellant’s brief is waived and will not be
considered on appeal unless prejudicial error is obvious on mere inspection.” (quotation
omitted)).
Philip Carlson asserts that “alternative perpetrators committed the crime of theft by
swindle.” A district court may abuse its discretion by excluding evidence that an alternative
perpetrator committed the crime for which the defendant is being prosecuted. Davis, 864
N.W.2d at 180–81. Yet Philip Carlson does not claim that the district court excluded any
alternative-perpetrator evidence. Instead, Philip Carlson essentially raises a new defense
for our consideration, asserting that Roos, Leuer, and Fenning are guilty of theft by
swindle. This assertion is not cognizable on appeal. Cf. State v. Porte, 832 N.W.2d 303,
308–09 (Minn. App. 2013) (noting appellant’s assertion that it is more likely that controlled
substance belonged to alternative perpetrators, characterizing assertion as “essentially
ask[ing] this court to reweigh the evidence,” and declining to do so).
Philip Carlson appears to make a public-policy argument against his conviction,
claiming that “if left to stand [the conviction] creates a fatal defect to civil law.” Philip
Carlson’s failure to identify reversible error cannot be overcome by public-policy
arguments. See State v. Christenson, 827 N.W.2d 436, 441 n.2 (Minn. App. 2012)
(“Because this court is limited in its function to correcting errors it cannot create public
policy.” (quotation omitted)), review denied (Minn. Feb. 19, 2013).
Philip Carlson argues against restitution. Although the prosecutor initially argued
for restitution at the sentencing hearing, the state ultimately did not seek a restitution order,
17 and the district court issued no restitution order. Here, Philip Carlson makes no allegation
of error for our review.
Finally, Philip Carlson’s pro se reply brief raises several issues, none of which were
addressed in his counseled brief or in his lengthy principal pro se brief. “Failure to brief or
argue an issue on appeal results in waiver of that issue on appeal.” Ouk v. State, 847 N.W.2d
698, 701 n.7 (Minn. 2014), cert. denied, 135 S. Ct. 1429 (2015). “Issues not raised or
argued in appellant’s [principal] brief cannot be revived in a reply brief.” State v. Petersen,
799 N.W.2d 653, 660 (Minn. App. 2011) (citing State v. Yang, 774 N.W.2d 539, 558
(Minn. 2009)), review denied (Minn. Sept. 28, 2011). We decline to address the issues
raised in Philip Carlson’s pro se reply brief because Philip Carlson forfeited their appellate
Affirmed.