State v. Christensen

901 N.W.2d 648, 2017 WL 3378032, 2017 Minn. App. LEXIS 94

• Court: Court of Appeals of Minnesota
• Decided: August 7, 2017
• Docket: A16-1029; A16-1372
• Status: Published

Opinions

OPINION

CONNOLLY, Judge

Appellant was convicted of two counts of financial exploitation of a vulnerable adult. He challenges his conviction and the denial of his motion for a new trial, arguing that the jury’s verdicts were inconsistent. He also challenges the district court’s order that he pay restitution to the vulnerable adult’s conservator, arguing that conservators are not among the entities identified as victims entitled to restitution by Minn. Stat. § 611A.01(b). Because appellant’s challenge to his conviction is based on a misreading of the jury’s verdicts, we affirm the conviction. However, because we agree that the district court, like this court, has no authority to add to those whom the legislature has identified as victims entitled to restitution, we reverse the restitution order and remand for proceedings consistent with this opinion.

FACTS

During most of 2014, appellant David Christensen had control of the financial affairs of his uncle, A.C., a vulnerable adult. Appellant was charged with financial exploitation of a vulnerable adult under Minn. Stat. § 609.2335, subd. l(l)(ii) (using a vulnerable adult’s resources for the benefit of someone other than the vulnerable adult) and (iii) (depriving a vulnerable adult of the vulnerable adult’s resources for the benefit of someone else) (2012). In 2015, the district court appointed Lutheran Social Services (L.S.S.) as A.C.’s conservator.¹

At the conclusion of appellant’s trial, the jurors received eight verdict forms. The forms for charges one through four each asked first if appellant was guilty of violating Minn. Stat. § 609.2335, subd. l(l)(ii), then, if he was guilty, in what amount: $5,000 to $35,000 (charge one); $1,000 to $5,000 (charge two); $500 to $1,000 (charge three); and “not more than $500” (charge four). Charges five through eight asked if appellant was guilty of violating Minn. Stat. § 609.2335, subd. l(l)(iii) and, if so, in which of those amounts.

The jury found appellant guilty of charges one through four in the amount of $1,000 to $5,000 (charge two) and not guilty of charges five through eight. Appellant moved for a new trial, arguing, among other things, that the jury’s verdicts were legally inconsistent.' His motion for a new trial was denied. Appellant’s sentence was stayed, and he was placed on probation for up to five years. He filed a notice of appeal from the judgment (A16-1029).

L.S.S., in its capacity as A.C.’s conservator, filed a request for restitution for him. L.S.S. stated that the funds it sought to recover “were used by [appellant] for his own benefit. These funds belonged to [A.C.]—a vulnerable adult.” Attached to the request was a list of expenses totaling $10,229.14 paid by appellant to various entities, including $4,895.56 to a car dealership.

At the hearing, appellant argued that L.S.S. was not a “victim” as defined by the restitution statute. After the hearing, A.C.’s guardian notified the district court that A.C. “does not seek to collect monetary restitution from [appellant].” The district court concluded that L.S.S. was allowed to make a restitution claim on A.C.’s behalf and issued a restitution order requiring appellant to pay $4,895.56.² Appellant challenged the restitution order in a second appeal (A16-1372), and this court consolidated the appeals.

ISSUES

1. Were the jury’s verdicts inconsistent?

2. Is L.S.S. a “victim” within the meaning of Minn. Stat. § 611A.01(b)?

ANALYSIS’

1. Jury’s verdicts

Whether two jury verdicts are legally inconsistent is a question of law, subject to de novo review. State v. Leake, 699 N.W.2d 312, 325 (Minn. 2005). A defendant is entitled to a new trial only if the verdict is legally inconsistent, as opposed to merely logically inconsistent. Id. at 325-26. Art acquittal on one count and a finding of guilty bn another count can be logically 'inconsistent, but cannot be legally inconsistent. State v. Laine, 715 N.W.2d 425, 434-35 (Minn. 2006); Legal inconsistency occurs only “when proof of the elements of one offense negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A legally inconsistent verdict requires that ’two guilty verdicts be mutually exclusive; See, e.g., State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990) (‘We are unable to reconcile the jury’s findings that [the] defendant caused the death of his wife with premeditation and intent and at the same time caused that death through negligence or reckless conduct.”).

Here, appellant was found guilty of only one charge: violating Minn. Stat. § 609.2335, subd. 1(1)(ii) in an amount more than $1,000 but less than $5,000. There can be no legal inconsistency in the verdict when a defendant is found guilty of only one charge. See Moore, 458 N.W.2d at 94. Finding appellant guilty of misuse of a vulnerable adult’s resources in an amount more than $1,000 but less than $5,000 necessarily precluded finding that he was guilty of misuse of a vulnerable adult’s resources in any amount over $5,000 (e.g., $5,001 to $35,000, as in charge one) or less than $1,000 (e.g., $500 to $1,000 as in charge three and $1 to $500, as in charge four). The jury’s findings that appellant was not guilty of misuse in either of those amounts was not legally inconsistent.

Appellant argues that the jury’s verdict on charge four was inconsistent with its verdict on charge two, i.e., that appellant took more than $1,000 but less than $5,000. But appellant misquotes charge four, saying the. verdict form asked, the. jury “Was the value of the money stolen more than $500.00?” Actually, the verdict form asked the jury, “Was the value of the money stolen not more than $500.00?” (emphasis added), The jury answered “No” when asked, “Was the value of the money stolen not more than $500?” consistent with its “Yes” answer when asked, “Was the value of the moneys stolen more than $1,000.00, but not mox-e than $5,000.00?” Thus, there was no logical inconsistency, let alone legal inconsistency, in .the jury’s verdict that appellant was guilty of one charge.

2. Is a conservator a “victim” within the meaning of Minn. Stat. § 611A.01(b)?

“Interpretation of a statute presents a question of law, which we review de novo.” Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011).

“Upon conviction of a felony, ... the court ... may sentence the defendant ... (5) to payment of court-ordered restitution in addition to either imprisonment or payment of a fine, or both.... ” Minn. Stat. § 609.10, subd. 1(a) (2016). The restitution available in sentences for felonies includes: “(1) payment of compensation to the victim or the victim’s family....? Minn. Stat. § 609.10, subd. 2(a) (2016). “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 (2016).

“Victim” means a natural person who incurs loss or harm as a result of a crime, including a good faith effort'to prevent a crime, and for purposes of sections 611A.04 and 611A.045, also includes (1) a corporation that incurs loss or harm as a result of a crime; (2) a government entity tjiat incurs loss or harm as a result of a crime, and (3) any other entity authorized to receive restitution under section 609.10 or 609.125. The term “victim” includes the family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person.

Minn. Stat. §. 611A.01(b). The issue here is a victim’s right to restitution, and this definition of the term “victim” is specific to the statute conferring that right.

A.C. was indisputably the victim of appellant’s crime. A.C. was also an incompetent person, so his family member, guardian, or custodian, but not his conservator, could also seek restitution as a victim under Minn. Stat. § 611A.01(b).³ In statutory construction, “[t]he doctrine expressio unius est exclusio alterius means that the expression of one thing is the exclusion of another. Expressio unius generally reflects an inference that any omissions in a statute are intentional.” State v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011) (citations omitted); see, e.g., Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 719 (Minn. 2014) (“The Legislature’s expression of a general rule of several liability subject to four exceptions in subdivision 1 [of Minn. Stat. § 604.02 (2012) ] precludes an interpretation of subdivision 2 that would effectively create a fifth exception to the several liability rule.”); City of Moorhead v. Red River Valley Coop. Power Ass’n, 811 N.W.2d 151, 159 (Minn.App. 2012) (holding that, in the statute listing damages in eminent domain proceedings, “the words ‘must include’ limit the fact-finder to consideration of only the four specifically enumerated factors”) aff’d, 830 N.W.2d 32 (Minn. 2013).

Moreover, an appellate court “cannot supply that which the legislature purposely omits or inadvertently overlooks.” Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC, 886 N.W.2d 208, 214 (Minn. 2016); see also State v. Alexander, 856 N.W.2d 340, 347 (Minn.App. 2014) (holding that a statute directing district courts to determine the amount of restitution based on victim’s loss and defendant’s ability to pay did not authorize district courts to order a defendant to sell personal property to pay restitution). For example, “[i]t may well be that a district court should have the authority to order a defendant to sell personal property to satisfy a restitution order, but it is up to the legislature, and not [an appellate court], to change the law.” Alexander, 855 N.W.2d at 349.

The restitution statute formerly defined “victim” as “a natural person who incurs loss or harm as a result of a crime ... If the victim is a natural person and is deceased, ‘victim’ means the deceased’s surviving spouse or next of kin.” Minn. Stat. § 611A.01(b) (2002), quoted in State v. Jones, 678 N.W.2d 1, 23 (Minn. 2004) (concerning whether the sister of a murder victim was entitled to restitution)". Jones interpreted the phrase “surviving spouse or next of kin,” holding that the two terms were mutually exclusive so that, “in a murder case the [person or persons] eligible to receive restitution include either the murder victim’s surviving spouse or [the] nearest living blood relation [of the murder victim].” Jones, 678 N.W.2d at 25-26. The murder victim’s surviving children were hér next of kin, so the district court’s denial of restitution to the murder victim’s sister was affirmed. Id. at 26.

In 2005, the year after Jones was released, the legislature'redefined “victim” to include “the family members," guardian or custodian of a minor, incompetent, incapacitated, or deceased person,” replacing the phrase “the deceased’s surviving spouse or next of kin.” 2005 Minn. Laws ch. 136, art. 8, § 22 at 1016-17. The legislature’ could have said “family members, guardian, custodian, or conservator” or “family members or others, including but not limited to guardians or custodians,” but it did not say either. Absent such language, this court may not add “conservator” to the list of those included as victims. See Toyota-Lift of Minn., 886 N.W.2d at 214. Moreover, both guardians and conservators act on behalf of individuals but the legislature included only guardians in the statute.'

We note that the issue here is not the logical, social, or other merit of including “conservator” on the list of those entitled to seek restitution; it is this court’s authority, or lack of authority, to “supply that which the legislature purposely omits or inadvertently overlooks.” See id. Whether conservators should or should not be included among those entitled to seek restitution is outside this court’s scope of "review.

It is true that L.S.S., as A.C.’s conservator, has a statutory duty to “institute suit on [his] behalf ... and represent [him] in any court proceedings” and a statutory power to “apply on [his]'behalf ... for any assistance, services, or benefits available to [him] through any unit of government.” Minn. Stat. § 524.5417(c)(8), (6) (2016).⁴ But those having a right to restitution from an offender after a conviction of a crime are the “victims” of that crime as the word “victim” is defined in the restitution statute, and that definition does not include conservators. See Minn. Stat. § 611A.01(b). Assuming that these provisions are in conflict, the more specific prevails. See Minn. Stat. § 645.26, subd. 1 (2016) (“[T]he special provision shall prevail and shall be construed as an exception to the general provision.”).

The statute defining “victim” in the context of restitution is far more specific to the restitution award at issue here than is the statute setting out the duties and powers of conservators, which applies to conservators generally regardless of whether the protected person is seeking or is entitled to restitution. See Anderson v. State, 794 N.W.2d 137, 140 (Minn.App. 2011) (holding that, in the context of restitution awards, only a statute prescribing the amount of restitution for victims of a particular crime is more specific than the restitution statute). Thus, the definition of “victim” in the restitution statute prevails.

While it may be that conservators should be added to the list of victims entitled to restitution, it is up to the legislature and not this court to make that change. See Alexander, 855 N.W.2d at 349; Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App. 1987) (“[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”), review denied (Minn. Dec. 18, 1987).

DECISION

Because the jury’s verdicts were not inconsistent, we affirm the denial of appellant’s motion for a new trial. Because the legislature did not include conservators among those who may be victims entitled to restitution, we reverse the restitution award to L.S.S. and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

1 . The order appointing L.S.S. noted that A.C.'s neuropsychological exam showed he was "essentially illiterate” with his "reading capacity ... in tire lower half of the mildly mentally retarded range at the 1.6 grade level” and said his "reasoning needs to be guided in small logical steps when novel concepts are being presented” to him.

2 . The district court noted that appellant had testified that this amount was paid from A.C.’s bank account for repairs to appellant's truck, which he had since sold for $4,000, and that “[t]he Court does not find it prudent to go beyond the specific monetary parameter found by the jury in the underlying criminal case.”

3 . A.C.’s guardian, who would have been entitled to seek restitution under the statute, explicitly declined to seek restitution from appellant on A.C.'s behalf.

4 . The question here involves seeking restitution for a conservatee under Minn. Stat. § 611A.04, subd. 1; it is not bringing an action on behalf of a conservatee. Appellant notes in his brief that “L.S.S, is not without the means to recover money it believes [A.C;] lost as a result of being financially exploited by [a]ppellant because L.S.S. [as A.C.’s conservator] can initiate a civil suit to recover those losses." We agree: if L.S.S. had brought an action on its conservatee's behalf, rather than filed for restitution on the conservatee’s behalf, the result would be different. See Haugland ex rel. Donovan v. Mapleview Lounge & Bottleshop, Inc., et al., 666 N.W.2d 689, 693 (Minn. 2003) (holding that a conservator who brought a civil-damages action in her own name under the Minnesota Civil Damages Act did not, "as conservator for [the deceased’s only child], have a right of action in her own name for personal injury or pecuniary loss,” but was entitled to amend the complaint to bring the action under the child's name, and rejecting the argument that the conservator “[did] not have the capacity to bring the claim on [the child’s] behalf").