This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





John Patrick Graham,



Filed February 11, 2003


Hudson, Judge


Mahnomen County District Court

File No. K00126


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and


Eric O. Boe, Mahnomen County Attorney, Thomas A. Opheim, Special Assistant County Attorney, 318 East Main Street, Ada, Minnesota 56510 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the trial court’s restitution order, arguing that: (a) the trial court failed to consider appellant’s proffered affirmative defense to liability for damages; and (b) the record does not support the amount of restitution imposed.  Because we conclude that the district court considered and properly rejected appellant’s proffered defense, and because we find that the evidence supports the amount of restitution imposed, we affirm.


            On January 24, 2000, appellant John Patrick Graham (Graham) shot two dogs that he alleged he saw chasing a deer.  The dogs belonged to Brad Athmann (Athmann).  One dog was a German shepherd (Max) and the other, a purebred Labrador retriever (Gypsy) that Athmann had trained as a hunting dog.  Gypsy was registered with the American Kennel Club and was seven-years, eight-months old at the time of her death.

            On January 30, 2001, Graham was charged with two counts of first-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 1(3) (2000); two counts of third-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2 (2000); and one count of cruelty to animals, in violation of Minn. Stat. § 343.21, subd. 7 (2000).  Minn. Stat. § 97B.011 (2000), permits, under certain circumstances, the killing of a dog if the dog is seen pursuing “big game.”  The statute also provides that a person who kills a dog under these circumstances is not liable for damages.  On April 8, 2001, Graham notified the prosecutor that he intended to rely on Minn. Stat. § 97B.011(2), as an affirmative defense, and Graham later asserted this defense at the probable-cause hearing.  But the district court concluded that the defense was irrelevant at a probable-cause hearing and would be more appropriately raised at trial.  No trial was held.  Instead, on January 17, 2002, Graham pleaded guilty to two counts of third-degree criminal damage to property.  At the guilty-plea hearing, Graham did not raise section 97B.011(2) as an affirmative defense. 

On January 31, 2002, the court held a restitution hearing.  Graham and the state each presented expert witnesses as to Gypsy’s fair market value as a trained hunting dog.[1]  But Graham also reasserted his affirmative defense under section 97B.011(2) and attempted to give testimony that the dogs he shot were chasing a deer.  The state objected, arguing that the testimony was irrelevant because Graham had pleaded guilty and therefore had waived any defense to killing the dogs.  Graham countered that, while his guilty plea acted as a waiver of his defense to killing the dogs, it did not constitute a waiver with respect to the separate question of his immunity from damages for killing the dogs.  The trial court initially ruled that Graham’s guilty plea foreclosed any defense to liability for damages.  But the trial court subsequently requested that both parties brief the issue and advised that it would not allow Graham to assert the affirmative defense if it was not satisfied that section 97B.011(2) was applicable to the issue of restitution.

On March 6, 2002, the trial court issued its restitution order, finding that Graham should pay $2,000 in restitution for Gypsy, but not addressing the applicability of section 97B.011(2) as an affirmative defense to liability for damages.  This appeal followed.



            Graham argues that the trial court erred because it failed to rule on his claim that Minn. Stat. § 97B.011(2) could be asserted as an affirmative defense on the issue of liability, even though he pleaded guilty to the underlying criminal offense.  We disagree. 

            We use a de novo standard of review to determining whether the court below erred in applying the law.  State v. Basting, 572 N.W.2d 281, 282 (Minn. 1997).  Statutory construction is a question of law, which this court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).      

Graham pleaded guilty to two counts of third-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2(a).  There was no agreement during plea negotiations regarding the assertion of any affirmative defenses on the issue of restitution.  But at the restitution hearing, Graham attempted to give testimony to establish an affirmative defense under Minn. Stat. § 97B.011(2).  This statute provides in full: 



A person who observes a dog wounding, killing, or pursuing in a manner that endangers big game may kill the dog:


(1) at anytime, if the person is a peace officer or conservation officer; or


(2) between January 1 and July 14, if the person is not a peace officer or conservation officer and the discharge of firearms is allowed.


The officer or person is not liable for damages for killing the dog.


(Emphasis added.)

Graham attempted to testify that, under section 97B.011(2), he justifiably killed the dogs because the incident occurred in January and the dogs were chasing a deer.  The trial court initially ruled that the testimony was irrelevant because Graham had waived the defense when he pleaded guilty.  The trial court stated: 

With a guilty plea to the crime, I’m not going to allow a defense.  I — the Court will find that it is similar to a self-defense claim.  Once a guilty is – once a guilty plea is entered, the defense is waived, unless there is a stipulation to argue it at the time of the restitution hearing.  There was no stipulation to argue it, thus – say for example, and the Court is going to make a finding on this, a person was going to raise a self-defense issue in an assault in the fifth – an assault case, once they pled guilty, restitution is – or plead guilty or found guilty, the defense does not apply to restitution.  I’m not going to allow it.


But Graham continued to argue at the restitution hearing that the defense was relevant and appropriate.  The trial court then allowed Graham to continue to testify briefly and requested that the parties submit briefs.  The trial court stated:

I will allow the parties to brief that and submit it to me within 10 days of today’s hearing.  I will allow brief testimony today subject to the fact that if the court rules, after reviewing the law, to conclude this matter, and I recognize it’s been going on for two years, I will allow brief testimony today to the defense, but if the Court is not satisfied that the law applies, I will not consider it.


In its restitution order, the trial court imposed damages but did not expressly reaffirm its earlier ruling that, because Graham had pleaded guilty, he waived the right to assert section 97B.011(2) as a defense to damages at the restitution hearing.  Graham argues that the trial court’s failure to explicitly address the statute cannot be construed as an implicit ruling that Graham waived the defense by virtue of his guilty plea.  Graham contends that the trial court’s decision to impose restitution may instead reflect the trial court’s conclusion that, while the defense had not been waived, Graham failed to meet his burden of proof.  We disagree. 

The trial court specifically stated that, after reviewing the briefs, if it was not satisfied that the law applied, it would not consider the defense in its decision.  The absence of any discussion of the statute in its restitution order implies that the trial court concluded that the statute was inapplicable as a matter of law, and the court was therefore affirming its earlier ruling.  The record, taken as a whole, demonstrates that the trial court rejected Graham’s affirmative defense on the restitution issue because he waived it when he pleaded guilty to the underlying criminal offense.

But Graham further argues that section 97B.011 encompasses two distinct and severable policies.  He contends that the first policy is expressed in the first sentence:  “A person who observes a dog wounding, killing, or pursuing in a manner that endangers big game may kill the dog * * * .”  Minn. Stat. § 97B.011.  The statute conditions this privilege on either the person’s status as a peace officer or conservation officer; or on the time of year when the killing occurs.  Id.  The second policy, Graham argues, is expressed in the final sentence:  “The officer or person is not liable for damages for killing the dog.”  Id.  According to Graham, this part of the statute is unconditional.  Therefore, Graham could be held criminally liable for killing the dogs, but not for the damages.  We disagree.

Minn. Stat. § 97B.011 is just one paragraph.  There are no sections or subdivisions.  Nothing in its composition suggests that it is divided into a liability section and a separate damages section.  When statutory language is free from ambiguity, we must give effect to its plain meaning.  Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn. 1998).  The plain meaning of section 97B.011 is that one who kills a dog in the manner described, and meets the criteria in parenthetical (1) or (2), is not liable for damages resulting from loss of the dog(s).  Simply put, the offender is not guilty of an unlawful act and is immune against a claim for damages. 

Here, Graham is guilty of an unlawful act.  He pleaded guilty to two counts of third-degree criminal damage to property, and by doing so, lost the opportunity to assert a defense to the charges against him.  State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (a counseled guilty plea acts as a waiver of any nonjurisdictional defects, including constitutional violations and a statute-of-limitations defense); State ex rel. Savage v. Rigg, 250 Minn. 370, 375, 84 N.W.2d 640, 645 (1957) (a defendant in a criminal case, who is represented by competent counsel, and who enters a guilty plea, waives all defenses other than that the information charges no offense); State v. Johnson, 422 N.W.2d 14, 16 (Minn. App. 1988) (a guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects arising prior to entry of the plea), review denied (Minn. May 16, 1988).  Moreover, embracing Graham’s statutory interpretation would lead to an absurd result.  Under Graham’s theory, one could plead guilty to killing a dog, an admission of an unlawful act without legal justification under section 97B.011, and still use the very same statute to argue that he or she is not liable for the damages.  This is an absurd result.  Furthermore, such a holding undermines the recognized benefit of plea negotiations by allowing a defendant to take advantage of a negotiated plea agreement and then assert a statutory defense inconsistent with the plea agreement.  In construing statutes, this court must presume the legislature did not intend an absurd result.  Minn. Stat. § 645.17(1) (2000). 

We conclude that the trial court considered and properly rejected Graham’s claim.  Minn. Stat. § 97B.011(2) cannot be offered as a defense against liability for damages at a restitution hearing where the defendant has pleaded guilty to the underlying offense.


Graham argues next that the record does not support the trial court’s finding that Gypsy’s fair market value was $2,000.  Graham contends that Athmann himself only valued the dog at $1,800, and, in any case, Athmann’s testimony was too vague and speculative to support his opinion.  Graham further argues that because the state’s experts had no personal knowledge of Gypsy’s skills or abilities as a trained hunting dog, their testimony cannot support the trial court’s finding.  We disagree.

“[T]rial courts are given broad discretion in awarding restitution.”  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999), cert. denied, 528 U.S. 1165, 120 S. Ct. 1183 (2000) (citation omitted).  But the record must support the amount of restitution awarded and that amount must be reasonable.  State v. Hanninen, 533 N.W.2d 660, 662 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995).  The state has the burden of establishing by a preponderance of the evidence the amount of the victim’s loss sustained as a result of the offense.  Minn. Stat. § 611A.045, subd. 3 (2000). 

We review a trial court’s factual findings for clear error.  State v. Hendry, 636 N.W.2d 158, 163 (Minn. App. 2001), review denied (Minn. Jan. 29, 2002).  A factual finding is clearly erroneous “if this court, after reviewing the record, reaches the firm conviction that a mistake was made.”  State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).  We leave a trial court’s findings intact so long as they are reasonably supported by facts in the record.  State v. Schluter, 653 N.W.2d 787, 793 (Minn. App. 2002).  

Athmann testified that he spent 40 to 50 hours with Gypsy in obedience training and that he also trained Gypsy as a hunting dog.  Athmann testified that Gypsy could obey hand signals, flush out game prey, and stay within a short distance of Athmann while hunting.  Athmann’s estimate was consistent with the estimates offered by two expert hunting-dog trainers who also testified at the restitution hearing. 

Mike Pierce, who has 12 years experience in training hunting dogs, testified that he would charge $2,500 to train a dog to Gypsy’s skill level.  Doug Schoenborn, a hunting-dog trainer, testified that a dog in her prime with Gypsy’s skill level would cost between $2,000 and $2,500 to replace.  As Graham correctly points out, neither expert had personally trained Gypsy, and each had relied on Athmann’s testimony of Gypsy’s abilities.  But as the dog’s owner and trainer, Athmann was in the best position to know Gypsy’s abilities.  In addition, because the state’s experts did not have personal knowledge of Gypsy, the trial court limited this expert testimony to the fair market value of a dog Gypsy’s age with her skill level.  Furthermore, Graham had an opportunity to present his own witness to refute this testimony; Graham’s expert testified that there was no market for an eight-year-old Labrador retriever, no matter how well-trained.  Presented with all the testimony, the trial court was then free to weigh the evidence presented and decide on Gypsy’s fair market value.  The function of the factfinder is to “choose between conflicting factual accounts and determine the credibility, reliability, and weight to be given to witnesses’ testimony.”  State v. White, 357 N.W.2d 388, 390 (Minn. App. 1984) (citation omitted).  The trial court was within its province as factfinder by choosing to credit the testimony of Athmann and the state’s two expert witnesses over that of appellant and his expert witness.  

The record reasonably supports the trial court’s finding that Gypsy’s fair market value was $2,000, and we will not disturb this finding. 



[1] Graham does not dispute the court’s valuation of Max, the German shepherd, who had a blood disorder and was primarily used as a watch-dog.