This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Lorna Marlene Livingston,


Filed January 6, 2004


Wright, Judge


Hennepin County District Court

File No. 02001632



John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Presiding; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




In this appeal from an order modifying her sentence for theft by swindle, appellant argues that her restitution obligation should be reduced because respondent failed to prove by a preponderance of the evidence that the victims are entitled to the amount of restitution awarded.  We affirm. 



Appellant Lorna Livingston embezzled funds from three different employers—The Dillon Group, El-Hy-Mec, Inc., and Symmes, Maini & McKee Associates (SMMA). Livingston pleaded guilty to theft by swindle, in violation of Minn. Stat. § 609.52, subd. 2(4) (2000), and theft of more than $2,500, in violation of Minn. Stat. § 609.52, subd. 2(1) (2000).  The district court stayed the imposition of Livingston’s sentence and placed her on probation for seven years. 

The district court also ordered Livingston to pay a total of $82,222.25 in restitution, including $68,070.77 to the Dillon Group; $3,111.06 to El-Hy-Mec; and $11,040.42 to SMMA.  Livingston moved to reduce the amount of restitution, arguing that she should pay only $51,002.36.  The district court reviewed the parties’ written submissions and reduced the restitution award to $63,895.11, consisting of $59,259.52 to the Dillon Group; $3,111.06 to El-Hy-Mec; and $1,524.53 to SMMA.  This appeal followed.




Under Minnesota law, restitution is intended primarily to restore the crime victim to its financial condition prior to the commission of the crime.  Minn. Stat. § 611A.045 (2002); State v. Colsch, 579 N.W.2d 482, 484 (Minn. App. 1998).  The district court has broad discretion in awarding restitution.  State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000).  But the record must provide a factual basis for the amount of restitution awarded by demonstrating the nature and amount of loss with reasonable specificity.  Id. (citing State v. Keehn, 554 N.W.2d 405, 407 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996)).  If monetary restitution is sought, the crime victim, by affidavit or other competent evidence, “must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts.”  Minn. Stat. § 611A.04, subd. 1(a) (2002).  Whether a particular item of restitution fits within the statutory definition is a question of law, which we review de novo.  Id.

To contest the restitution amount, the offender must produce evidence and file “a detailed sworn affidavit . . . setting forth all challenges to the restitution or items of restitution, and specifying all reasons justifying dollar amounts of restitution which differ from the amounts requested by the victim . . . .”  Minn. Stat. § 611A.045, subd. 3(a).  This affidavit is the “sole vehicle by which the offender can meet the burden of pleading, and [is] an essential element of the offender’s case required to meet the burden of production.”  Thole, 614 N.W.2d at 235.  After a proper challenge to the restitution order has been raised, the state bears the burden of proving the amount and appropriateness of the restitution by a preponderance of the evidence.  Minn. Stat. § 611A.045, subd. 3(a); Thole, 614 N.W.2d at 235. 

1.         The Dillon Group


A.            Disputed Checks


The district court awarded the Dillon Group $59,259.52 for 42 unauthorized checks written by Livingston.  Livingston argues that the state failed to prove that four of the checks should be included in the restitution award.  The checks in dispute are payable to (1) U.S. Bancorp Card Services in the amount of $2,842.72; (2) Office Depot in the amount of $388.25; (3) U.S. Bancorp in the amount of $2,000; and (4) Braemar Mailing in the amount of $1,400.  Livingston contends that the state failed to prove that the funds for these checks were not received by the payee. 

While Livingston met her pleading requirement, she did not produce evidence to support her challenge.  See Minn. Stat. § 611A.045, subd. 3(a).  Livingston’s bald assertion that the checks were written for business purposes is the only evidence produced to support her challenge to restitution for these four checks.  In making this assertion, Livingston could not even recall the nature of those business purposes.  She could not explain why the checks were issued, what items were purchased, or where the items are currently located.  Without more, Livingston failed to satisfy her burden of production and to establish a valid dispute as to this aspect of the restitution order.

Conversely, had Livingston properly challenged the restitution order, the prosecution’s burden of proving the type and amount of the restitution by a preponderance of the evidence would have been met.  Robert Dillon testified in his affidavit that the Dillon Group has three employees—himself, his wife, and a bookkeeper.  As bookkeeper, Livingston wrote 42 checks totaling $59,259.52.  Dillon provided copies of the disputed checks and testified that Livingston wrote the checks without authorization.  This level of documentation satisfies the statutory requirements.  Because Livingston wrote the checks without authorization, whether the checks were issued to someone other than the payee is immaterial to the restitution issue.  The state demonstrated by a preponderance of the evidence that Livingston’s crime caused the Dillon Group losses in the amount of $59,259.52.

Because the record contains a factual basis for the restitution ordered, the district court did not abuse its discretion in awarding the Dillon Group $59,259.52 in restitution. 

B.             Credit Card Charges

            Livingston also argues that she owes only $10,744.11 of the $12,543.92 charged to the Dillon Group’s credit card.  She asserts, “[t]he remaining amount of $1,799.81 was used to buy products for the business.”  Again, Livingston fails to establish the nature and amount of the claimed business expenses.  The district court was not persuaded by Livingston’s arguments.  But the record establishes that restitution for the credit card charges was not ordered because the Dillon Group indicated that it would not contest an award of restitution in the amount of $59,259.52.  Although the district court found that Livingston owes more than that amount, it ordered Livingston to pay $59,259.52 in restitution, which did not include the unauthorized credit card charges. 

            Livingston challenges the Dillon Group’s request for restitution of $3,362.52, for online transfer payments on the credit card transactions.  The district court did not find this request for restitution valid, stating “[t]he Dillon Group submitted documentation for an additional $8,811.25 of restitution (in addition to the $59,259.52 mentioned above).  Of that the court finds that all but $3,362.52 are valid claims.” (Emphasis added).  Because the record establishes that this amount was not included in the restitution order, this aspect of Livingston’s challenge on appeal is without merit.

C.            Pawned Items


Livingston next argues that the total restitution amount should be reduced by $2,700 to account for the reimbursement the Dillon Group received when it sold some of the unauthorized purchases to a pawnshop.  Because the district court’s restitution order reflects an amount that is at least $10,000 less than necessary to restore the victim to its condition prior to the crime, any error arising from inclusion of this disputed amount is harmless.  See State v. O’Brien, 459 N.W.2d 131, 134 (Minn. App. 1990) (strict accounting of costs and benefits not required when setting restitution).  Livingston also contends that she should not be responsible for the delivery charge because the Dillon Group “opted for the convenience of a pawn shop instead of attempting to get a better price for these expensive items[.]”  Whether a particular item fits within the statutory definition of restitution is subject to de novo review.  State v. Esler, 553 N.W.2d 61, 63 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).

Livingston used the Dillon Group’s credit card to purchase a refrigerator, a washer and dryer, and a computer.  The Dillon Group requested restitution of $300 for a “charge for pick up, delivery and installation.”  These expenses were a direct result of Livingston’s crime, and the Dillon Group’s mitigation of its loss by selling these items to a pawnshop was reasonable.  But for Livingston’s commission of the offenses, the Dillon Group would not have an expense for pick up, delivery, and installation to dispose of these unauthorized purchases.  “A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime . . . .”  Minn. Stat. § 611A.04, subd. 1(a).  The district court properly offset the amount the Dillon Group received for the pawned items by the out-of-pocket losses incurred as a result of the crime. 

D.            Monetary Setoff for Returned Items


In her affidavit, Livingston claimed that the Dillon Group received six items of significant monetary value that should count against the restitution ordered.[1]  The Dillon Group responded that the printer was unusable, the CD player did not work, the video camera was donated to a school, and the Olympus camera was broken.  Without claiming that she returned the equipment in working order, Livingston asserts that the Dillon Group provided no proof that the equipment was damaged.  We will not disturb the district court’s credibility determinations.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  Moreover, a district court is not required to perform a strict accounting of costs and benefits when setting restitution.  See O’Brien, 459 N.W.2d at 134 (affirming restitution order for wedding costs and disallowing claimed setoff for value of wedding gifts).  Here, because the Dillon Group agreed to accept a lower restitution award than the district court found that Livingston owed, we will not disturb the restitution amount awarded.  Accordingly, we conclude that the district court did not abuse its discretion in including these items in the restitution order. 

2.         El-Hy-Mec


A.            Office Products


Livingston next argues that she does not owe El-Hy-Mec restitution.  Livingston acknowledges receiving three checks totaling $2,583.38 to pay for office supplies.  Livingston acknowledges keeping the money.  But she argues that, because she ordered the supplies and El-Hy-Mec kept them, she does not owe any money unless the company demonstrates that it paid the bill.  The district court found Livingston’s claims unpersuasive.  Indeed, El-Hy-Mec is not seeking reimbursement for the office supplies.  They seek reimbursement for the money Livingston kept when she agreed to pay for the office supplies.  The district court did not abuse its discretion in ordering Livingston to pay El-Hy-Mec $2,583.38 in restitution for her unauthorized receipt and use of the funds. 

B.            VISA Purchases

Livingston also argues that the district court erroneously included $613.25 owed to VISA for unauthorized purchases of jewelry and tattoos.  Livingston admits making the unauthorized purchases.  But she contends that the state failed to prove that El-Hy-Mec incurred a reimbursable loss.  As discussed above, an offender maintains the burden of pleading specific reasons justifying a restitution amount different from the amount requested.  Minn. Stat. § 611A.045, subd. 3(a).  Therefore, Livingston’s burden, at a minimum, is to allege through her pleadings that El-Hy-Mec did not pay the bill.  It would then be incumbent on the state to prove by a preponderance of the evidence that the bill had been paid.  The state’s burden, however, is triggered only after Livingston asserts nonpayment of the bill that El-Hy-Mec submitted as an out-of-pocket loss for restitution.  We note the possibility that VISA forgave this debt obligation.  But where El-Hy-Mec claims the VISA purchase as an out-of-pocket loss, Livingston is required to plead her claim with more than a bald assertion of the possibility that this debt was forgiven.

B.            Other Items


Livingston also argues that El-Hy-Mec unjustly seeks reimbursement for $6.75 for a shipping charge, $10.62 for reimbursing Livingston from petty cash, $106.50 for overpayment of salary, and $115 for computer items taken from the office.  She asserts that these expenses “may or may not be legitimate.”  Livingston’s arguments, however, were not raised before the district court.  We, therefore, decline to address them for the first time on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (noting that appellate courts do not generally decide issues that were not raised before the district court).

3.            SMMA Company

Livingston also contends that SMMA suffered no financial loss because it failed to respond to her claim that a 35 mm camera was in police custody and would be given to the company upon request.  The district court concluded, “[i]f the police return [the camera] to SMMA the restitution amount should be reduced by $356.79.”  This aspect of the restitution ordered was not an abuse of discretion.  We find no basis for obliging a crime victim to accept property that was purchased without its authorization.  The district court’s order properly provides for a reduction in appellant’s restitution obligation in the event SMMA elects to accept the property.

            Livingston also argued that she should not have to pay $379.57 for a digital camera and adaptor because they are in SMMA’s possession.  The district court rejected appellant’s contention.  SMMA provided proof that it paid $379.57 for the camera and adaptor and that it was an unauthorized purchase.  There is no showing by Livingston that these items had any value to SMMA.  Accordingly, this determination was well within the district court’s discretion.


[1]   These items were identified as a Sony 8 mm video camera, a Hewlett-Packard printer, a Sony Multi-disc CD player, a Hewlett-Packard scanner, a laminating machine, and an Olympus 35 mm camera.