This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1901

A05-401

 

State of Minnesota,

Respondent,

 

vs.

 

Robyn Colleen McDaniels,

Appellant.

 

Filed January 3, 2006

Affirmed in part, reversed in part, and remanded; motion to strike granted

Shumaker, Judge

 

Becker County District Court

File No. K7-03-1203

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Tiernee M. Murphy, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Joseph Evans, Becker County Attorney, P.O. Box 476, Detroit Lakes, MN 56502 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Melissa V. Sheridan, Assistant Public Defenders, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            In these consolidated appeals from convictions of harassment by telephone and e-mail and violation of a harassment restraining order, appellant contends that Minnesota does not have jurisdiction over this dispute, that Becker County is not the proper venue, that her defense counsel was ineffective, that she was denied her constitutional right to confrontation, that her consecutive sentences were erroneously imposed, and that the district court abused its discretion by ordering her to pay restitution.  Because we find no reversible error, we affirm the convictions and the restitution order.  But because the district court erred in sentencing, we reverse the sentences and remand for resentencing. 

FACTS

Appellant Robyn Colleen McDaniel and K.S. were married in 1981 and divorced 11 years later; they have one child together, O.L.S.  K.S. obtained sole physical custody of O.L.S. and now lives in Maricopa County, Arizona, with his new wife, L.S., their three children, and O.L.S. 

In 2002, the Maricopa County District Court issued an injunction against McDaniels after K.S. and L.S. reported that McDaniels had made harassing telephone calls and sent harassing letters and e-mails to them.  The injunction was renewed in March 2003. 

Around the end of July 2003, K.S. and L.S. again began receiving harassing telephone calls and e-mails from McDaniels.  Over the course of two months, McDaniels made over 300 telephone calls to K.S. and L.S.’s home.  She regularly called in the early-morning hours, around 2:00 or 3:00 a.m., and on at least one occasion she made 40 phone calls in one day.  Sometimes McDaniels requested to speak with O.L.S., but at other times McDaniels threatened K.S. with violence or made inappropriate remarks that L.S. was a prostitute or that O.L.S. sold crystal meth. 

The e-mail messages were similar.  There were e-mails depicting guns, and e-mails with references to “Osama” and “Saddam” and to “spending eternity” watching children being tortured.  One message, which was sent to the Becker County Attorney’s Office, FBIjobs.com, The New York Times, and various other e-mail addresses, stated that O.L.S. was “severely being abused” by K.S. and L.S., and listed their address and telephone number.  Another message, sent to the Becker County Attorney’s Office, a law firm, The New York Times, and various other individuals, had an attachment of a nude photo of K.S. taken some years prior. 

            K.S. and L.S. contacted the Maricopa County Police Department in Arizona and the Becker County Sheriff’s Department in Minnesota.  Becker County Sheriff Scott Blaine interviewed McDaniels in Becker County, and she admitted to making a “million zillion” telephone calls and e-mails to K.S. and L.S.  McDaniels told Blaine that she was living with Kevin Johnson in Becker County and that she used his cell phone to make the calls. 

The State of Minnesota filed a criminal complaint against McDaniels charging her with harassment by electronic mail, a felony offense, in violation of Minn. Stat. § 609.749, subds. 2(6), 4(a) (2002); harassment by telephone in violation of Minn. Stat. § 609.749, subds. 2(4), 4(a) (2002); and violation of a harassment restraining order in violation of Minn. Stat. § 609.748, subd. 6(a)-(c) (2002).  A jury found McDaniels guilty on all counts.  The district court imposed and stayed execution of sentences as follows: one year and one day for harassment by electronic mail, a consecutive 15-month sentence for harassment by telephone, and a consecutive one-year sentence for violation of a harassment order.  McDaniels was also ordered to pay restitution for out-of-pocket expenses K.S. and L.S. incurred as a result of her conduct.  She now appeals the convictions, the sentences, and the restitution order. 

D E C I S I ON

1.         Sufficiency of the Evidence for Jurisdiction and Venue

 

            McDaniels claims that the evidence is insufficient to show that Minnesota has jurisdiction over this dispute and that Becker County is not the appropriate venue for trial.  In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

            a.         Jurisdiction

            McDaniels first argues that Minnesota does not have jurisdiction over the violation of a harassment restraining order because the order was issued in Maricopa County, Arizona, and the state failed to show that the proscribed acts occurred in Minnesota.  “Jurisdiction refers to the court’s power to hear and decide the dispute.”  State v. Eibensteiner, 690 N.W.2d 140, 149 (Minn. App. 2004) (citing United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002)). 

Under Minnesota law, exercise of jurisdiction is proper when “some element of the offense was committed within the territorial boundaries of the state.”  Id. at 149; see Minn. Stat. § 609.025(1) (2002) (providing that “a person may be convicted and sentenced under the laws of this state if the person [c]ommits an offense in whole or in part within this state”). 

            McDaniels does not deny that she made the telephone calls and sent the e-mails in question.  She argues that the evidence fails to show that her conduct took place in Minnesota.  Yet, there was sufficient direct and circumstantial evidence to show that McDaniels was in Minnesota when she engaged in harassing conduct.  K.S. testified that McDaniels said she was calling him from Inga Hanson’s gravesite, which is located in Becker County, Minnesota.  Kevin Johnson testified that McDaniels was living with him during the summer of 2003, in Becker County, Minnesota, and that McDaniels had called K.S. and L.S. from both his home telephone and his cell phone.  He testified that, in her telephone messages, McDaniels indicated that she was spending time at the nearby DeRoxe Club, which was located in Becker County, Minnesota.  There is no evidence in the record to indicate that McDaniels engaged in harassing conduct anywhere other than in Becker County, Minnesota

Additionally, Minnesota has jurisdiction based on the full-faith-and-credit concept.  Under the Violence Against Women Act, states are required to give full faith and credit to protective orders issued in other states and to enforce the order as if it were issued in its own territory.  18 U.S.C. § 2265(a) (2000) (stating “[a]ny protection order issued that is consistent with subsection (b) of this section by the court of one State . . .  shall be accorded full faith and credit by the court of another State . . .  and enforced as if it were the order of the enforcing State”).  A protection order is defined as “any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person . . . .”  18 U.S.C. § 2266(5) (2000 & Supp. 2005) (emphasis added).  The only requirements under the Violence Against Women Act is that the order be issued by a state that has jurisdiction over the order and that it be issued with reasonable notice and opportunity to be heard.  18 U.S.C. § 2265(b). 

            The injunction against harassment qualifies as a “protection order,” and it satisfies the due-process requirements under the statute.  The Arizona injunction specifically prohibits McDaniels from engaging in any conduct that “would cause a reasonable person to be seriously alarmed, annoyed or harassed and serves no legitimate purpose.”  This order notified McDaniels of its nationwide validity, and it provided an opportunity for a hearing if she disagreed with the order.  Because McDaniels’s conduct occurred in Minnesota, the full-faith-and-credit clause requires Minnesota to recognize the harassment order.  Thus, Minnesota has jurisdiction over this issue. 

            b.         Venue

McDaniels next argues that because the state failed to prove that the harassing e-mails and telephone calls originated in Becker County, Becker County is not the proper venue for trial.  “[V]enue addresses the convenience and location of trial, not the power to hear and decide the controversy.”  Eibensteiner, 690 N.W.2d at 149) (citing State v. Smith, 421 N.W.2d 315, 320 (Minn. 1988)).   Under Minnesota law, a defendant must be tried in the “county where the offense was committed[,]” which means the county “where any element of the offense was committed.”  Minn. Stat. § 627.01, subds. 1, 2 (2002).  For harassment by telephone and electronic mail, the actor may be prosecuted at the place where any telephone call or e-mail is sent or received.  Minn. Stat. § 609.749, subd. 2(6)(b) (2002). 

An accused waives her right to object to venue if an objection is not asserted prior to trial.  Minn. R. Crim. P. 24.01, cmt..  Yet, such failure to object does not relieve the state of the burden to prove venue.  State v. Franklin, 692 N.W.2d 82, 84 (Minn. App. 2005).  The purpose of requiring proper venue is to “protect[] a defendant from the unfairness and hardship that may occur when an accused is prosecuted in a remote place.”  Eibensteiner, 690 N.W.2d at 149 (quoting State v. Blooflat, 524 N.W.2d 482, 483-84 (Minn. App. 1994)). 

Proper venue may be proven by circumstantial or direct evidence.  State v. Larsen, 442 N.W.2d 840, 842 (Minn. App. 1989).  Through circumstantial and direct evidence, the state proved that Becker County is the proper venue.  As discussed above, the evidence indicates that McDaniels was in Becker County when she harassed K.S. and L.S.  During the summer of 2003, the time in which she made the harassing telephone calls, she was either living with Johnson or staying at the DeRoxe Club in Becker County; she copied the Becker County Attorney’s Office on some of the harassing e-mails; and she made a telephone call from Inga Hanson’s gravesite, also located in Becker County

During oral argument, McDaniels asserted that the state failed to prove that the specific e-mails and telephone contacts that were harassing originated from Becker County.  McDaniels particularly noted that Johnson never testified to the content of the telephone calls he had heard.  Nonetheless, given the totality of the voluminous telephone calls and e-mails, and given the fact that some e-mails copied the Becker County Attorney’s Office, we conclude that the evidence supports a reasonable inference that harassing calls and e-mails originated in Becker County, and, thus, venue is proper there. 

In addition, the purpose of requiring proper venue was served.  McDaniels faced less hardship by being tried in Becker County, where she resided, than by being tried in Arizona, where the victims reside. 

2.         Ineffective Assistance of Counsel

            McDaniels asserts that her counsel was ineffective for two reasons: (1) his failure to make a record of her waiver to testify fell below an objective standard of reasonableness, and (2) the failure to make such a record was prejudicial. 

            Generally, an ineffective-assistance-of-counsel claim should be raised in a postconviction hearing rather than on direct appeal because “[a] postconviction hearing provides the court with additional facts to explain the attorney’s decisions, so as to properly consider whether a defense counsel’s performance was deficient.”  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (quotation omitted).  Yet, appellate courts may consider ineffective-assistance claims on direct appeal where the record is sufficient to determine the issue without additional factual findings.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001), rehearing denied (Minn. July 20, 2001). 

            To prevail on this claim, the defendant must affirmatively prove hat his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064 (1984)).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  A strong presumption exists that counsel’s performance “falls within the wide range of reasonable professional assistance.”  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).

            a.         Right to Testify

            McDaniels asserts that her counsel’s representation fell below a reasonable standard because counsel did not make a record regarding her right to testify, and, therefore, she could not have knowing or voluntarily waived this right.  “The defendant’s right to testify in his or her own defense is protected by both the [Fourteenth] Amendment Due Process Clause of the Federal Constitution and Minnesota state law.”  State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998).  The waiver of the right to testify must be voluntary and knowing.  State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997).  It is common for a district court to confirm on the record that the defendant knowingly and voluntarily waives his right to testify, but such colloquy is not required.  In re Welfare of M.P.Y., 630 N.W.2d 411, 416 (Minn. 2001).  When the record is silent as to the waiver of the right to testify, the reviewing court “must presume that the decision not to testify was made by the defendant voluntarily and intelligently.”  State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980). 

            McDaniels does not argue that her attorney failed to advise her of the right to testify.  Rather, she contends only that the record is silent with respect to whether she (1) wanted to testify, (2) waived her right, or (3) knew she had the right to testify.  The silent record does not show that her attorney’s conduct fell below an objective standard of reasonableness, nor does it show that because of her counsel’s conduct the verdicts were affected.  Therefore, we apply the rebuttable presumption that McDaniels voluntarily and knowingly waived her right to testify. 

            b.         Prejudice

            McDaniels contends that the failure to make a record regarding her right to testify was prejudicial.  McDaniels seems to argue that because the district court prohibited her witnesses from testifying about her motives for calling K.S. and L.S., McDaniels, without taking the stand herself, could not explain her conduct.  Yet, this argument relates to the district court’s ruling on admissibility of testimony; it does not show how the failure to record her waiver prejudiced her right to a fair trial.   

            Neither the record nor McDaniels’s arguments shows how her counsel’s conduct fell below reasonable standards or how she was prejudiced by not having a record of her waiver if her right to testify. 

3.         Right to Confrontation

            McDaniels argues that the district court denied her constitutional right of confrontation when it removed her from the courtroom.  The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to be present at all stages of his or her trial.  U.S. Const. amend. VI; State v. Gillam, 629 N.W.2d 440, 450-51 (Minn. 2001).  A defendant, however, can forfeit his or her right to be present by engaging in conduct that interrupts the procedure of the court.  Illinois v. Allen, 397 U.S. 337, 343-44, 90 S. Ct. 1057, 1060-61 (1970).  The Minnesota Rules of Criminal Procedure specifically provide that a defendant may waive the right to be present if he or she “after warning engages in conduct which is such as to justify being excluded from the courtroom because it tends to interrupt the orderly procedure of the court and the due course of the trial.”  Minn. R. Crim. P. 26.03, subd. 1(2). 

            The district court has broad discretion in dealing with “disruptive, contumacious, stubbornly defiant defendants.”  State v. Richards, 495 N.W.2d 187, 197 (Minn. 1992).  The decision to proceed with trial in absentia is reviewed under an abuse-of-discretion standard, and the court’s factual findings will not be disturbed unless clearly erroneous.  State v. Cassidy, 567 N.W.2d 707, 709-10 (Minn. 1997). 

            McDaniels began crying during the prosecutor’s rebuttal argument, making it difficult for the prosecutor to continue because jurors kept looking around the prosecutor to see McDaniels.  Out of the presence of the jury, the judge warned McDaniels that her behavior was disruptive to the court and that the court had the authority to exclude her from the proceedings. 

At first McDaniels indicated that she would try to be quiet, but then she told the court that she could not stop crying.  Upon the defense counsel’s request, the judge ordered McDaniels to be moved to a location where she could continue to watch the proceedings, but she could not be heard or seen by the jury.  When the jury returned, the judge explained that McDaniels was not able to be present at this time, but that the proceedings would continue. 

            McDaniels asserts that there is nothing on the record to show she was crying so loudly as to disrupt the trial.  But the prosecutor stated on the record that her crying was distracting the jurors from his closing argument, and the judge indicated the same.  After being warned, McDaniels insisted that she could not stop her behavior.  This court will not disturb the district court’s findings unless they are clearly erroneous.  See Cassidy, 567 N.W.2d at 709-10.  Therefore, we conclude that the district court did not abuse its discretion by removing her from the proceedings. 

4.         Sentencing

            a.         Consecutive Sentences       

McDaniels argues, and the state concedes, that the district court improperly imposed consecutive sentences on the harassment by e-mail and harassment by telephone charges.  We agree. 

Consecutive sentences are either presumptive, or permissive, or imposed as a departure from presumptive concurrent sentencing.  Minn. Sent. Guidelines. II.F.  Presumptive consecutive sentences apply when the defendant commits a crime while “serving, or on supervised release, conditional release, or on escape status from an executed prison sentence.”  Id. McDaniels had no prior felony convictions at the time of the offenses, so this provision does not apply.  Permissive consecutive sentences are appropriate only in certain circumstances, which do not apply here.  See id.

Because McDaniels’s sentences for harassment by e-mail and harassment by telephone should have been concurrent, sentencing McDaniels to consecutive sentences constituted a departure for which written findings were required.  Minn. Stat. § 244.10, subd. 2 (2002); Minn. Sent. Guidelines. II.F.  The written-findings requirement may be satisfied if the district court makes oral findings on the record.  State v. Martinson, 671 N.W.2d 887, 893 (Minn. App. 2003). 

            The district court noted at sentencing that McDaniels was “unrepentant.”  But this is not a factor identified in the guidelines as one that would permit consecutive sentences.  Therefore, we remand for resentencing of McDaniels’s telephone and e-mail harassment convictions.[1]

            b.         Separate Sentence for Violating Harassment Order

            McDaniels argues that the district court improperly imposed a separate sentence for her conviction of violating the harassment restraining order.  Her position is that she was already punished for violating this order when she was sentenced for harassment by e-mail and telephone.  We agree.

Minn. Stat. § 609.035, subd. 1 (2002), prohibits serialized prosecutions and multiple punishments.  A defendant who commits multiple offenses against the same victim during a single behavioral incident may be sentenced for only one of those offenses.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). 

On established facts, whether offenses are part of a single behavioral incident presents a question of law, which this court reviews de novo.  State v. Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001).  The factors for determining whether criminal conduct constitutes a “single behavioral incident” are unity of time and place and whether the offenses were motivated by a desire to obtain one criminal objective.  Bookwalter, 541 N.W.2d at 294.  The test is not applied mechanically; rather, courts look to the totality of the circumstances.  State v. Richardson, 633 N.W.2d 879, 888 (Minn. App. 2001).  Because McDaniels’s conduct satisfies the test for a single behavioral incident, the district court improperly sentenced her for both harassment and violating the harassment restraining order.

            c.         Unity of Time and Place

            McDaniels’s conduct occurred from July 23, 2003, through September 4, 2003.  During that period, there were 345 telephone calls and 14 e-mails, the majority of which were initiated by McDaniels.  The determination of whether there is unity of time rests on whether the conduct was continuous throughout.  Compare State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (indicating that a pattern of harassment beginning in the summer of 1996 and ending in June of 1997 was deemed a single time period), with Richardson, 633 N.W.2d at 888-89 (concluding that there was no unity of time when the conduct was broken and sporadic over a period of four years); but see State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997) (stating that a pattern of conduct occurring over a span from February 13 until April 15 could not be a single incident).  Because McDaniels’s behavior was continuous throughout the two months, there is sufficient unity of time.

With respect to the unity of place, the telephone calls and e-mails were received at K.S. and L.S.’s residence in Maricopa County, Arizona.  Relying on Richardson, in which the court held that there was a lack of unity of place where the victims received threats at different locations, the state argues that the contacts lack unity of place because the contacts were directed to three separate places: K.S. and L.S.’s home telephone; their business telephone, which is located in their home; and to K.S. and L.S.’s e-mail.  See  633 N.W.2d at 889.  But in Richardson there were multiple victims, each of whom received harassing letters at their separate residences and at the county’s social services office.  Id.  Here, by contrast, all the victims reside at the same residence and all the contacts were received at their home. 

Because the distinction between harassment on the home telephone line, the home office line, and via e-mail is too attenuated to reasonably be construed to be separate places, we find that there is sufficient unity in time and place. 

            d.         Single Criminal Objective

            McDaniels’s intent was to harass K.S. and L.S.  The mere fact that she violated the harassment restraining order by engaging in harassing conduct does not separate her behavior into multiple criminal objectives.  Under the harassment statute, McDaniels simply had to engage in intentional conduct, which she knew would cause K.S. to feel frightened, threatened, oppressed, persecuted, or intimidated.  Minn. Stat. § 609.749, subd. 2(4), (6).  Similarly, to violate her harassment restraining order, she only needed to engage in the above proscribed conduct, knowing that such conduct violated the order.  Minn. Stat. § 609.748, subd. (6)(b) (2002). 

Because McDaniels’s conduct stemmed from a single behavioral incident, and because the imposition of sentences for violation of the harassment order and for harassment itself is prohibited by Minn. Stat. § 609.035, subd. 1, we reverse and remand to the district court for resentencing.

5.         Restitution Order

            McDaniels asserts that the district court abused its discretion by granting restitution, concluding that (1) K.S. estimated his losses, rather than providing specific documentation; and (2) the district court failed to consider McDaniels’s financial situation when determining the amount of restitution. 

            Generally, “trial 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 (Feb. 22, 2000).  The restitution, however, must be related to the criminal conduct.  Id.  Appellate courts review a restitution order for abuse of discretion.  Tenerelli, 598 N.W.2d at 671. 

            McDaniels asserts that K.S.’s affidavit is unreliable because it was supported only by K.S.’s word rather than by documentation.  K.S. submitted an affidavit that outlined various expenses totaling $5,557.82.  He first outlined his lost wages, which he calculated based on a base salary from his 2004 employment.  He then divided his 2004 base salary by 50 work weeks in one year, and divided again by 40 hours per work week to obtain his hourly work value of $29.11 per hour.  His estimate of lost time was 165 hours, which included time spent cataloguing, recording, copying, filing reports, and corresponding with various individuals regarding this issue.  He also requested $70 reimbursement for depression and sleep-disorder medication prescribed to his wife, as well as the counseling expenses that were not reimbursed by insurance.  Finally, K.S. requested reimbursement for his son’s airplane ticket to Minnesota.  K.S. explained that if his son did not accompany him to Minnesota for the trial, he would have had to pay for daycare expenses for those three days.  K.S. provided documentation for his airplane ticket purchase and his 2004 base salary.  The rest of his calculations were supported by his affidavit. 

The restitution statute requires only that the victim submit, through affidavit or other competent evidence, (1) the items of loss, (2) the amount of restitution claimed, and (3) the specific reasons justifying the amount.  Minn. Stat. § 611A.04, subd. 1 (2002).  The offender has the burden to produce evidence if he or she intends to challenge the restitution.  Minn. Stat. § 611A.045, subd. 3(a) (2002).  This burden includes providing a detailed sworn affidavit setting forth the challenges to the restitution or items of restitution, as well as specifying all the reasons justifying a different dollar amount.  Id.  Essentially, the statute imposes a burden of pleading and a burden of production on the challenger.  State v. Thole, 614 N.W.2d 231, 234-35 (Minn. App. 2000).  A valid dispute arises only after a defendant raises a proper challenge to the restitution order, whereupon the state has a burden to show by a preponderance of the evidence the propriety of the restitution.  Id. at 235. 

            The district court determined that McDaniels failed to satisfy her statutory burden.  McDaniels asserted that K.S.’s affidavit was a “speculative . . . vindictive attempt . . . to harm me and seek revenge” and that she “should not be liable for expenses based on mere guesswork.”  McDaniels did not give any explanation or produce evidence to contest the specific figures that K.S. submitted.  The court concluded that she did not provide the requisite specificity to successfully challenge the award of restitution. 

            Even if McDaniels offered a sufficiently specific objection, the challenge would still fail, as the state satisfied its burden.  K.S.’s affidavit provides detailed calculations of lost wages, which were accompanied by verification of his annual salary.  It also calculates his out-of-pocket expenses for the counseling and medical bills that were directly related to the harassment.  The court found that his affidavit was credible.  The caselaw is clear that this court gives broad discretion to the district court’s credibility determinations.  Haefele v. Haefele, 621 N.W.2d 758 (Minn. App. 2001) review denied (Minn. Feb. 21, 2001). 

            Additionally, the court did not fail to consider McDaniels’s financial ability to pay.  In determining whether to order restitution and in what amount, the court must also consider the defendant’s income, resources, and obligations.  Minn. Stat. § 611A.045, subd. 1(a)(2).  Yet, the court has wide flexibility in structuring restitution obligations when taking into account a defendant’s ability to pay.  State v. Maidi, 537 N.W.2d 280, 285-86 (Minn. 1995). 

The district court noted that it was required to consider the “income, resources, and obligations of the defendant” when setting the restitution amount.  K.S. informed the court that McDaniels was more than $12,000 in arrears for child-support payments.  Hence, the court was aware of McDaniels’s financial situation; nothing in the statute or the caselaw precludes ordering restitution for a defendant who is in child-support arrears. 

            Because McDaniels failed to satisfy her burden of production in contesting the order for restitution, and because the district court adequately accounted for McDaniels’s ability to pay, the restitution order is affirmed.

6.         Pro-se Supplemental Brief and Appendix

            The rules of criminal procedure allow appellants to submit pro-se supplemental briefs and appendices.  Minn. R. Crim. P. 28.02, subds. 5(14), (17).  However, the record on appeal “shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.”  Minn. R. Crim. P. 28.02, subd. 8. 

            McDaniels’s supplemental brief consists of numerous e-mails, photographs, letters, and drawings.  Some of these documents were offered as exhibits in the district court, but the majority of the brief was not offered or filed with the court.  In the last few pages of her brief, McDaniels argues that her supplemental brief should be reviewed, concluding that the trial exhibits were edited to benefit the state.  But because the majority of the documents contained in the supplemental brief were not presented to the district court, we review only those documents that were submitted at trial.  We conclude that they do not support McDaniels’s claims for relief and grant respondent’s motion to strike appellant’s pro se supplemental brief and appendix.

            Affirmed in part, reversed in part, and remanded; motion to strike granted.



[1] Given the state’s candid acknowledgment of the district court’s error in sentencing, we do not need to address McDaniels’s second contention that the district court erred by imposing a consecutive sentence using a criminal-history score of four.