This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-98-442

State of Minnesota,

Respondent,

vs.

Jennifer D. Wagner n/k/a Jennifer D. Souster, et al.,

Appellants.

Filed July 7, 1998

Affirmed

Schumacher, Judge

Isanti County District Court

File No. K695292

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jeffrey R. Edblad, Isanti County Attorney, G. Paul Beaumaster, Assistant County Attorney, 221 Southwest Second Avenue, Cambridge, MN 55008 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellants)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

In this welfare fraud case, appellants Jennifer and Benjamin Souster contend the trial court abused its discretion when it failed to offset the amount of restitution they owed by the amount of welfare benefits they would have been entitled to receive during the period in question. We affirm.

FACTS

The Sousters own and operate a petting zoo on their property. They pleaded guilty[1] to wrongfully obtaining AFDC and food stamps for nearly two years and agreed to pay restitution as part of their plea agreements.

Jennifer Souster admitted in her plea agreement that she had failed to report the groceries and other necessities she received as "payments in kind" from her job at the petting zoo. Similarly, Benjamin Souster admitted that the income he paid Jennifer Souster was not reported.

During Benjamin Souster's trial, an Isanti County financial assistant and welfare fraud investigator testified that the Sousters had not been eligible for welfare benefits during the time in question, based on all available information regarding the Sousters' incomes and business expenses.

Based on the guilty pleas, the trial court ordered Jennifer Souster to pay $19,338 and Benjamin Souster to pay $9,366 in restitution. When the Sousters contested those amounts, the court held a joint restitution hearing. The Sousters attempted to show their business expenses exceeded their income from the zoo, in order to show that they still would have been entitled to receive AFDC benefits, despite the fact that they were self-employed. The state also presented evidence regarding the Sousters' ineligibility for benefits. The trial court reduced Jennifer Souster's restitution order to $14,870, but affirmed its order of $9,366 against Benjamin Souster. The Sousters appeal.

D E C I S I O N

The trial court has broad discretion to order reasonable restitution, but must have a factual basis in the record for the award. State v. Harvey, 547 N.W.2d 706, 708 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). When determining whether to order restitution, and in what amount, the court must consider (1) the amount of economic loss the victim sustained, and (2) the income, resources, and obligations of the defendant. Minn. Stat. 611A.045, subd. 1 (1996), quoted in Harvey, 547 N.W.2d at 708. If the court seeks to compensate for loss through restitution, then it should base the amount on the victim's loss. State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984).

The statute governing welfare fraud allows the state or county to recover the amount of the assistance incorrectly paid. Minn. Stat. 256.98, subd. 4 (1996). Here, that amount is the difference between the amount of the assistance the Sousters actually received on the basis of misrepresented or concealed facts and the amount to which they would have been entitled had they not concealed or misrepresented their data.

At the joint restitution hearing, the Sousters argued that they deserved an offset against restitution based on the amount of AFDC benefits for which they would have been eligible. The state presented testimony of the welfare fraud investigator and the county financial assistant specialist, who evaluated evidence regarding the Sousters' incomes and financial records and determined they were ineligible for AFDC benefits. The record revealed that Jennifer Souster had received benefits under the absent parent provision, even though her husband had been present in the household. Furthermore, records showed the Sousters had sufficient income over the eligibility standard so as not to qualify for benefits. Other than incomplete business records, the Sousters did not present any other evidence to support their claim for benefits. Based on this evidence, we find no abuse of discretion in the trial court's order for restitution.

Affirmed.

[ ]1 Jennifer Souster pleaded guilty at the outset; Benjamin Souster pleaded guilty mid-trial.