O R D E R

A03-908

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

1. Our unpublished opinion in this matter was filed on March 23, 2004.

2. Page nine of the opinion has been amended, to include a discussion of a recent supreme court opinion.

IT IS HEREBY ORDERED:

1. Page nine of the opinion filed on March 23, 2004, is withdrawn.

2. The attached pages nine and ten are substituted.

Dated: April 5, 2004

BY THE COURT

Jill Flaskamp Halbrooks

Opinion Judge

that the Larsons are not Krista’s “next of kin,” and therefore not “victims” entitled to restitution under Minn. Stat. § 611A.01(b). Because appellant did not make the next-of-kin argument with respect to Karla Larson before the district court, his appeal on this issue is limited to Brian Larson. See Thole, 614 N.W.2d at 235. The district court concluded that “under the unique circumstances of this case,” Brian should be considered a “victim” for the purposes of the statute. But the supreme court has recently held that “next of kin,” as the term is used in the restitution statute, should be defined as “the nearest living blood relation,” State v. Jones, ___ N.W.2d ___ , 2004 WL 439927, at *20 (Minn. Mar. 11, 2004), and that “in a murder case the ‘victim[s]’ eligible to receive restitution include either the murder victim’s surviving spouse or her nearest living blood relation.” Id. Because Krista’s “children are still living and they are in the class of persons who are her nearest living blood relatives who would qualify for restitution as her next of kin,” id., the district court erred in concluding that Brian Larson was Krista’s next-of-kin entitled to restitution. However, the record does not indicate, and appellant does not argue, that any of the losses jointly claimed by Brian and Karla Larson were specifically or solely attributable to Brian or that Karla would have avoided any of the claimed expenses were she and Brian not married. Because appellant has waived his challenge to the restitution awarded Karla, we therefore conclude that the restitution awarded to the couple was proper.

In light of the supreme court’s decision in Jones, we also observe that because appellant did not challenge Krista’s parents’s status as her next-of-kin entitled to restitution before the district court, he has waived that issue on appeal. See Thole, 614 N.W.2d at 235.

Finally, appellant argues that the district court erred by not considering his ability to pay when ordering restitution. Appellant contends that the district court’s statement in its order that appellant did not “place [his income, resources, and obligations] into evidence” is “simply wrong” and that his dire financial situation was “well known” to the court. The affidavit appellant submitted with his memorandum objecting to the various claims for restitution contains no financial information or other evidence indicating his inability to pay restitution. See Minn. Stat. § 611A.045, subd. 3 (stating offender’s burdens with respect to restitution). The district court correctly concluded that there was no evidence before it concerning appellant’s ability to pay restitution.

Affirmed as modified.