                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1334

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                    Joseph Victor Pierce,
                                         Appellant.

                                    Filed June 13, 2016
                                         Affirmed
                                        Kirk, Judge

                                Martin County District Court
                                  File No. 46-CR-15-331

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Terry W. Viesselman, Martin County Attorney, Fairmont, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

KIRK, Judge

         Appellant challenges the district court’s restitution order, arguing that the state

failed to meet its burden in proving that the victims’ losses were directly caused by
appellant’s conduct and that the court did not consider his income, resources, and

obligations before ordering restitution. We affirm.

                                     DECISION

       We review the district court’s decision for an abuse of discretion. State v. Nelson,

796 N.W.2d 343, 346 (Minn. App. 2011). Crime victims are entitled to restitution for

losses they incur from the crime. Minn. Stat. § 611A.04, subd. 1(a) (2014). An offender

may challenge the restitution amount by producing a “detailed sworn affidavit” under

Minn. Stat. § 611A.045, subd. 3(a) (2014), setting forth all challenges to restitution. After

the offender properly challenges the restitution order, the state bears the burden of proving

the amount and appropriateness of the restitution by a preponderance of the evidence. Id.;

State v. Thole, 614 N.W.2d 231, 235 (Minn. App. 2010).

       After pleading guilty to third-degree burglary, appellant Joseph Victor Pierce

challenged the victims’ requested restitution amount and items. After a hearing, the district

court ordered restitution in the amount of $268.59 for the losses claimed by the victims.

On appeal, Pierce argues that the state failed to prove that the claimed losses were directly

attributable to his conduct and that the district court failed to consider his income,

resources, and obligations before ordering restitution.

       The record demonstrates that Pierce’s counsel filed a “restitution motion”

challenging the claimed losses, which satisfies Minn. Stat. § 611A.045, subd. 3(b) (2014),

but the record does not include the required sworn affidavit from Pierce. “[T]he affidavit

is both the sole vehicle by which the offender can meet the burden of pleading, and an

essential element of the offender’s case required to meet the burden of production.” Thole,


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614 N.W.2d at 235. Because Pierce failed to follow the statutorily prescribed procedure,

we conclude that Pierce’s objections are not properly before us. Id.

       However, assuming arguendo, that Pierce met his pleading requirement, he did not

produce evidence to support his challenge. Minn. Stat. § 611A.045, subd. 3(a). The only

evidence to support Pierce’s challenge to restitution was his testimony where he claimed

that he did not take the missing items. But the district court found that Pierce did not

dispute burglarizing the tool shop and that he testified to being very intoxicated during the

burglaries. Pierce’s testimony fails to satisfy his burden of production and to establish a

valid dispute over the restitution order. Hence, the district court did not abuse its discretion

in determining that the state proved the claimed losses through the victims’ testimony at

the restitution hearing about the claimed missing items and their respective monetary

values. “We defer to the district court’s credibility determination in resolving conflicting

testimony.” State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn.

Nov. 18, 2003).

       The district court also implicitly found that Pierce could pay restitution, based on

his reported income stated in the presentencing investigation report. See Minn. Stat.

§ 611A.045, subd. 1(a)(2) (2014) (requiring the district court to account for an offender’s

ability to pay when ordering restitution); Nelson, 796 N.W.2d at 349 (noting that a

presentence investigation report constitutes evidence establishing an offender’s ability to

pay restitution). Finally, Pierce argues in a pro se supplementary brief that the state failed

to honor the plea agreement regarding the length of his sentence, that his attorney provided

ineffective assistance, and that he did not violate his probation. These issues were outside


                                               3
the scope of the restitution hearing and are deemed waived on appeal. Thiele v. Stich, 425

N.W.2d 580, 582-83 (Minn. 1988).

      Affirmed.




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