957 N.W.2d 111
Minn. Ct. App.
2021

State of Minnesota, Respondent, vs. Cordale Irby, Appellant.

A20-0375

STATE OF MINNESOTA IN COURT OF APPEALS

Filed March 8, 2021

Smith, Tracy M., Judge

Ramsey County District Court File No. 62-CR-18-783

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Smith, Tracy M., Judge.

SYLLABUS

To convict a defendant for wrongfully obtaining public assistance under Minn. Stat. § 256.98, subd. 1(1) (2012), the state is not required to prove beyond a reasonable doubt that the defendant had the intent to defeat the purposes of all of the public-assistance statutes listed in section 256.98, subdivision 1.

OPINION

SMITH, TRACY M., Judge

In this direct appeal, appellant Cordale Irby challenges his conviction for wrongfully obtaining public assistance and his sentence. As to his conviction, Irby argues, first, that his conviction must be reversed because respondent State of Minnesota did not prove that he acted “with intent to defeat the purposes of” all the public-assistance statutes listed under the wrongfully-obtaining-public-assistance statute. He argues, second, that he is entitled to a new trial because the district court erred by not instructing the jury that the state was required to prove both that Irby acted with the intent to defeat the purposes of any of the public-assistance statutes and that Irby knew that he received public assistance to which he was not entitled. As to his sentence, Irby challenges the restitution award. We affirm.

FACTS

The state charged Irby with wrongfully obtaining public assistance in violation of Minn. Stat. § 256.98, subd. 1(1).1 A two-day jury trial established the following facts.

Applications for Benefits

Before moving to Ramsey County sometime in 2012, Irby was receiving public-assistance benefits in Hennepin County. Once he moved to Ramsey County, his public-assistance case was transferred to a financial-assistance supervisor for the Ramsey County Community Health Services Division on behalf of the Minnesota Department of Human Services (DHS).

At trial, the supervisor testified that Irby submitted a household-report form in connection with his initial aрplication to obtain DHS benefits from Ramsey County. Irby checked “no” on the form in response to the question whether he had any assets such as cash, savings accounts, checking accounts, or motor vehicles. Irby likewise checked “no” to the question whether he had any unearned income, such as “tax refunds, gifts, loans, contract for deed income . . . [and] lottery winnings.” Had Irby checked “yes” for any of these items, Ramsey County would have required “further verification” before granting benefits.

Irby also submitted an authorization-for-shelter-expenses form. On this form, Irby indicated that he paid $400 in monthly rent to the company Home Sweet Home, LLC, while living on Edmund Avеnue. The property‘s owner, agent, or landlord was required to verify the information in the form. Irby‘s form was signed by a “Tom Bates” from “Home Sweet Home, LLC.” Based on the information in these forms, Irby was approved to continue to receive public benefits.

After this initial application, Irby was required to submit annual recertification forms to determine his continued eligibility for public benefits. He also had an ongoing obligation to report to DHS changes in his circumstances.

In May 2013, Irby submitted forms and was interviewed by the financial-assistance supervisor for recertification of benefits. In interviewing applicants for recertification, the supervisоr would review each question with the applicant. Irby reported no employment and no income, including from gifts or gambling winnings. He again reported payment of $400 in monthly rent but reported no other housing expenses such as a mortgage or contract-for-deed payment. Irby again reported having no assets, including “cash, bank accounts, savings or checking, any vehicles . . . [or] real estate.” The form stated, “I understand if I give incorrect information . . . I may be prosecuted for fraud.” Irby signed the form. A “Tom Bates” again signed the form indicating monthly rent. Irby continued to receive public assistance.

During annual recertification in 2014, 2015, and 2016, there were no changes to Irby‘s answers on the forms, except for indicating that his monthly rent was raised to $425 in 2014. Irby continued to receive public assistance.

Investigative Results

After being alerted by a state system that Irby had received gambling income, Ramsey County began an investigation. The investigation revealed that Irby had provided false information in his forms to DHS.

Specifically, witness testimony at trial established that, during the relevant time period, Irby had assets in bank accounts that he did not report: $38,290.15 deposited in an account at TCF Bank; $35,862.91 deposited in four banking accounts at Wells Fargo; and a savings account and two certificates of deposit at BMO Harris Bank. The еvidence further established that, as of February 27, 2016, Irby owned 12 cars that he never reported. And it established that, contrary to his filings, Irby had gambling winnings of $18,099 at Grand Casino in 2013; $15,740.10 at Mystic Lake Casino in 2014; $16,342.27 at Mystic Lake in 2015; and $2,358 at Mystic Lake in 2016.

The evidence also established that, contrary to his filings with DHS, Irby never rented the Edmund Avenue home. Rather, he had signed a contract for deed for the property in 2011 with Home Sweet Home, LLC, which was owned by a T.B., who is not “Tom Bates.” Irby signed a second contract for deed in 2014 to extend the original contract. Ultimately, after making payments of $73,506.14 to Home Sweet Home between 2011 and 2015, Irby owned the Edmund Avenue property outright in July 2015 and a warranty deed was filed with the county. T.B. testified that no individual named “Tom Bates“—the signature on Irby‘s shelter verification forms for Ramsey County—worked at Home Sweet Home. T.B. further testified that he did not sign a letter that Irby had submitted in connection with an emergency-assistance request that was purportedly signed by T.B.

Amount of Benefits

At trial, the investigator testified to benefits that Irby had received to which he was not entitled: $22,137.82 in Medical Assistance (MA) between January 2013 and May 2017; one payment in the amount of $322 under the Supplemental Nutrition Assistance Program (SNAP) in June 2016; and $43,198 under the Minnesota Family Investment Program (MFIP) between 2012 and 2017. These benefits totaled $65,657.82.

Irby‘s Testimony

Irby testified in his defense. Irby stated that he was assaulted in 2010 and sufferеd a traumatic brain injury. Irby stated that a personal care assistant (PCA) supplied by the state initially helped him fill out his public-assistance forms. Irby stated the PCA assisted him from 2011 to 2014. Irby “d[id]n‘t think” he went to the casino in 2012. Irby did recall going to the Mystic Lake Casino, but he disputed the amount of winnings and stated that, although he won something, he lost all the money again before leaving the casino.

Irby stated that it was “hard to say” whether his signature was on the assistance application forms because “[he] signed [his] name so many times [in] different ways.” He submitted around $400 dollars to his father “for his [father‘s] rent because that‘s what [his father] told [him] it was.” He stated he was paying rent in “the portion [he] gеt[s] from the county” and that his father paid the remainder. Irby could not recall where the money to make the payments for the home came from. Irby said he was “not sure” if he was paying taxes on the property at the time.

Irby explained that he did not report his BMO Harris certificate of deposit to Ramsey County because it was created for him by the county, so he believed it already had that information. He stated that he did not own the cars identified by the county but rather “loan[ed] [his] family and friends [his] name.” Irby stated, “I think they made up most of the stuff they put on the form, because I don‘t know Tom Bates.” Irby stated that he was only getting a few hundred dollars in аssistance per month and that he did not intend to deceive DHS to receive benefits.

Conviction and Restitution

The jury found Irby guilty and returned a special verdict finding that “the value of the assistance wrongfully obtained [was] more than $35,000.” On December 13, 2019, the district court sentenced Irby to a stayed prison term of one year and one day and five years’ probation. The court also ordered Irby to pay restitution in an amount to be determined by probation within 90 days. The district court informed Irby that he would be notified what that amount was and that, if Irby disagreed with the amount, he would have 30 days to request a hearing with the court.

On March 25, 2020, DHS filed its affidavit and request for restitution in the amount of $74,173. On April 7, the district court filed a restitution order for that amount.

This appeal follows.

ISSUES

I. To obtain a conviction under Minn. Stat. § 256.98, subd. 1, did the state need to prove beyond a reasonable doubt that Irby acted with the specific intent ‍​​​‌‌‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​​‍to defeat the purposes of all of the public-assistance programs listed in the statute?

II. Did the district court commit reversible error in its jury instructions regarding intent and knowledge?

III. Did the district court exceed its authority when awarding restitution?

ANALYSIS

Irby raises three issues on appeal. First, he argues that his conviction must be reversed because the state failed to prove beyond a reasonable doubt that he acted with the intent to defeat the purposes of all of the public-assistance statutes listed in the wrongfully-obtaining-public-assistance statute. Second, he argues that he is entitled to a new trial because the district court erred by not instructing the jury that the state was required to prove both that Irby acted with intent to defeat the purposes of any of the listed public-assistance statutes and that Irby knew that he received assistance to which he was not entitled. Third, Irby argues that the district court exceeded its authority when it ordered restitution. We address each argument in turn.

I. The state did not need to prove that Irby acted with the specific intent to defeat the purposes of all of the listed public-assistance program under Minn. Stat. § 256.98, subd. 1.

Irby was convicted of violating Minn. Stat. § 256.98, subd. 1(1). That statute prohibits wrongfully obtaining public assistance and, as further explained below, lists a number of public-assistance programs that are covered by the statute. Irby contends that the state was required to prove beyond a reasonable doubt that he acted with the intent to defeat the purposes of all of the programs listed, even programs under which he received no assistance.

As the state correctly observes, Irby‘s argument is a sufficiency-of-the-evidence argument that requires us to first interpret the applicable statute. See State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017) (deciding the appellant‘s statutory-interpretation question in order to analyze the sufficiency of the evidence). Statutory interpretation is a question of law that appellate courts review de novo. See State v. Prigge, 907 N.W.2d 635, 638 (Minn. 2018). The goal of statutory interpretation is to ascertain and effectuate the intent of the legislature. Minn. Stat. § 645.16 (2020). Statutory interpretation first requires an analysis of whether a statute is, on its face, ambiguous. Christianson v. Henke, 831 N.W.2d 532, 536 (Minn. 2013). In determining ambiguity, words are given “their plain and ordinary meaning.” Id. (quotation omitted). If a statute is subject to more than one reasonable interpretation, it is ambiguous. State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). If a statute is ambiguous, canons of construction may be applied “to resolve the ambiguity.” Id. Appellate cоurts “construe a statute as a whole and interpret its language to give effect to all of its provisions.” Prigge, 907 N.W.2d at 638 (quotation omitted).

Section 256.98, subdivision 1, provides in relevant part as follows:

A person who commits any of the following acts or omissions with intent to defeat the purposes of sections 145.891 to 145.897, the MFIP program formerly codified in sections 256.031 to 256.0361, the AFDC program formerly codified in sections 256.72 to 256.871, chapters 256B, 256D, 256J, 256K, or 256L, and child care assistance programs, is guilty of theft and shall be sentenced under section 609.52, subdivision 3, clauses (1) to (5):

(1) obtains or attempts to obtain, or aids or abets any person to obtain by means of a willfully false statement or representаtion, by intentional concealment of any material fact, or by impersonation or other fraudulent device, assistance or the continued receipt of assistance, to include child care assistance or vouchers produced according to sections 145.891 to 145.897 and MinnesotaCare services according to sections 256.9365, 256.94, and 256L.01 to 256L.15, to which the person is not entitled or assistance greater than that to which the person is entitled[.]

Minn. Stat. § 256.98, subd. 1.

Irby contends that the only reasonable interpretation of the first paragraph of the quoted subdivision is that the state had to prove that he had the intent to defeat the purposes of all of the public-assistance programs listed—even those that did not apply to him. He advances two reasons for this interpretation, based on the language of the statute: first, the public-assistance statutes listed are joined by the conjunction “and” rather than the disjunctive “or“; and, second, the statute refers to “purposes” in the plural rather than the singular. The state counters that the only reasonable interpretation of the statute is that the person must have intended to defeat the purpose of any one or more of the listed public-assistance statutes but not the purposes of progrаms from which the defendant did not receive assistance. Irby‘s interpretation of the language is not reasonable, the state contends, because common-usage need not be observed when it would be repugnant to the intent underlying the statute to do so. We agree with the state.

When construing a statute, appellate courts “presume that the Legislature did not intend a result that is absurd or unreasonable.” Schatz v. Interfaith Care Ctr., 811 N.W.2d 643, 651 (Minn. 2012). When the plain language of a statute “utterly confounds the clear legislative purpose of the statute,” the statute must be interpreted to avoid such a result. Id. (quotation omitted).

Reading the statutory public-assistance programs as a сonjunctive list would produce an absurd result. Under that reading, even if an assistance-program recipient wrongfully received benefits under one statutory program and did so with the intent to defeat the purpose of that program, the recipient would have to have obtained those benefits with the intent to defeat the various purposes of all of the other listed benefits programs. There could be no sound reason for such a requirement. The unreasonableness of Irby‘s interpretation is especially apparent considering that changes may be made to the listed statutes in section 256.98: for example, under his interpretаtion, a recipient who received SNAP benefits with the intent to defeat the purpose of that program would have to have done so with the intent to also defeat the purpose of the Aid to Families with Dependent Children (AFDC)—a program “formerly codified in sections 256.72 to 256.871,” Minn. Stat. § 256.98, subd. 1, which has since been repealed. See 1997 Minn. Laws ch. 85, art. 1, § 74, at 586 (repealing sections 256.72 to 256.879). If a criminal defendant did not ‍​​​‌‌‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​​‍intend to defeat the purpose of the repealed AFDC program, the state could never obtain a conviction for wrongfully obtaining other public benefits.

Our conclusion is further supported by the Minnesota Supreme Court‘s decision in State v. Ibarra, 355 N.W.2d 125 (Minn. 1984). In that case, the supreme court analyzed the sufficiency of the evidence to convict Ibarra under the 1982 version of the wrongfully-obtaining-public-assistance statute. See generally Ibarra, 355 N.W.2d 125. The relevant phrase in that version says “with intent to defeat the purposes of sections 256.12, 256.72 to 256.872, chapter 256B.” Minn. Stat. § 256.98 (1982). Ibarra was convicted of wrongfully receiving benefits when she received AFDC benefits—benefits that fell under the first two statutory citations in the list (specifically, sections 256.12 and 256.73). Ibarra, 355 N.W.2d at 127. The supreme court makes no reference to Ibarra having received benefits under the third statutory citation in the list—chapter 256B, which addressed medical assistancе. See Minn. Stat. § 256B (1982). Nevertheless, the supreme court concluded that the evidence was sufficient to support Ibarra‘s conviction for wrongfully obtaining public assistance. Ibarra, 355 N.W.2d at 130. The supreme court also explained that the state was not required to prove that the recipient was not entitled to benefits under any or every program. Id. at 131. It is true that the 1982 version of the statute considered in Ibarra did not use the word “and,” but it also did not use the word “or,” and the supreme court‘s analysis supports the reasonable interpretation that the statute applies when a person receives any of the public-assistance benefits listed.

The statute‘s usе of the plural “purposes” does not alter our conclusion. Again, Ibarra is instructive. The 1982 version of section 256.98 under which Ibarra was convicted used the plural “purposes,” yet the evidence was sufficient to convict her of wrongfully obtaining public assistance based only on her receipt of AFDC benefits. Id. at 130.2

In sum, we hold that Minn. Stat. § 256.98, subd. 1, does not require the state to prove beyond a reasonable doubt that a defendant intended to defeat the purposes of all of the public-assistance statutes listed in order to convict the defendant of wrongfully obtaining public assistance.3 Because Irby‘s sufficiency-of-the-evidence challenge rests on his misintеrpretation of the statute, we reject his challenge.4

II. The district court did not commit reversible plain error in its jury instructions.

Irby next argues that he is entitled to a new trial because the district court erred in its jury instructions. He asserts that the district court omitted two mental-state elements: (1) that he acted with the intent to defeat the purposes of any of the public-assistance statutes and (2) that he knew he received public assistance to which he was not entitled. Irby did not object to the relevant portion of the jury instructions at trial.

District courts are given “significant discretion” in crafting jury instructions. State v. Devens, 852 N.W.2d 255, 257 (Minn. 2014). Absent an objection, an appellate court mаy reverse if a jury instruction constituted plain error. State v. Kelley, 855 N.W.2d 269, 273 (Minn. 2014). Irby must first satisfy three requirements under the plain-error standard by showing: (1) an error; (2) that is plain; and (3) that affected his substantial rights. See State v. Woodard, 942 N.W.2d 137, 144 (Minn. 2020). If Irby satisfies this burden, an appellate court “may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Kelley, 855 N.W.2d at 274 (alteration in original) (quotations omitted).

The district court instructed the jury as follows:

Under Minnesota Law, whoever by means of willfully false statement or representation or by intentional concealment of material fact obtains or continues to receive assistance to which the person is not entitled or assistance in an amount greater than that to which that person is entitled, is guilty of a crime.

The elements of wrongfully obtaining public assistance are:

First, the defendant obtained or continues to receive public assistance, medical assistance, SNAP, emergency assistance, and Minnesota Investment Family Program in the form of cash, food and housing is such assistance.

Second, the defendant was not entitled to any assistance at all or received assistance in a greater amount than that to which the defendant was entitled.

Third, the defendant willfully made a false statement or representation as to his income, assets, or bank ‍​​​‌‌‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​​‍accounts, or intentionally concealed a material fact as to his income or assets or bank account.

Fourth, the defendant knew the statement or representation was false or that the fact concealed was material. To know requires only that that actor believes the specified fact exists.

Intent

Irby argues that the district court committed plain error by failing to instruct the jury on Irby‘s “intent to defeat the purposes of any of the listed public assistance statutes.” The state counters that the district court‘s instructions fell within the district court‘s broad discretion and were not plainly erroneous because they comported with language approved by both the Minnesota Supreme Court and the standard criminal jury instruction on wrongfully оbtaining public assistance.

Although the district court did not use the statutory phrase “with intent to defeat the purposes of,” its instructions were not erroneous. The district court instructed the jury that the state was required to prove that Irby “willfully made a false statement or representation as to his income, assets, or bank accounts, or intentionally concealed a material fact as to his income or assets or bank account.” This language comports with the elements of the offense as described by the supreme court in Ibarra. There, the supreme court explained that, to prove a violation of section 256.98, the state was required to prove: (1) that the defendant оbtained assistance; (2) that the defendant was not entitled to the assistance and that she knew this; (3) that she made a false representation and intended thereby to obtain assistance; and (4) the value of the excess assistance was more than $2,500. Ibarra, 355 N.W.2d at 129. The Ibarra court did not identify as a discrete element that the defendant acted “with intent to defeat the purposes” of a public-assistance statute, even though that language appeared in the version of the statute at issue in that case. See id. (analyzing 1982 version of section 256.98). Here, the district court‘s instructions regarding intent were also consistent with the standard jury instruction for wrongfully obtaining public assistance. See CRIMJIG 16.69 (explaining elements of Minn. Stat. § 256.98 as construed by Ibarra). The district court‘s instructions regarding intent were not erroneous.

Knowledge

Irby argues that the district court plainly erred by failing to instruct the jury that the state was required to prove that Irby knew that he was not entitled to public assistance at all or in the amount he was seeking. The state responds that nowhere in Minn. Stat. § 256.98 does it require that defendants know that they were not entitled to the assistance they received. However, the state concedes that both caselaw and the criminal jury instruction guide appear to support Irby‘s argument on the knowledge instruction.

As outlined above, the supreme court in Ibarra identified an element in the offense оf wrongfully obtaining public assistance as follows: “(2) [that the defendant] was not entitled to this assistance at all, or in the amount [the defendant] was seeking, and that [the defendant] knew this.” Ibarra, 355 N.W.2d at 129 (emphasis added). The standard jury instruction guide also contains virtually the same element, with the same “defendant knew” language drawn from Ibarra. See CRIMJIG 16.69. (“Second, (the defendant) was not entitled to any assistance at all, or received assistance in a greater amount than that to which the defendant was entitled, and the defendant knew this.“).

The state argues that there is a knowledge requirement embedded in the wrongfully-obtaining-public-assistance statute and that the district court properly instructed on that requirement in the fоurth element that it outlined—namely, that “the defendant knew the statement or representation was false or that the fact concealed was material. To know requires only that that actor believes the specified fact exists.”

But, in light of the supreme court‘s explanation in Ibarra that an element of the offense is that the defendant received assistance to which the defendant was not entitled and the defendant knew it, we conclude that the district court‘s failure to include that specific knowledge requirement here was error that is plain. See State v. Matthews, 779 N.W.2d 543, 550 (Minn. 2010) (explaining that jury instructions incorrectly stating the law constitute plain error).

Irby next bears the “heavy burden” of establishing that his substаntial rights were affected by the error. See Kelley, 855 N.W.2d at 283. A defendant‘s substantial rights are affected if “there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict.” Id. (quotation omitted). “An erroneous jury instruction will not ordinarily have a significant effect on the jury‘s verdict if there is considerable evidence of the defendant‘s guilt.” Id. at 283-84 (citation omitted). An appellate court analyzes the effect of a jury instruction by evaluating the evidence presented and the nature of the defense. Id. at 284.

The state provided substantial evidence that Irby knew he was not entitled to the public assistance that he received. In determining Irby‘s guilt, the jury was able to rely on his assistance forms reporting zero assets, including his gambling winnings, bank accounts, vehicles, and property; his repeated submission of false information even though the financial-assistance supervisor reviewed the forms with Irby question-by-question; the evidence establishing false signatures regarding Irby‘s housing; and Irby‘s not-credible trial testimony that other people filled out the assistance forms, earned gambling winnings, and opened bank accounts for him. The state presented significant circumstantial evidence that Irby knew that he was not entitled to benefits when he concealed every asset that he owned and then denied involvement in everything from filling out the forms that carried his signature, to collecting gambling winnings and opening bank accounts, which required valid identification.

Given the strength of the state‘s evidence and the far-fetched nature of the defense, we determine that Irby has not met his heavy burden of establishing that his substantial rights were affected by the plain error in the jury instructions.

III. The district court did not exceed its authority when ordering restitution.

Finally, Irby challenges the district court‘s decision to order restitution. This court reviews a district court‘s decision to order restitution for an abuse of discretion. State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015). However, questions about the district court‘s authority to grant restitution are subject to de novo review. Id. “[A] restitution award is a part of a sentence.” Evans v. State, 880 N.W.2d 357, 359 (Minn. 2016). “For a sentence to be unauthorized, it must ‍​​​‌‌‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​​‍be contrary to law or applicable statutes.” Id.

Irby first argues that the restitution order was unauthorized because the district court lacked authority to reserve the issue of restitution until sentencing and later issue a restitution order after the sentencing hearing. By statute, a district court may order restitution after sentencing if, among other things, “the true extent of the victim‘s loss . . . was not known at the time of sentencing.” Minn. Stat. § 611A.04, subd. 1(b)(3) (2020). In addition, “[t]he issue of restitution is reserved . . . if the victim‘s affidavit or other competent evidence submitted by the victim is not received in time” before the sentencing or dispositional hearing. Id., subd. 1(a) (2020). This court has determined that it is the knowledge of the district court—not the knowledge of the state or the victim—regarding the extent of the victim‘s loss that is controlling. Mason v. State, 652 N.W.2d 269, 272 (Minn. App. 2002).

Irby concedes that DHS had not submitted its affidavit for restitution before sentencing, but he argues that “other competent evidence” was received by the district court at trial, making the reservation of the issue of restitution improper. At trial, the state submitted evidence that Irby wrongfully received $65,657.82. But, at sentencing, even Irby‘s counsel observed that it was “unfortunate that we don‘t have a solid restitution amount right now.” He noted that there would likely be a restitution hearing and said that he “would wait to see what sort оf numbers the State actually crunches because they have quite a calculation to do with the fact there has been paybacks already made over the course of the years as well as existing benefits.” Because DHS had not yet finally determined its out-of-pocket losses, the district court did not err by reserving restitution at sentencing.

Irby next argues the district court lacked authority to order restitution because DHS filed its restitution affidavit after the 90-day deadline imposed by the district court. At the sentencing hearing on December 13, 2019, the district court directed that probation determine the amount of restitution within 90 days. DHS did not file its affidavit requesting restitution until March 25, 2020. Irby cites no authority for the proposition that the district court could not suspend the 90-day deadline that it had imposed. He cites a case noting that a district court issued a restitution order after the sentencing hearing when the request for restitution was submitted within the 30-day timeline set by the court at the sentencing hearing. See Andersen, 871 N.W.2d at 915 n.7. But Andersen does not stand for the proposition that a district court lacks authority to issue a restitution order if the affidavit requesting restitution is filed after the district court‘s own imposed deadline.

Finally, Irby argues that the district court did not have authority to order restitution because he never received notice of thе restitution request and therefore never received an opportunity to challenge restitution. The Minnesota Rules of Criminal Procedure require that a notice of restitution request be served upon each party or, if represented, upon that party‘s attorney. Minn. R. Crim. P. 33.01-.02. Minnesota Statutes set forth how a defendant may challenge restitution. A defendant may challenge a restitution request but must do so by requesting a hearing in writing within 30 days of receiving notification of the request or within 30 days of sentencing, whichever is later. Minn. Stat. § 611A.045, subd. 3(b) (2020). “A defendant may not challenge the restitution after the 30-day time period has passed.” Id.

At Irby‘s sentencing hearing, the district court wаs clear that Irby‘s offense required restitution and it informed Irby that, if he disagreed with the amount of restitution, he “[had] 30 days to file a writing with the Court and ask for a hearing on that.” Notice of the requested restitution was made to Irby when his counsel was served with the affidavit requesting DHS restitution and a proposed order via electronic filing on March 25. See Minn. R. Crim. P. 33.02. Additionally, notice of the district court‘s April 7 order for restitution was sent to Irby‘s appellate counsel and to him personally. Irby did not thereafter challenge restitution. His argument that the district court lacked authority to order restitution because he did not receive notice fails.

Irby also complаins that the district court issued its restitution order before expiration of his 30-day window to challenge the restitution request. But Irby cites no authority for the proposition that the issuance of the order precluded him from challenging the request for restitution so long as he did so within 30 days of notice of the request. He did not do so. This challenge to the restitution order also fails.

DECISION

To convict Irby of wrongfully obtaining public assistance, the state was not required to prove beyond a reasonable doubt that Irby acted with the intent to defeat the purposes of all of the public-assistance statutes listed in Minn. Stat § 256.98, subd. 1(1). His conviction was therefore supportеd by sufficient evidence. In addition, Irby is not entitled to a new trial based on the jury instructions. The district court did not err by instructing the jury on intent; and, though it committed plain error by failing to instruct the jury on a knowledge requirement, the error did not affect Irby‘s substantial rights. Finally, the district court did not exceed its authority when it ordered restitution.

Affirmed.

Notes

1
Irby argues that “[t]he 2016 version of the statute applies because the offense allegedly occurred from November 1, 2012, to May 31, 2017.” But the Minnesota Sentencing Guidelines instruct to use the earliest date as the date of the conviction offense if the offenses are aggregated, “or as otherwise permitted by statute.” See Minn. Sent. Guidelines 2 (2012); аccord State v. Washington, 908 N.W.2d 601 (Minn. 2018) (using the beginning date of a continuing offense). Theft is an offense for which the Minnesota Sentencing Guidelines indicate that the earliest date of the offense should be used. See Minn. Sent. Guidelines 2(2) (2012); see also 10 Minnesota Practice, CRIMJIG 16.68, .69 (2020) (listing jury-instruction guidelines for wrongfully obtaining assistance under theft offenses). For these reasons, we analyze the 2012 statute, despite appellant‘s reliance on the 2016 version. Regardless, the relevant language remains the same between both the 2012 and 2016 versions of the statute, and our analysis would thus be unchanged even if we had analyzed the 2016 version. Compare Minn. Stat. § 256.98, subd. 1(1) (2012), with Minn. Stat. § 256.98, subd. 1(1) (2016).
2
In fact, “purposes” has been used in different iterations of section 256.98, whether the list of covered statutes used “and,” “or“, or neither. See Minn. Stat. §§ 256.98 (2012) (“and“), .98 (1998) (“or“), .98 (1982) (neither).
3
In an unpublished decision, this court previously came to the same conclusion after considering section 256.98 to be ambiguous and interpreting the statute with the assistance of canons of construction. See State v. Malik, A18-2003, 2020 WL 1845964 at *11-13 (Minn. App. Apr. 13, 2020), review denied (Minn. June 30, 2020). Unpublished decisions are not precedential, see State v. Shaka, 927 N.W.2d 762, 767 n.6 (Minn. App. 2019) (citing Minn. Stat. § 480A.08, subd. 3 (2018); Vlahos v. R&I Constr. of Bloomington, Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004)), but, in any event, both the result and the fundamental reasoning in Malik are consistent with our decision today.
4
Within Irby‘s argument that the evidence is insufficient to prove that he acted with the intent to defeat the purposes of all of the listed public-assistance statutes, Irby also asserts, briefly, that the evidence is insufficient to prove that he intended to defeat the purpose of any of the public-assistance programs—even those in which he participated—because the evidence at most showed that he intentionally made false representations to obtain assistance ‍​​​‌‌‌​‌​‌‌‌​​​​‌‌​‌‌‌​‌‌‌‌​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌​​‍and not that he knew what the “purposes” of the programs were or specifically wanted to defeat those purposes. To the extent that Irby‘s brief argument is sufficient on appeal, we reject it. The evidence of the extent of Irby‘s false statements, the length of time over which he made them, and the amount of benefits he received based on the false statements more than satisfied the state‘s burden of proof.