This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Sarah Joy Radunz,



Filed May 1, 2001


Kalitowski, Judge


McLeod County District Court

File No. K799319


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney, 830 East 11th Street, Suite 214, Glencoe, MN 55336 (for respondent)


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



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

U N P U B L I S H E D   O P I N I O N


            Appellant Sarah Joy Radunz contends her conviction of first-degree arson must be reversed because the district court’s failure to investigate possible jury misconduct when it received questions from the jury prior to deliberations was plain error affecting substantial rights.  We affirm.



            Even where a defendant fails to raise an objection to the district court, this court has discretion to consider a claim on appeal if there is plain error affecting substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  To determine if a defendant’s substantial rights were affected, this court analyzes whether the “error was prejudicial and affected the outcome of the case.”  Id. at 741 (citation omitted).

            Here, appellant claims she was denied her right to a fair trial because the district court failed to investigate possible jury misconduct.  She contends that the three questions submitted by the jury prior to formal resting of the defense, closing arguments, and jury instructions demonstrated the jury was impermissibly talking about the case prior to deliberations.

            District courts have discretion in deciding how to deal with premature jury deliberations.  U.S. v. Clapps, 732 F.2d 1148, 1152 (3rd Cir. 1984) (discretion of the district court respected because it is in a better position to observe the impact of the premature deliberations), overruled in part on other grounds by McNally v. United States, 483 U.S. 350, 107 S. Ct. 2875 (1987).  Here, the district court received the questions and read them into the record in the presence of both attorneys.  All parties recognized members of the jury were talking and decided to collectively formulate answers.  Defense counsel not only did not object to this procedure, but actively participated in it.  We conclude there was no plain error.

            Moreover, even if there was error, it was not prejudicial.  First, as to the timing of the questions, we note that at the time the jury asked the questions, both sides had presented all of their evidence.  In addition, we reject appellant’s contention that the jury’s question asking if expert evidence of methamphetamine effects would be presented indicated the jury improperly shifted the burden from the prosecution to the defense.  Appellant did attempt to discredit the state’s witness, who admitted to using methamphetamine, by highlighting the witness’s drug use both in cross-examination and closing arguments.  It can be assumed from the jury’s guilty verdict that it chose to believe this witness.  See State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000) (holding that appellate court assumes “the jury believed the state’s witnesses and disbelieved any evidence to the contrary” (quotation omitted)), review denied (Minn. Feb. 24, 2000).  We are satisfied that the question did not reflect a shifting by the jury of the burden of proof.

            Finally, there was significant evidence supporting the conviction.  Appellant was present at the fire scene, and two witnesses testified she previously said she was going to burn the victim’s house.  Although appellant did not testify at trial, her earlier inconsistent statements were admitted into evidence.  Thus the jury heard:  (1) appellant first claim she did not know what the other person present at the scene was doing with the accelerant, but later admit she knew he was using it to start the fire; and (2) appellant claim she was never in the house, but later admit she was in the kitchen trying to stop the other person from starting the fire.  Based on this evidence, there is not a reasonable likelihood that an investigation into jury misconduct would have had a significant effect on the jury’s verdict.  We conclude the district court did not commit plain error affecting appellant’s substantial rights.