This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Lloyd Albert Nelson,


Filed April 13, 2004


Minge, Judge


Otter Tail County District Court

File No. K1-02-1763



Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


David J. Hauser, Otter Tail County Attorney, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.




 U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Appellant challenges his conviction of first-degree arson on the grounds that: (1) the evidence was not sufficient to support the jury’s verdict; (2) the district court erroneously allowed the deputy fire marshal to testify that the incident had characteristics of a revenge fire and that appellant had reason to set the fire; (3) the district court improperly answered jury questions outside his presence and that of the attorneys; (4) the prosecutor’s closing argument undermined the presumption of innocence; and (5) the sentence and restitution orders were improper.  Although the testimony of the deputy fire marshal improperly invaded the province of the jury and the district court improperly answered questions from the jury outside the defendant’s presence, neither constituted reversible error.  Furthermore, because there was sufficient evidence to support the verdict, because the prosecutor’s closing argument was not improper, and because the sentence and restitution orders were not an abuse of discretion, we affirm.


            Appellant Lloyd Nelson had dated and lived with Lona Anthony for several years.  After their relationship ended, Anthony moved into Mike Listrom’s apartment and Nelson occasionally visited them.  On September 13, 2002, the three of them and others spent the night drinking.  Disagreements emerged, Nelson left the Listrom apartment threatening to kill everyone, and a fire was subsequently discovered in the garage attached to the apartment.  Nelson was arrested and charged with first-degree arson in violation of Minn. Stat. § 609.561, subd. 1 (2002).  A jury found Nelson guilty, and the district court sentenced him to 68 months in prison and ordered him to pay the owner of the building $15,714.87 in restitution.  Nelson appeals.



            The first issue is whether the evidence was sufficient to convict Nelson of first-degree arson.  In analyzing a challenge to the sufficiency of the evidence, we carefully examine the entire record, along with legitimate inferences from that evidence, to determine whether the jury could have concluded that the state met its burden of proving beyond a reasonable doubt that the defendant was guilty of each of the charged offenses.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  This court reviews the evidence in the light most favorable to the jury’s verdict.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  We assume that the jury believed the state’s witnesses and disbelieved evidence contradicting those witnesses.  Id.  When a conviction is based only on circumstantial evidence, it warrants stricter scrutiny.  Moore, 481 N.W.2d at 360.  Under the stricter review, an appellate court must determine whether the evidence, when taken as a whole, leads “so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  Id. (quotation omitted).  Even under the stricter analysis, we continue to assume that the jury believed the state’s witnesses.  State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997).

            Appellant Nelson was convicted of arson in the first degree in violation of Minn. Stat. § 609.561, subd. 1 (2002).  For first-degree arson, the state must prove: (1) the building at issue was destroyed or damaged by fire; (2) at the time of the act, the building was used as a dwelling or was next to or connected with a dwelling; (3) appellant caused the fire; and (4) appellant intended to destroy or damage the building.  Id.  Nelson challenges the sufficiency of the evidence for elements three and four.

At trial, witnesses testified that appellant Nelson and Ms. Anthony had lived together, that she had left him to live with Listrom, her new romantic partner, that Nelson spent the evening with Anthony, Listrom, and others at various locations, including Listrom’s apartment, that during the days prior to and including the day of the incident, Nelson was angry and abusive, that on the evening in question Nelson left Listrom’s apartment threatening to kill the others, that a fire was discovered in the garage attached to the apartment shortly after Nelson left, that Nelson carried a cigarette lighter, and that investigatory experts concluded that the fire was deliberate.  Appellant Nelson’s testimony was inconsistent and conflicted with statements given earlier to police.

Assuming that the jury believed the state’s witnesses, the evidence in the record, when taken as a whole, points to the guilt of Nelson so as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.  The evidence was sufficient to convict Nelson of first-degree arson. 


            The second issue is whether the district court abused its discretion in admitting portions of the deputy fire marshal’s testimony.  Nelson failed to object to this testimony at trial.  A district court “has broad discretion in deciding whether testimony by a qualified expert should be received.”  State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).  The decision to admit expert testimony will not be reversed on appeal absent clear error.  Bixler v. State, 582 N.W.2d 252, 255 (Minn. 1998).  To warrant reversal, there must be a showing of prejudice as well as error.  See State v. Chambers, 507 N.W.2d 237, 239 (Minn. 1993) (holding district court erred in allowing expert testimony but affirming conviction when error was not prejudiced).  Generally, where an appellant has failed to object in the district court, this court may reverse only where (1) the instructions contain error; (2) that is plain; and (3) the error affected a defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998).  The appellant must show that the error was prejudicial and affected the outcome of the case.  Id. at 741. 

Here, the deputy fire marshal testified to his training and experience, including his ongoing education, the kind of fires he has had training and experience investigating, and his 20 years experience investigating fires.  He also testified to the conditions at the fire scene, and that he had spoken to the owner of the property and other witnesses.  Having received information regarding the numerous arguments between Nelson and the others, the deputy fire marshal stated:

I also heard that there was a relationship breakup.  And what I like to refer this to is a “revenge-type” fire where there’s been a break-up either between a husband and wife or between boyfriend and girlfriend.  One or the other retaliates against the other.  And I’ve done these types of fires in the past.  That’s not what I solely based my conclusions on.  My basis is the physical evidence that was left at the fire scene.


            Nelson did not object to this testimony of the deputy fire marshal.  Nor did his counsel challenge this conclusion on cross-examination.  We conclude that although the deputy fire marshal was not qualified to give expert opinion as to the motive for the fire, we cannot say that admission of that opinion was so prejudicial as to constitute reversible error.  The jealousy/revenge motive was obvious and the evidence of guilt was otherwise strong.           


            The third issue is whether the district court erred when it responded to two jury questions outside of Nelson’s presence.  In the first instance, the jury requested a copy of the police report that was not in the record.  Although Nelson was not present, both the prosecutor and Nelson’s counsel heard the question on the record and agreed the judge should deny the request.  In the second instance, the judge denied a jury request for transcripts of testimony from five different witnesses.  The judge did not inform Nelson, his counsel, or the prosecutor of this request until after the verdict had been read and the jury dismissed.  The judge then read his response and asked the parties if they had anything to state for the record, to which both parties responded in the negative.

The Confrontation Clause in the Sixth Amendment grants a defendant the right to be present at all critical stages of trial.  Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987).  Minnesota provides an even broader right by requiring that a defendant be present at “every stage of the trial.”  State v. Charles, 634 N.W.2d 425, 432 (Minn. App. 2001) (citing Minn. R. Crim. P. 26.03, subd. 1(1)).  Although the right to be present can be waived, the supreme court has stated that such a decision is “not for counsel to make but a personal decision for defendant to make after consultation with counsel.”  State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).  With respect to jury deliberations, the Minnesota Supreme Court has held that “[a] trial court commits error when it engages in substantive communications with a deliberating jury outside of open court, without the defendant’s knowledge, consent or presence, and without the presence of defendant’s counsel and the prosecutor.”  State v. Sessions, 621 N.W.2d 751, 752 (Minn. 2001). 

However, even where a defendant is wrongfully denied the right to be present at a stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was surely unattributable to the error.  Id. at 756.  When considering whether the erroneous absence of a defendant from judge-jury communications was harmless error, we examine “the strength of the evidence and substance of the judge’s response.”  Id.  (citation omitted).  We must also take into account “what the defendant would have contributed to his defense if he had been present.”  State v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001).

Nothing in the record before us indicates, nor does Nelson argue, that he would have “contributed to his defense” had he been present to hear the judge’s response to the jury’s request.  Moreover, the judge’s responses were limited in scope, did not favor either side, and simply instructed the jury to decide the case based only upon the record before them and their recollection of the testimony.  Therefore, although we hold that the district court’s addressing the jury’s requests outside the presence of Nelson was error, we conclude that the errors in both instances were harmless and do not warrant a new trial. 


            The next issue is whether the prosecutor made comments in his closing argument that both minimized the burden of proof and the presumption of innocence. The general standard applied to determine whether prosecutorial misconduct warrants a new trial is whether “the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.”  State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation omitted).    With respect to claims of prosecutorial misconduct arising out of closing argument, this court considers the closing argument as a whole rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh,495 N.W.2d 602, 607 (Minn. 1993).

Nelson first points to the following sentences in the prosecutor’s closing argument:  “And the presumption of innocence is really another way of saying that nobody has just assumed that they did something.  The State has to prove it.  It’s another way of saying we have to have a day in court.”

Nelson also argues that other comments made by the prosecutor during closing argument enhanced the alleged prejudice caused by the deputy fire marshal’s testimony.  The prosecutor said: “This kind of fire is typical of a revenge fire in a broken relationship, and that’s exactly what we have here,” and “We have a situation where the Defendant, and only the Defendant, has a motive to set this fire, and it’s a typical arson motive.” 

Nelson failed to object to the prosecutor’s statements that he now alleges were improper.  See State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (holding that defense counsel’s failure to object implies the comments were not prejudicial).  With respect to the claim that the identified statements undermine the presumption of innocence, we note that these statements are at the end of a lengthy discussion that correctly and repeatedly indicates that the state has the burden to prove its case beyond a reasonable doubt and that each person is presumed to be innocent until proven guilty beyond a reasonable doubt.  The prosecutor’s comments about motive were the only references to a possible “revenge-fire” motive in a closing argument that spans 13 pages.  Further, the prosecutor did not refer to the fire marshal in the closing argument.  Taking the closing argument as a whole, we cannot say that these statements amount to prejudice affecting Nelson’s substantial rights.


The final issue is whether the district court abused its discretion by sentencing Nelson to 68 months in prison, his presumptive sentence for first-degree arson under the Minnesota Sentencing Guidelines, and by ordering him to pay the owner of the building restitution in the amount of $15,714.87.

a. Presumptive Sentence

The district court has broad discretion in determining whether to depart from the sentencing guidelines and “it would be a rare case which would warrant reversal of the refusal to depart.”  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Even if grounds exist that may justify a dispositional departure, this court generally will not interfere with the imposition of the presumptive sentence.  State v. Evenson, 554 N.W.2d 409, 412 (Minn. App. 1996).  “[A] defendant’s particular amenability to individualized treatment in a probationary setting” is considered a substantial and compelling circumstance that may justify a departure from the sentencing guidelines.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  In determining an individual’s particular suitability to such treatment, the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude in court, and the support of friends and family.  Id.  While the recommendations of a probation officer are entitled to consideration, they are not determinative.  State v. Halverson, 373 N.W.2d 618, 621 (Minn. App. 1985).

Nelson argues that the district court failed to consider evidence that his probation officer found him to be amenable to treatment and recommended probation.  When weighed against Nelson’s long criminal-history record, which included three felonies and eleven misdemeanors/gross misdemeanors, lack of remorse, and the absence of a significant family structure for support, we cannot say that the district court abused it’s discretion in abiding by the presumptive sentence.  

b.  Restitution

            Under Minnesota law, “[r]estitution is primarily intended to compensate a crime victim for his or her loss by restoring the victim to their original financial condition.” State v. Colsch, 579 N.W.2d 482 (Minn. App. 1998) (quotation omitted).  The district court has broad discretion in granting restitution and will not be reversed absent an abuse of that discretion.  State v. Tenerelli, 598 N.W.2d 668, 671 (Minn. 1999); State v. Thole, 614 N.W.2d 231, 234 (Minn. App. 2000).  But the record must provide a factual basis for the restitution awarded.  State v. Keehn, 554 N.W.2d 405, 408 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).  Through affidavit or other competent evidence, the victim must describe the items lost, itemize the total dollar amounts of restitution claimed, and specify the reasons to justify the amount.  Minn. Stat. § 611A.04, subd. 1(a). 

            Minnesota law requires that if the offender challenges a restitution demand, he is responsible for producing evidence to disprove the demand.  Minn. Stat. § 611A.045, subd. 3(a) (2002); see also Thole, 614 N.W.2d at 235.  Detailing the disputed amounts in an affidavit is the “sole vehicle by which the offender can meet the burden of pleading, and an essential element of the offender’s case required to met the burden of production.”  Thole, 614 N.W.2d at 235. 

            Nelson argues that the district court abused its discretion in ordering him to pay $15,714.87 in restitution.  By offering no evidence to the contrary, Nelson did not meet his burden of challenging the restitution order.  Furthermore, after a careful review of the record, the pleadings and evidence therein, we find that there exists a factual basis for the amount of restitution the district court ordered.