This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Conan Wilson Hernandez,



Filed July 6, 2004


Kalitowski, Judge


Wright County District Court

File No. K8-02-402


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


Thomas N. Kelly, Wright County Attorney, Mark A. Erickson, Assistant County Attorney, 10 Second Street Northwest, Buffalo, MN 55313 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of aiding and abetting first-degree aggravated robbery, arguing that the district court erred in denying his motion for a mistrial because a witness had contact with a juror, the district court erred in instructing the jury, and the evidence was insufficient to support the verdict.  We affirm.



            Appellant argues that the district court erred in denying his motion for a mistrial following communication between a police-officer witness and a juror.  Generally, the disposition of a motion for a mistrial for jury bias is a matter within the district court’s discretion.  State v. Vance, 254 N.W.2d 353, 357 (Minn. 1977).  And because this decision involves determinations of credibility and demeanor, which are best left to the district court, this court affords the district court’s decision significant deference.  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).

            When confronted with the possibility of some outside influence on the jury, regardless of its source, the district court must inquire into its effect.  State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982).  The test for whether a juror can continue to be impartial is whether he or she “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”  State v. Andrews, 282 Minn. 386, 394, 165 N.W.2d 528, 534 (1969).  When reviewing the district court’s decision to replace the juror or not, this court must consider the nature and source of the prejudicial material, the number of jurors exposed to it, the weight of the evidence, and the likelihood that curative measures taken were effective.  Cox, 322 N.W.2d at 559.  

            Here, the record indicates that the officer witness had a three-minute conversation with a juror about snowmobiles outside the courtroom.  After the officer realized the person was a juror, he notified the court.  The district court then questioned the officer about the incident.  The officer testified that the juror was near him in the hall and the officer commented that the juror was wearing a snowmobile jacket and hat displaying the names of competing snowmobile manufacturers.  The officer and the juror then had a brief conversation about snowmobiles.  The officer testified that he believed that the individual was too young to be a juror and that he did not think that the juror knew that he was a witness.  Importantly, the officer testified that they did not discuss the case. 

            After the officer testified, appellant moved for a mistrial.  The district court denied the motion stating:

I don’t find any significant communication here and I don’t find much more than a casual good morning and conversation.  I suppose if there was some intent or point to make a connection or to taint the jury somehow, I would feel differently, but I don’t think [that] happened and there’s no proof that that’s what happened.


The district court also asked the attorneys if they wished to question the witness and they both responded no.

            Appellant argues that the communication between the juror and the officer witness deprived him of his right to an impartial jury because the conversation lasted a “significant period of time,” the officer “recklessly initiated [the] conversation,” and the officer testified as a witness a short period of time after the contact.  Appellant also argues that this gives at least the appearance of impropriety.  But in State v. Dillard, this court upheld a conviction despite a conversation between an arresting officer and a juror.  355 N.W.2d 167, 172-73 (Minn. App. 1984), review denied (Minn. Oct. 30, 1984).  There, the officer and juror were old hunting friends who had not seen each other in several years; the juror did not discuss the case with the officer and did not know the officer was a witness.  Id.  In State v. Rodriguez Torres, a juror had a brief conversation with an officer witness about a common interest.  400 N.W.2d 802, 805 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).  There, this court affirmed the district court’s decision not to remove the juror because nothing improper had occurred.  Id

            Similarly, the record supports the district court’s determination that there was no intent to taint the juror in this case.  The officer did not think the individual was a juror.  The conversation was brief and the officer and juror did not discuss the case.  Only one juror was affected by the contact.  There is substantial evidence of appellant’s guilt and the district court found that the contact was not prejudicial.  Therefore, we conclude that the district court did not err in denying appellant’s motion for a mistrial.


Appellant argues that the district court erred in instructing the jury, without first obtaining appellant’s consent on the record, that appellant had a right not to testify and that they could not draw any inference from the fact that appellant had not testified.  Appellant had adequate opportunity to object to this instruction but failed to do so.  Generally, unobjected-to jury instructions may be reviewed only where (1) the instructions contain error; (2) the error is plain; and (3) the error affects the defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An appellant bears the heavy burden of showing that the error was prejudicial and affected the outcome of the case.  Id. at 741.  Error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict.  Id.

Appellant correctly points out that the district court erred in giving the instruction.  An instruction on a defendant’s right not to testify should ordinarily not be given unless the defendant personally requests it.  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002).  Giving the instruction without obtaining the defendant’s consent on the record is error.  State v. Duncan, 608 N.W.2d 551, 558 (Minn. App. 2000), review denied (Minn. May 16, 2000); see also Minn. Stat. § 611.11 (2002) (stating that a defendant’s failure to testify shall not create any presumption against defendant nor be alluded to by the court).

            Here, appellant argues that the no-adverse-inference instruction highlighted his absence from the witness stand and his failure to explain the troubling aspects of his defense.  But appellant does not demonstrate beyond mere speculation how the instruction induced the jury’s guilty verdict.  Moreover, nothing in the record indicates a reasonable likelihood that the error had a significant effect on the jury’s verdict.  Appellant cites Duncan for the proposition that the no-adverse-inference instruction is prejudicial where credibility is at issue.  608 N.W.2d at 558.  But the court in that case was “not prepared to hold that the failure to obtain [the defendant’s] consent was reversible error.”  Id.  Instead, the court held that the cumulative effect of that error, prosecutor misconduct, and another district court error was sufficient to reverse the conviction.  Id. at 559.  Here, we conclude that appellant has not met his heavy burden of showing prejudicial error that affected the outcome of the case.


            Finally, appellant argues that the evidence was insufficient to sustain the verdict.  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

             A conviction “based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  But a jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.

            Here, appellant was charged with aiding and abetting first-degree aggravated robbery.  Thus, the state had the burden of proving that appellant intentionally aided, advised, hired, counseled, or conspired with or otherwise procured another to commit the robbery.  Minn. Stat. § 609.05 (2000).  Presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).  But inaction, knowledge, or passive acquiescence do not rise to the level of conduct encompassed by Minn. Stat. § 609.05, subd. 1.  Id.  To impose liability under the statute, the state must show that the defendant encouraged the principal to “take a course of action which he might not otherwise have taken.”  Id.  The state meets its burden by showing “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted).

            Appellant argues that he did not know Glenn Young was going to commit a robbery, did not aid Young during the robbery, and did not attempt to evade police after the robbery.  Thus, he argues his involvement in the crime does not rise to the level of conduct encompassed by Minn. Stat. § 609.05.  We disagree.  While inaction alone does not satisfy the elements of section 609.05, the jury can infer criminal intent from presence, companionship, and conduct before and after the offense.  Ulvinen, 313 N.W.2d at 428.

            Here, appellant was with Young before the robbery.  Appellant drove Young to the liquor store in appellant’s car.  Appellant parked the car away from the front door of the liquor store, despite the fact that closer parking spaces were available.  Young used a gun from appellant’s apartment during the robbery.  Appellant entered the liquor store with Young and went behind the clerk’s counter with Young.  Despite the fact that appellant claims he was there to purchase alcohol, he said nothing when Young brandished the gun and demanded money.  Appellant remained behind Young throughout the robbery and never made any attempt to thwart the robbery.  After the robbery, appellant and Young ran to appellant’s car and left; appellant was driving.  And when police attempted to pull the vehicle over, appellant did not immediately stop.

            We conclude that when viewed in the light most favorable to the verdict, the evidence is sufficient to prove that appellant had a knowing role in the commission of the crime and took no steps to thwart its completion.