This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Chad William Kessler,
Dakota County District Court
File No. K3-05-347
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James C. Backstrom,
John M. Stuart, State Public Defender, G. Tony Atwal, Assistant
Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*
Appellant challenges the district court’s failure to conduct a Schwartz hearing and the sufficiency of the evidence supporting his conviction. Because the evidence viewed in the light most favorable to the conviction is sufficient to support the conviction, and because the district court did not abuse its discretion by failing to conduct a Schwartz hearing, we affirm.
February 3, 2005, Olson Carriers, a family-owned trucking company in Coates,
was burglarized. That day, Daniel
Gardner, an Olson Carriers truck driver, arrived at work a little before 4:00
a.m. and then located and started his truck.
Appellant was charged with aiding and abetting third-degree burglary, a violation of Minn. Stat. §§ 609.582, subd. 3, .05, subd. 1 (2004). A jury trial was held, the foregoing evidence was presented, and appellant was convicted. The court sentenced him to 27 months.
During a recess on the second day of trial a deputy handcuffed and escorted appellant from the courtroom to a holding room. At the same time, the jury attendant ushered two jurors from the jury room to a nearby smoking area. The deputy immediately used his body to shield appellant’s handcuffed hands from the jurors’ view, turned appellant around, and escorted him down the hallway in the opposite direction. As a result of this incident, appellant moved for a mistrial. Appellant testified that he thought two of the jurors looked right at him, from a distance of five to ten feet, and noticed the handcuffs. However, the jury attendant testified that the jurors did not turn to see appellant and that the deputy kept the handcuffs from the view of the jurors. The district court determined that it was unlikely that the jurors had seen the handcuffs, and denied appellant’s motion for a mistrial. Appellant did not request a Schwartz hearing and the district court did not interview any jurors. This appeal follows.
first issue is whether the district court abused its discretion by denying
appellant’s motion for a mistrial and by failing to conduct a Schwartz hearing. This court will review the denial of a motion
for a mistrial for an abuse of discretion.
State v. Spann, 574 N.W.2d 47,
“The exposure of a jury to potentially
prejudicial material creates a problem of constitutional magnitude, because it
deprives a defendant of the right to an impartial jury . . .”
State v. Varner, 643 N.W.2d
298, 304 (
Here, it is not clear that the jurors even saw appellant in restraints. When appellant moved for a mistrial, the district court questioned the deputy and jury attendant. The deputy offered the following account:
I made sure that the hallway was clear. It was clear. We proceeded down the last hallway to the holding area. When we came to the door of the jury room I saw the court attendant exit the door, and I did see one juror starting to exit the door behind her. At that time I immediately turned Mr. Kessler around the opposite direction and escorted him back around the corner using my body to shield him from being seen by the jury.
The deputy concluded that he did not believe that any juror actually viewed appellant in restraints.
The district court then questioned the jury attendant. She testified that she was escorting two jurors to a designated smoking area when she noticed the deputy and appellant coming down the hallway. The jury attendant was between the jurors and the deputy, who was in turn shielding appellant from view. It was her opinion that the jurors were engaged in a conversation and did not turn to look at appellant. The district court determined that this encounter did not prejudice appellant and did not merit a mistrial.
situation described by the deputy and the jury attendant differs from
appellant’s version and does not indicate any prejudice. The district court has discretion to resolve
such a factual difference. See Opsahl v. State, 677 N.W.2d 414, 422
However, assuming the jurors glimpsed appellant’s restraints, this happened outside the courtroom. As the supreme court noted in Shoen II, instead of resulting in prejudice which impacted appellant’s substantial rights, the jurors would likely recognize the restraints as standard law enforcement procedure. 598 N.W.2d at 378. Because the district court correctly determined that appellant was not prejudiced, there is no error in this case regardless of whether the jurors saw anything. Thus, we conclude the district court did not abuse its discretion in denying appellant’s motion for a mistrial. Because of this result, we do not reach the issue of whether the district court erred by failing to sua sponte conduct a Schwartz hearing.
second issue is whether sufficient evidence supports appellant’s
conviction. In considering a claim
challenging the sufficiency of the evidence, this court’s “review on appeal is
limited to a painstaking analysis of the record to determine whether the
evidence, when viewed in a light most favorable to the conviction, was
sufficient to permit the jurors to reach the verdict which they did.” State
v. Webb, 440 N.W.2d 426, 430 (
sufficiency-of-the-evidence challenge to a conviction premised on
circumstantial evidence is strictly reviewed.
Bias, 419 N.W.2d at 484. Such convictions “will be sustained only when
the reasonable inferences from [circumstantial] evidence are consistent with
defendant’s guilt and inconsistent with any rational hypothesis except that of
guilt.” State v. Steinbuch, 514 N.W.2d 793, 798 (
crime of aiding and abetting, a violation of Minn. Stat. § 609.05, subd. 1
(2004), requires the state to “show some knowing role in the commission of the
crime by a defendant who takes no steps to thwart its completion.” State
v. Ostrem, 535 N.W.2d 916, 924 (
the circumstantial evidence indicates appellant’s intent to aid and abet third-degree
jury determined that appellant was present at Olson Carriers. Even though he was not the individual Gardner
saw carrying the bag of stolen tools, appellant’s intent to aid in the
commission of the crime may be inferred because of his presence in the building
and in the vehicle indicated that he intentionally counseled or conspired to
effectuate the burglary. See
theory of the case is that the driver and another individual burglarized Olson
Carriers, then the driver dropped off that other individual and picked up
appellant. Appellant did not offer any
evidence. The state pointed to circumstantial
evidence that made the appellant’s theory unrealistic. Based on police logs, distances, and vehicle
speed, the state’s timeline indicates that if the identified car left Coates
and traveled ten miles in about ten minutes, it would reach the point where State
Trooper Trautner made the stop. The
record reveals that while there are some businesses along Highway 52 where a
quick stop and exchange of passengers could have occurred, there are few
residential enclaves where the driver could have picked up the appellant. The likelihood of such a drop off and pick up
at 4:00 a.m. is remote. In any event,
appellant’s clothing and appearance were similar to that described by
We conclude that the circumstantial evidence in this case sustains the jury’s finding of guilt and that without any testimony or supporting evidence, appellant’s theory of the case does not raise a reasonable doubt regarding that finding.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The hearing urged by appellant is codified as Minn. R.
Crim. P. 26.03, subd. 19(6), and is also referred to as a Schwartz hearing. The
Minnesota Supreme Court established the Schwartz
procedure to address allegations of juror misconduct during trial. See