This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Chad William Kessler,


Filed August 15, 2006


Minge, Judge


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, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N

MINGE, 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.


            On 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.  Gardner noticed an unoccupied car parked in front of the shop office with its engine running and its doors ajar.  Gardner attempted to enter the shop office, but the door was locked with a dead-bolt.  This was unusual, as the practice was to keep this door open Monday through Friday.

              Gardner then attempted to enter the shop office through the repair shop.  Upon entering, he turned on the shop lights and heard a commotion behind him.  Gardner observed two white males leave the shop office through the front door that had been dead-bolted.  One of the individuals was carrying a bag and entered the driver’s side of the waiting vehicle.  The other individual sat in the passenger’s seat.  Gardner stated that the man in the passenger’s seat had a crew cut and was wearing a gray hooded sweatshirt.  Gardner noted the license plate number of the car before it sped away.

            Gardner called the Dakota County Sheriff’s office and at approximately 4:01 a.m., a deputy sheriff responded to a dispatch regarding two suspicious individuals leaving Olson Carriers.  At the same time, State Trooper Scott Trautner heard the crime report and license plate number on one of the dispatches he was monitoring.  Trautner ran the license plate number and discovered that it belonged to a light blue, older model Toyota.  He also knew from the dispatch that given the time and the area, it was likely that the vehicle was traveling north on Highway 52 towards the Highway 52/Interstate 494 interchange.  Trautner “shot” over to that location and within minutes spotted a light blue Toyota in the northbound lane of Highway 52.  Trautner followed the vehicle, and after verifying the license plate, he stopped the vehicle.  Trautner waited for back-up and then arrested both appellant Chad Kessler, who had a crew cut and was sitting in the vehicle’s passenger seat, and the driver.  Subsequently, a detective obtained a search warrant for the vehicle.  The ensuing search uncovered a bag in the back seat, which contained impact wrenches and other tools missing from Olson Carriers. 

            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.



            The 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, 52 (Minn. 1998).  Appellant premised his motion for a mistrial on jury prejudice, arguing that two jurors possibly saw him in restraints during a recess.  Although appellant did not request a Schwartz hearing, he now argues that the district court erred by failing to sua sponte conduct a hearing pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).[1]

             “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 (Minn. 2002) (quotation omitted).  Seeing a criminal defendant in restraints is inherently prejudicial and, therefore, a criminal defendant may only appear before the jury in restraints when justified by an essential state interest.  State v. Shoen (Shoen I), 578 N.W.2d 708, 713 (Minn. 1998).  But, the Minnesota Supreme Court has distinguished the use of restraints inside the courtroom from their use outside the courtroom.  See State v. Shoen (Shoen II), 598 N.W.2d 370, 378 (Minn. 1999).  In Shoen II, a juror admitted seeing the defendant in restraints in the hallway outside the courtroom.  Id.  The supreme court noted that this is distinct from seeing a defendant restrained in the courtroom because “the sight of a criminal defendant restrained during transport to or from the courtroom is likely to be seen for just what it is – standard law enforcement practice.”  Id. This case is similar to Shoen II

            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.

            The 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 (Minn. 2004) (stating that the district court is not obligated to accept the allegations of the party challenging the verdict via Schwartz procedures). 

            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.


            The 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 (Minn. 1989).  This includes an analysis of both the facts presented and the inferences the jury could reasonably draw from those facts.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  The reviewing court shall “assume the jury believed the state’s witnesses and disbelieved any contrary evidence.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  “The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.”  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

            A 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 (Minn. 1994) (quotation omitted).  This stricter standard, though, still recognizes that circumstantial evidence “is entitled to as much weight as any other type of evidence,” State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997), and that “a jury is in the best position to evaluate” that evidence, State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).

            The 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 (Minn. 1995) (quotation omitted).  The state must present evidence demonstrating more than mere presence at the crime scene “because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.”  Id.  Yet, “a person’s presence, companionship, and conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.”  Id.; see State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995) (reasoning that “intent may be inferred from the defendant’s presence, companionship, and conduct before, during, and after the commission of the offense”).

            Here, the circumstantial evidence indicates appellant’s intent to aid and abet third-degree burglary.  First, Gardner testified that he happened upon a burglary in progress when he arrived at work around 4:00 a.m.  While Gardner did not get a clear look at either individual that was involved in the burglary, he described the passenger as having a crew cut, which was very similar to the way appellant wore his hair, and he identified the get-away car.  State Trooper Trautner then testified about locating the vehicle and arresting appellant just minutes later.

            The 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 Minn. Stat. § 609.05, subd. 1; Arrendondo, 531 N.W.2d at 845.  Gardner’s testimony indicates that appellant did not passively wait in the car, but instead entered Olson Carriers without the permission of its owner.  The jury could reasonably have determined that this trespass evidenced appellant’s intent and could also have inferred that appellant assisted the driver in identifying and gathering the stolen tools from the parts shop. 

            Appellant’s 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 Gardner

            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.

[1] 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 Schwartz, 258 Minn. at 328, 104 N.W.2d at 303; State v. Morton, 701 N.W.2d 225, 232 n.1 (Minn. 2005).  Although the Schwartz hearing was originally created to address jury misconduct, “its applicability has expanded to address other post-trial issues involving juries.”  State v. Shoen (Shoen I), 578 N.W.2d 708, 716 (Minn. 1998); see Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (noting that Schwartz hearing is the appropriate procedure to determine whether outside influence was “improperly brought to bear on jurors”) (citation omitted), review denied (Minn. April 15, 1988).