State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1281

State of Minnesota,
Respondent,

vs.

Troy Michael Wierson,
Appellant.

Filed September 16, 2019
Affirmed in part, reversed in part, remanded
Cochran, Judge

Dakota County District Court
File No. 19HA-CR-15-2478

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hasting, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Cochran, J udge; and Kirk,
Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant Troy Michael Wierson challenges his convictions of fi rst-degree
possession of a controlled substa nce, endangering a child, cons piracy to sell a controlled
substance in the first degree, and aiding and abetting the sale of a controlled substance in
the first degree. Wierson argues that there was insufficient e vidence to support the
convictions and that the distric t court committed reversible er ror by answering the jury’s
questions during deliberations w ithout providing notice to the parties and without the
defendant being present. In a pro se supplemental brief, Wiers on also argues that the
district court erred by not dismi ssing a juror for cause. Beca use we conclude that the
evidence was sufficien t to support Wierson’s conviction of firs t-degree possession of a
controlled substance, that the judge’s error in answering the jury’s questions was harmless,
and that Wierson’s pro se argument is without merit, we affirm Wierson’s conviction for
first-degree possession of a controlled substance. Because we conclude that the evidence
was insufficient to support Wierson’s convictions for the other charges, we reverse
Wierson’s remaining convictions and remand for resentencing.
FACTS
We begin by reviewing the evidence presented during Wierson’s trial. In late June
of 2015, the Dakota County Drug Task Force (DCDTF) received an anonymous tip
regarding Wierson and a residenc e in Hastings. As a result of that tip, an investigator
collected the garbage that was outside the residence. The garbage contained two pieces of
tubular glass and some baggies that, in the investigator’s experience, were consistent with

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methamphetamine use. A field test of one of the pieces of glass produced a positive result
for methamphetamine.
Approximately one week later, investigators executed a search w arrant at that
residence. When officers entered the residence, they found Wierson’s wife, N.W., coming
out of a bedroom. Officers also found a seven-year-old boy in a different bedroom. An
officer testified at trial that the boy was N.W.’s biological son or stepson, and that he had
a different last name than both N.W. and Wierson. During the s earch of the residence,
officers found more than 25 grams of methamphetamine in a tool chest in the garage. The
tool chest also contained other items associated with drug use and/or sale, such as a digital
scale and small baggies.
Attached to the front of the tool chest were photographs of Wie rson with a small
child. Officers also found a traffic citation, along with a ma n’s watch, on the tool chest.
The citation had been issued to Wierson on June 18, 2015 (roughly two weeks before the
search) and listed the residence as Wierson’s address. The tool chest also contained N.W.’s
insurance card. In the living room of the residence, officers observed a photograph of
Wierson, N.W., and two children hanging on the wall.
While officers were executing the search warrant, an officer ob tained Wierson’s
phone number and called him. The officer informed Wierson that he was with the DCDTF,
that he was executing a search warrant at Wierson’s home, and asked Wierson to come to
the residence to speak with him. Wierson responded “I’m not coming home.”
Following the search of the residence, the state charged Wiers on with possession of
a controlled substance in the first degree. The state later am ended the complaint to add

4
charges of child endangerment, conspiracy to sell a controlled substance in the first degree,
and aiding and abetting the sale of a controlled substance in t he first degree. The case
proceeded to a jury trial.
During deliberations, the jury w rote out four questions for th e district court
regarding the evidence at the tr ial. The court records include a document containing the
questions from the jury. The questions were:
1. Are we able to see the warrant?
2. Can we consider the fact that the wife was
convicted?—Or do we stop at knowing she was
arrested?

3. Can we get a 2015 calendar?
4. Can we see details of citation?
At the bottom of the document, t he district court wrote, “All o f the evidence in this case
has been provided and no further information will be provided.” The record does not
contain any further information about how the district court’s response was prepared or
provided to the jury.
The jury found Wierson guilty o n all counts. The district court sentenced Wierson
to 128 months for conspiracy to sell a controlled substance in the first degree, and to 365
days for child endangerment. This appeal follows.
D E C I S I O N
Wierson argues that the evidence was insufficient to support hi s convictions and
that the district court committed prejudicial error in answering the jury’s questions without
notifying the parties and without the defendant present. In a pro se supplemental brief,

5
Wierson further argues that the district court erred in decidin g not to dismiss a juror for
cause. We address each issue in turn.
I. There was sufficient evidence to support Wierson’s conviction for first-degree
possession of a controlled substa nce but insuffici ent evidence to support his
other convictions.

In reviewing whether a conviction was supported by sufficient evidence, this court
conducts “a painstaking analysis o f the record to determine whe ther the evidence, when
viewed in the light most favorable to the conviction, was suffi cient.” State v. Ortega ,
813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We assume that “the jury believed
the state’s witnesses and disbelieved any evidence to the contr ary.” State v. Caldwell ,
803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). “[W]e 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 that the defendant was guilty
of the charged offense.” Ortega, 813 N.W.2d at 100.
In cases such as this one, where the conviction is based on circumstantial evidence,
this court conducts a two-step analysis. State v. Harris , 895 N.W.2d 592, 601
(Minn. 2017). First, we identify the circumstances proved at t rial, disregarding evidence
that is not consistent with the jury’s verdict. Id. Second, we “consider the reasonable
inferences that can be drawn from the circumstances proved when viewed as a whole.” Id.
“We give no deference to the jur y’s choice between reasonable i nferences at this second
step.” Id. The evidence was sufficient if the circumstances proved, viewed as a whole, are
“consistent with a reasonable inference that the accused is guilty and inconsistent with any
rational hypothesis except that of guilt.” Id. We do not look at the circumstances proved

6
as isolated facts but instead as a whole to determine whether they form a “complete chain
that . . . leads so directly to the guilt of the defendant as t o exclude beyond a reasonable
doubt any reasonable inference other than guilt.” State v. Al-Naseer, 788 N.W.2d 469, 473
(Minn. 2010) (quotation omitted). If the reasonable inferences are consistent with guilt, a
defendant must point to evidence in the record that is consistent with a rational hypothesis
other than guilt. State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
A. Possession of a Controlled Substance in the First Degree
To support Wierson’s conviction of possession of a controlled substance in the first
degree, the state was required to prove that Wierson unlawfully possessed “one or more
mixtures of a total weight of 25 grams or more containing . . . methamphetamine.” Minn.
Stat. § 152.021 (2014). To prov e that a defendant possessed a controlled substance, “the
state must prove that [the] defendant consciously possessed . . . the substance and that [the]
defendant had actual knowledge of the nature of the substance.” State v. Florine ,
226 N.W.2d 609, 610 (Minn. 1975). Knowing possession is typica lly proved through
circumstantial evidence. State v. Ali , 775 N.W.2d 914, 919 (Minn. App. 2009), review
denied (Minn. Feb. 16, 2010).
Possession can take two form s—actual or constructive. State v. Salyers ,
858 N.W.2d 156, 159 (Minn. 2015). Actual possession involves “direct physical control.”
State v. Barker, 888 N.W.2d 348, 353 (Minn. App. 2016) (quotation omitted). Constructive
possession of a controlled substance is established where the s tate demonstrates (1) “that
the police found the substance in a place under [the] defendant’s exclusive control to which
other people did not normally have access,” or (2) “that, if po lice found it in a place to

7
which others had access, there is a strong probability (inferab le from other evidence) that
[the] defendant was at the time consciously exercising dominion and control over it.”
Florine, 226 N.W.2d at 611; see also Salyers, 858 N.W.2d at 159 (noting that Minnesota
courts “have consistently applied Florine’s analysis as the test for constructive
possession”). The constructive-possession doctrine allows a co nviction where the state
cannot prove actual possession, but “the inference is strong th at the defendant physically
possessed the item at one time and did not abandon his possesso ry interest in it.” State v.
Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).
Possession of a controlled substance may be joint or exclusive. See State v. Ortega, 770
N.W.2d 145, 150 (Minn. 2009) (“A person may constructively possess contraband jointly
with another person.”). Applying the circumstantial-evidence standard, we conclude that
the evidence was sufficient to s upport Wierson’s conviction und er a constructive-
possession theory.
The relevant circumstances prov ed at trial regarding the posse ssion charge
were: DCDTF received an anonymous tip regarding Wierson and the residence of the
search; a search of the trash revealed tubular glass that teste d positive for
methamphetamine; more than 25 grams of methamphetamine were found in a tool chest in
the residence; the tool chest also contained other items associated with drug use and/or the
sale of drugs; a citation issued to Wierson two weeks prior to the search, which listed the
residence as his address, and a ma n’s watch were on the tool ch est; pictures of Wierson
with a child were attached to the tool chest; the tool chest contained N.W.’s insurance card;
N.W. was arrested at the residence; and when police contacted Wierson during the search

8
and asked him to come to the residence to speak with them, he responded, “I’m not coming
home.”1
We next consider whether the circumstances proved are consistent with Wierson’s
guilt. Generally, evidence that contraband was discovered in a shared residence in close
proximity to a defendant’s personal belongings is sufficient to establish constructive
possession. See, e.g., State v. Colsch , 284 N.W.2d 839, 841 (Minn. 1979) (concluding
there was sufficient evidence of constructive possession when p apers identifying the
defendant and the defendant’s checkbook were found near the dru gs); see also State v.
Mollberg, 246 N.W.2d 463, 472 (Minn. 1976) (concluding there was suffic ient evidence
of constructive possession of marijuana where marijuana, along with letters addressed to
defendant and the front end of de fendant’s motorcycle, were fou nd in a bedroom at a
residence where defendant frequently stayed). In this case, the presence of a man’s watch,
a citation that was recently issued to Wierson, and photographs of Wierson with a child on

1 Wierson urges this court to also consider as “circumstances pr oved” a number of facts
regarding the police investigatio n, including that police did n ot observe Wierson at the
residence, that police did not conduct fingerprint or DNA testi ng on any of the evidence,
and that police did not have direct knowledge of whether Wierso n knew that the
methamphetamine was in the garage. Although these facts are undisputed, we believe that
the proper way to view them is as illustrating the absence of c ircumstances proved. See
State v. German, 929 N.W.2d 466, 473-74 (Minn. App. 2019) (holding that “the a bsence
of evidence in the record regardi ng a certain circumstance does not constitute a
circumstance proved”). Furthermo re, we note that for purposes of deciding what
inferences are reasonable based on the circumstances proved, we do not discern any
difference based on the framing of the circumstances proved. F or example, whether we
view the circumstances proved as including that police did not observe Wierson at the
residence or we view the circumstances proved as not including that same fact, both
framings give rise to the same r easonable inferences with regar d to whether Wierson
constructively possessed the methamphetamine.

9
the tool chest support a reasonable inference that Wierson cons tructively possessed the
methamphetamine inside the tool chest.
The inference that Wierson cons tructively possessed the methamp hetamine is
further supported by Wierson telling the police officer, “I’m not coming home.” The jury
could reasonably infer that he told police that he would not co me home because he knew
what police officers would find in the tool chest. Cf. State v. Bias, 419 N.W.2d 480, 485
(Minn. 1988) (“[E]vidence of fli ght suggests consciousness of g uilt.”). Together, all of
these circumstances allowed the jury to reasonably infer that Wierson exercised dominion
and control over the substance in the tool chest sufficient to establish constructive
possession of the methamphetamine.
Wierson acknowledges that the ev idence gives rise to an inferen ce that he
constructively possessed the metha mphetamine because the evidence connected Wierson
to the residence and the tool chest. But he argues that the circumstances proved do not rule
out an alternative rational inference of innocence—that N.W. so lely possessed the
methamphetamine and that Wierson had no dominion or control ove r the
methamphetamine at the time that it was found. Wierson argues, among other things, that
there was no fingerprint or DNA evidence tying him to the methamphetamine, that the state
did not prove when he was last at the residence, and N.W. was a t the residence when the
drugs were found.
Although we agree with Wierson that the evidence gives rise to a reasonable
inference that N.W. constructively possessed the methamphetamine jointly with Wierson,
we do not agree that the evidenc e supports a reasonable inferen ce that N.W. exclusively

10
possessed the methamphetamine. The circumstances proved show t hat N.W. lived at the
residence and that her insurance card was in the tool chest. But there is no evidence in the
record to support that N.W. exclusively possessed the methamphetamine without Wierson.
The methamphetamine was not placed in an area to which Wierson had limited access or
would be unlikely to go. Rather, the methamphetamine was place d in a tool chest that
Wierson had access to, and the evidence, particularly the recen t driving citation, suggests
that Wierson had recently accessed the tool chest. While the state did not prove specifically
when Wierson was last in the residence, the presence of the recent driving citation negates
any inference that he had not b een at the residence for an exte nded period. Further,
Wierson told police that he was “not coming home” when asked to do so during the search,
suggesting that he was aware of the contraband and, at a minimu m, jointly possessed it
with N.W.
Although this is a close case, we conclude that the circumstances proved, viewed as
a whole, are inconsistent with a reasonable inference that Wier son had no dominion or
control over the methamphetamine found in the tool chest. In c onsidering the totality of
the circumstances, we conclude tha t they form a complete chain leading directly to the
conclusion that Wierson possessed the methamphetamine, either exclusively or jointly with
N.W., and excluding any reasonable inference that Wierson did n ot possess the
methamphetamine. See Al-Naseer, 788 N.W.2d at 473. Accordingly, we conclude that the
evidence was sufficient to suppor t Wierson’s conviction for fir st-degree possession of a
controlled substance.

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B. Child Endangerment
The state charged Wierson with c hild endangerment under Minn. S tat. § 609.378,
subd. 1(b)(2) (2014), which provides:
A parent, legal guardian, o r caretaker who endangers
the child’s person or health by:
. . . .
(2) knowingly causing or p ermitting the child to be
present where any person is selling, manufacturing, possessing
immediate precursors or chemical substances with the intent to
manufacture, or possessing a controlled substance . . . is guilty
of child endangerment . . . .

The statute defines “caretaker” as “an individual who has respo nsibility for the care of a
child as a result of a family relationship or who has assumed r esponsibility for all or a
portion of the care of a child.” Minn. Stat. § 609.376, subd. 3 (2014). Wierson argues that
the circumstantial evidence was insufficient to prove that he w as the child’s parent, legal
guardian, or caretaker within the meaning of the statute. We agree.
The relevant circumstances proved regarding the child are that D C D T F f o u n d a
seven-year-old child coming out of a bedroom in the residence during the search, the child
has a different last name than Wierson and N.W., the child was either N.W.’s biological
son or stepson, and there was a child’s bicycle in the garage. The state also asserts that
additional circumstances proved relevant to the child endangerment charge include: (1) the
family picture in the living roo m and (2) the pictures attached to the tool chest showing
Wierson with a child. But there is no evidence in the record t o demonstrate that the child
found by police at the residence was depicted in any of the pictures.

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The state argues that the circumstances proved were sufficient to give rise to an
inference that the child lived a t the residence and that Wierso n was guilty of child
endangerment by allowing the child to have access to an area wh ere Wierson possessed
methamphetamine. Even assuming the circumstances proved support the state’s argument,
the circumstances proved are also consistent with an alternativ e rational inference of
innocence—namely, that the child does not live full-time at the residence, that Wierson did
not have responsibility to provid e care for the child, and that Wierson is not the child’s
parent, legal guardian, or caretaker.
Importantly, the state did not pr esent any eviden ce regarding W ierson’s legal
relationship to the child, if any. Nor did the state present any evidence regarding whether
Wierson had assumed responsibility for any portion of the child’s care. Similarly, there is
no evidence regarding N.W.’s custody arrangement for the child. G i v e n t h e l a c k o f
evidence regarding Wierson’s re lationship to the child and the l a c k o f e v i d e n c e t h a t
Wierson had any responsibility to care for the child, the circu mstances proved are
consistent with a reasonable alte rnative inference that Wierson i s n o t a p a r e n t , l e g a l
guardian, or caretaker of the child. See Minn. Stat. § 609.376, subd. 3. Because the statute
only criminalizes the conduct of parents, legal guardians, and caretakers, the evidence was
insufficient to support Wierson’s conviction for child endanger ment. Therefore, we
reverse Wierson’s conviction of child endangerment.
C. Other Charges
Wierson also argues that there was insufficient evidence to sup port his conviction
of conspiracy to sell a controlled substance in the first degree or his conviction for aiding

13
and abetting the sale of a controlled substance in the first degree. He argues that the record
does not contain evidence of any sale or agreement to sell a controlled substance. The state
concedes that the evidence was i nsufficient to support these co nvictions. Based on our
independent review of the record, we agree.
The circumstances proved do not i nclude any agreement to sell a controlled
substance or any sale of a controlled substance. The circumsta nces proved are consistent
with a rational hypothesis that Wierson possessed the methamphetamine for personal use.
Because the circumstances proved are consistent with a rational hypothesis of Wierson’s
innocence, the evidence was insufficient to support Wierson’s c onvictions for conspiracy
to sell a controlled substance in the first degree and aiding a nd abetting the sale of a
controlled substance in the first degree. Therefore, we revers e Wierson’s convictions on
these charges.
II. The district court’s error in communicating with the jury was harmless error.

Wierson argues that the district court erred by responding to the jury’s deliberation
questions without notifying the parties and without the defendant being present. The state
agrees that the district court erred but argues that the error was harmless.
The United States Constitution give s a defendant the right to b e present “at all
critical stages of the trial.” Rushen v. Spain , 464 U.S. 114, 117-18, 104 S. Ct. 453, 455
( 1 9 8 3 ) . T h e M i n n e s o t a R u l e s o f C r i m i n a l P r o c e d u r e a l s o s p e c i f ically provide that a
defendant must be present “for e very stage of the trial includi ng . . . any jury questions
dealing with evidence or law.” Minn. R. Crim. P. 26.03, subd. 1(1). The district court
“should have no communication w ith the jury after deliberations begin unless that

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communication is in open court a nd in the defendant’s presence. ” State v. Sessions ,
621 N.W.2d 751, 755-56 (Minn. 2001).
In reviewing “the denial of a defendant’s right to be present for all communications
with the jury,” appellate courts apply a harmless-error analysi s. Brown v. State ,
682 N.W.2d 162, 167 (Minn. 2004); see also Sessions , 621 N.W.2d at 756 (“Even if a
defendant is wrongfully denied the right to be present at every stage of trial, a new trial is
warranted only if the error was not harmless.”). This analysis a p p l i e s e v e n w h e r e t h e
d i s t r i c t c o u r t f a i l s “ t o m a k e a complete record of those commun ications.” Brown,
682 N.W.2d at 167. “If the verdict was surely unattributable t o the error, the error is
harmless beyond a reasonable doubt.” Sessions, 621 N.W.2d at 756. When considering
whether the erroneous exclusion of a defendant from judge-jury communications
constitutes harmless error, we cons ider (1) the strength of the evidence and (2) the
substance of the judge’s response. Id.
Here, the jury asked four written questions that dealt with the evidence in the case.
The district court answered the questions in writing, rather th an communicating with the
jury in open court and in the defendant’s presence as required. The district court clearly
erred by responding to the jury’s questions in this manner. Id. at 755-56. Thus, we must
determine whether the error was harmless.
As to the first prong of the har mless-error analysis, we conclu de that the state’s
evidence was strong, but not overwhelmingly strong. It is undi sputed that police found
25 grams of methamphetamine in the tool chest at the residence. There was testimony that,
on the tool chest, police found a citation issued to Wierson ro ughly two weeks prior and

15
that the citation listed Wierson’s address as that of the resid ence where the
methamphetamine was found. In addition to the citation, the police found a man’s watch
on the tool chest, and photos of Wierson and a child attached to the tool chest. And when
an officer on the drug task force called Wierson and told him that police were executing a
search warrant at the residence, Wierson told the officer: “I am not coming home.” Based
on our review of the evidence, we conclude that the evidence that Wierson constructively
possessed the drugs was strong.
As to the second prong, we conclude that the district court’s r esponse was not
prejudicial to Wierson. In Sessions, the district court responded to a question about the
evidence by stating that the jurors were to decide the case based upon their own collective
recollection of the evidence. Id. at 757. The supreme court held that the instruction was
not prejudicial because the instr uctions did not favor the pros ecution or defense. Id. at
756-57.
Similarly, in this case, the district court instructed the jury to make its decision based
only on the evidence that it already had. In the jury’s first, third, and fourth questions, they
asked whether they could view additional evidence that was not provided during the trial.
The district court’s response correctly informed the jury that they could not receive the
additional evidence they requested.
Wierson argues that the jury’s s econd question—whether it could consider that
N.W. was convicted—demonstrated that the jury misunderstood the law or the evidence
because no evidence was presented at trial that N.W. was convic ted of a crime. But
Wierson’s defense attorney asserted in his opening statement that the evidence would show

16
that someone other than Wierson was found in the residence and convicted of drug
possession. Thus, the jury’s question appears to reflect uncertainty as to whether it could
consider defense counsel’s opening statement, despite the absence of evidence supporting
that statement.
During the district court’s final instructions to the jury, it told the jury that “the
arguments or other remarks of an attorney are not evidence.” “ We assume that the jury
follows a court’s instructions.” State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). To
the extent that the jury’s question indicates that it may not have followed the district court’s
instruction, and improperly considered defense counsel’s statement as evidence, this error
was not prejudicial to Wierson. Such an error would have actua lly supported Wierson’s
argument that N.W. possessed the methamphetamine. Any instruct ion from the district
court clarifying that defense counsel’s statements were not evi dence would only have
helped the state’s case. Accordingly, we conclude that the district court’s response did not
prejudice Wierson.
In weighing these two factors, we conclude that “the verdict wa s surely
unattributable to the error.” Sessions, 621 N.W.2d at 756. The evidence against Wierson
was strong, and we discern no prejudice to the defendant from the district court’s error. If
anything, it appears that the district court’s error prejudiced the state’s case. In light of the
lack of prejudice in the distric t court’s response to the jury’ s questions, we conclude that
the jury’s verdict was surely un attributable to the district co urt’s error and that the error
was harmless beyond a reasonable doubt.

17
III. The district court did not err in declining to strike a juror for cause.
In his pro se supplemental brief, Wierson argues that the distr ict court erred by
declining to strike for cause a juror who Wierson contends demonstrated actual bias. “The
United States Constitution and the Minnesota Constitution guarantee a criminal defendant
the right to an impartial jury.” State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015). “The
bias of a single juror violates the defendant’s right to a fair trial,” because the “impartiality
of the adjudicator goes to the very integrity of the legal syst em.” State v. Brown ,
732 N.W.2d 625, 630 (Minn. 2007). “To prove actual bias, the c hallenging party must
show that the juror exhibited strong and deep impressions that would prevent her from
laying aside her impression or o pinion and rendering a verdict based on the evidence
presented in court.” Fraga, 864 N.W.2d at 623.
Wierson argues that a juror expre s s e d a c t u a l b i a s w h e n t h e j u r or stated that his
“concentration isn’t all that great at a trial right now” and that “a lot of talk about this kind
of stuff, it is kind of over my head.” Wierson also notes that the juror stated that it was
difficult for him to sit for a long period of time. None of th e juror’s comments show that
the juror exhibited “strong a nd deep impressions” that would pr event him from “laying
aside [his] impression or opinion.” See id. In fact, none of the comments demonstrate any
impression or opinion of any kind, much less an opinion that wo uld have prevented the
juror from “rendering a verdict b ased on the evidence presented in court.” See id.
Accordingly, these comments do not suggest actual bias on the p art of the juror, and

18
Wierson’s pro se argument that the district court should have dismissed the juror for cause
due to the juror’s bias is without merit.2
Affirmed in part, reversed in part, and remanded.

2 Furthermore, we note that during voir dire counsel for the state inquired as to whether the
regular breaks the district cour t had previously mentioned woul d help with the juror’s
concentration issues. Although the juror continued to express a lack of confidence in his
abilities, he stated that he would be willing to “learn and listen” during the trial. The juror’s
comments alleviate any concern that he was not willing to sit and pay attention throughout
the trial.