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This opinion will be unpublished and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
A19-0077

State of Minnesota,
Respondent,

vs.

Michael Scott Hansen,
Appellant.

Filed December 16, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Carver County District Court
File No. 10-CR-17-507

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

Mark Metz, Carver County Attorney, Peter Ivy, Assist ant County Attorney, Chaska,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pr esiding Judge; Reilly , Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Michael Scott Hansen appeals his convictions for aiding and abetting
first- and second-degree burglary and possession of burglary tools. Hansen argues that this

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court should reverse the convi ctions because (1) the state failed to prove the charges
beyond a reasonable doubt and (2) the prosecutor deprived Hansen of his due-process right
to a fair trial by eliciting inadmissible evidence of other bad acts. Hansen contends, in the
alternative, that the district court erred by sentencing Hansen for both aiding and abetting
burglary and possession of burglar y tools because the offenses were part of the same
behavioral incident. We affirm in part, reverse in part, and remand to vacate the conviction
for possession of burglary tools.
FACTS
On the morning of May 1, 2017, th e property manager of Sun Lake Woods
Apartments—a secured apartment complex in Chaska—noticed that stereo equipment was
missing from the apartment complex’s commun ity room and called the Chaska police.
Video surveillance cameras cap tured two men, later identif ied as Hansen and Ezekiel
McDermott, removing the stereo equipment late the previous night. The surveillance video
shows that McDermott went alone to a side ex terior door of the complex and “popped” it
open with a tool. McDermott th en walked through the build ing to let Hansen in the
apartment complex’s main entrance. The two men then sp lit up and walked around in the
building until meeting together in the hallway leading to the locked community-room door.
Hansen stood behind McDermott as McDermott used a tool to open that door. Inside the
dark community room, McDermott worked under a flashlight to remove the room’s stereo
equipment. Hansen stood in the backgrou nd while McDermott removed the stereo
equipment and then held the door while McDermott walked out with the equipment.

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Chaska Police Detective Jamie Personius in vestigated the burglary. The detective
took a still shot of the apartm ent building’s surveillance footage and sent a crime alert to
the surrounding law enforcement agencies for help in identifying the two men. A Ramsey
County sheriff’s deputy responded to the alert after recognizing McDermott from his
booking photograph following a DUI arrest by New Brighton police on May 4, 2017—a
few days after the robbery. The detective followed up with the New Brighton police and
learned that Hansen was a passenger in the vehicle while McDermott was driving under
the influence. The detective also learned that the vehicle, a black Chevy Tahoe registered
to Hansen’s girlfriend, had been towed to an impound lot.
The detective obtained the girlfriend’s consent and searched the Tahoe. Inside, the
detective found the stolen ster eo; the jacket and hat worn by Hansen in the surveillance
footage; a large number of tools, including crowbars and screwdrivers; scrapping receipts;
and a blue notebook a nd loose paper containing addre sses, business names, and odd
location notes.1 The detective phoned Hansen while he was traveling from the impound
lot. In that call, Hansen origin ally stated that the tools in the Tahoe were his, but later in
the conversation, after the detective told him they were “construction type tools,” said that
he did not know where they came from. Hansen also stated that McDermott “stopped at a
couple of places that he just hangs his hat at and grabbed some s--t but I have no idea what
he all grabbed.” When the detective told Hansen about the surveillance video, Hansen said,

1 The detective testified that there was “writing on [the notes that] indicated that whoever
was writing that on these books was talking about pop machines, vending machines, inside
those hotels and apartment buildings and whether or not they would be easy to get into or
not.”

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“I never once took a piece of equipment ou t of any apartment bui lding or any house
period.” He said that he thought the stereo was McDermott’s, but he also said that
McDermott likes to tell lies and that “what I’ ve known about [McDermo tt] in the past is
he’s been a booster . . . . That he boosts from stores . . . . Ever ybody knows that.” He
followed with, “[S]o when he sa id that he was taking out some of his equipment I didn’t
know if it was something, ya know, I know I didn’t, but I told him straight out I ain’t
helping for s--t.” Hansen stated that McDerm ott was “gonna go ahead and get rid of [the
stereo] cause he was hurtin for money.”
The state charged Hansen with aiding and abetting burglary in the first and second
degree and possession of burglary tools. After a two-day trial, the jury retu rned a guilty
verdict on all three counts. The district court sentenced Hansen to a stayed prison term of
57 months for first-degree aidi ng and abetting burglary and a stayed prison term of 23
months for possession of burglary tools.
Hansen appeals.
D E C I S I O N
I. Hansen’s aiding-and-abetting-burglary convictions are supported by sufficient
evidence, but there is in sufficient evidence to su pport his conviction for
possession of burglary tools.

Hansen argues that his aiding-and-ab etting-burglary and po ssession-of-burglary-
tools convictions were not supported by suffi cient evidence. When a disputed element of
an offense is proved by both direct and circ umstantial evidence, appellate courts apply a
heightened standard of review. See Al-Naseer, 788 N.W.2d 469, 47 4-75 (Minn. 2010).
Here, the element of intent is disputed for both the aiding-and-abetting-burglary and the

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possession-of-burglary-tools offenses. Intent is generally shown through circumstantial
evidence. State v. Essex, 838 N.W.2d 805, 809 (Minn. App. 2013), review denied (Minn.
Jan. 21, 2014). We therefore apply the heightened standard.
To apply the circumstantial-evidence standard, an appellate court follows a two-step
analysis. State v. Moore , 846 N.W.2d 83, 88 (Minn. 20 14). First, we identify the
circumstances that the state has proved. See State v. Anderson , 784 N.W.2d 320, 329
(Minn. 2010). In doing so, we “d efer . . . to the jury’s acce ptance of the proof of these
circumstances.” Id. (quotation omitted). Appellate courts “construe conflicting evidence in
the light most favorable to the verdict and assume that the jury believed the State’s
witnesses and disbelieved the defense witnesses.” Moore, 846 N.W.2d at 88 (quotation
omitted). Second, we “determine whether the circumstances proved are consistent with
guilt and inconsistent with any rationa l hypothesis except that of guilt.” Id. (quotations
omitted). In other words, we evaluate whether the established circumstances rationally lend
themselves to inferences that are inconsistent with guilt. See State v. Stein , 776 N.W.2d
709, 719 (Minn. 2010). If they do, we must reverse the conviction. See Al-Naseer, 788
N.W.2d at 481.
A. The evidence is suffi cient to support the aiding-and-abetting-burglary
convictions.

Hansen does not dispute that the circumst ances proved are consistent with guilt of
aiding and abetting burglary but argues that they also allow a reasonable inference of
innocence—specifically, “that Hansen believed McDermott had permission to take the
stereo equipment and he merely assisted by driving him and holding the door open.”

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A person is criminally liable for aiding and abetting a crime committed by another
“if the person intentionally aids, advises, hire s, counsels, or conspires with or otherwise
procures the other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2016).
The state proved the following circumst ances. Hansen drove McDermott to the
apartment building in Hansen’s girlfriend’s Tahoe. McDermott broke into the building and
then let Hansen in. The two men separated, walked through the bu ilding, and joined up
again outside the community r oom. With Hansen several f eet away, McDermott popped
the locked community-room door open. The men walked into the community room.
Neither man turned on the community-room lights, although the room was dark and there
was a light switch immediately inside the d oor. Hansen watched as McDermott used a
flashlight while removing the stereo. Hansen held the door open for McDermott, who was
carrying the stereo. The two left together, with the equipment, in the Tahoe. Hansen knew
McDermott was a “booster” and in need of money and that McDermott intended to sell the
stereo.
Hansen argues that it is reasonable to infer that he believed McDermott had
permission to take the stereo equipment, em phasizing that he wa s not with McDermott
when McDermott broke into th e apartment building, that th e surveillance video showed
that the parties did not try to hide their faces from the cameras, that McDermott might have
used a flashlight because the men did not see the light switch, that Hansen might not have
seen McDermott break into the community room while Hansen was standing nearby, and
that McDermott took only the stereo and not other electronics in the building.

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In evaluating the reasonableness of a hypo thesis of innocence , we examine the
evidence as a whole an d do not rely on mere conjecture. State v. German , 929 N.W.2d
466, 475 (Minn. App. 2019). Applying those principles to th e evidence in this case, we
conclude that the circumstances proved make Hansen’s alternative theory implausible.
Hansen drove McDermott, a known “booster,” to an apartment build ing in the middle of
the night, waited while McDermott broke into the locked building and then let him in the
building, walked through the building and then stood nearby while McDermott broke into
the locked community room, watched as McDermott—using a flashlight—removed a
stereo, and then opened the door for McDermott and drove him away with the equipment.
There is only one plausible interpretation of these facts: Hansen knowingly aided and
abetted the burglary.
Sufficient evidence supports the jury’s finding of aiding and abetting burglary.2
B. The evidence is insuffi cient to support the po ssession-of-burglary-tools
conviction.

Hansen also argues that the evidence was insufficient to support his conviction for
possession of burglary tools. Minnesota law states that “[w]hoever has in possession any
device, explosive, or other instrumentality with intent to use or permit the use of the same
to commit burglary or theft may be sentenced to imprisonment.” Minn. Stat. § 609.59

2 We note that the district court, in the warrant of commitment, entered convictions on both
the first- and second-degree aiding-and-ab etting burglary offenses (counts 1 and 2,
respectively). Though not raised by the parties, we direct the district court to correct the
warrant of commitment to remove the convic tion for the second-degree offense (count 2)
because it is a lesser-included offense of the first-degree offense. See Minn. Stat. § 609.04,
subd. 1 (2018); State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), review denied
(Minn. Dec. 16, 2014).

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(2016). The required intent “may be drawn from the character of the objects and from the
circumstances surrounding their possession.” State v. Conaway, 319 N.W.2d 35, 41 (Minn.
1982). “The intent necessary is a general inte nt to use the tools in the commission of a
burglary and not an intent to commit a particular burglary.” Id.
In their briefing, the parties advance different theories as to which burglary tools the
jury found Hansen guilty of possessing. Hansen contends that the char ge pertains to the
tool used by McDermott to break into the apar tment building and community room on
May 1, while the state relies on the items fo und in the impounded Tahoe on May 4. We
look at the state’s th eory of the case at district cour t. The amended complaint identifies
May 1, 2017—the date of the burglary—as th e date of the possessi on-of-burglary-tools
offense. At sentencing, the prosecutor told the district court that the possession offense
occurred during the burg lary, stating, “I think you do have to pronounce sentence on the
burglary tools though because th at is a separate crime even though it occurred during the
course of this burglary, it is separate.” Finally, the warrant of commitment identifies May 1,
2017, as the date of the possession-of-burglary-tools offense. Following this theory of the
case, we review Hansen’s conviction for possession of burglary tools based on the tool that
McDermott used to prop doors open during the burglary on May 1.
Possession may be actual or constructive. State v. Harris , 895 N.W.2d 592, 601
(Minn. 2017). Constructive possession can be shown one of two ways. Id. “The State may
show that the police fo und the item in a place under the defendant’s exclusive control to
which other people normally did not have access, ” or the state “must show that there is a

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strong probability . . . the defendant was cons ciously or knowingly exercising dominion
and control over it.” Id.
Here, the circumstances proved do not lead to the rational inference that Hansen
possessed the tool used in the burglary. The video surveillanc e footage shows only
McDermott using a tool. No evidence support s the notion that Hansen ever possessed
McDermott’s tool. Further, police could not determine whether any of the tools later found
in the Tahoe were the specific tool McDe rmott used. The circumstances proved do not
establish that Hansen was in possession of the tool nor do they exclude the rational
inference that Hansen never possessed the tool. We reverse the district court’s possession-
of-burglary-tools conviction because, even when viewed in the light most favorable to the
guilty verdict, the evidence is insufficient to convict Hans en of possession of burglary
tools.
II. Eliciting testimony about other bad ac ts was not reversible plain error.

In another challenge to his aiding-and-abetting-burglary convictions, Hansen argues
that the district court erred when it allowe d the state to commit prosecutorial misconduct
by eliciting testimony from the detective about th e potential criminal nature of evidence
found in the Tahoe. Specifically, Hansen argue s that the detective’s testimony about the
“notebook that appeared to be a list of other places they could have been burglarizing,”
items the detective believed to be too new to be lawfully scrapped, equipment the detective
thought could be used to syphon gas, and a mask which could be used to “cover up their
identity, if they were doing so mething they weren’t supposed to,” was testimony of other
bad acts that deprived Hansen of a fair trial. Hansen did not object to this evidence at trial.

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Appellate courts use a modified plain-e rror test when examining unobjected-to
prosecutorial misconduct. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). Under that
test, the defendant bears the burden of establishing error that is plain. Id. at 302. “An error
is plain if it is clear or obvious, and usually this is shown if the error contravenes case law,
a rule, or a standard of conduct.” State v. Davis , 735 N.W.2d 674, 681 (Minn. 2007)
(quotations omitted). If the defendant establishes plain error, the burden shifts to the state
to prove that the error did not affect the defendant’s substantial rights. State v. Parker, 901
N.W.2d 917, 926 (Minn. 2017). To do so, the state must establish that there is no reasonable
likelihood that the absence of the misconduct would have had a signi ficant effect on the
jury’s verdict. Ramey, 721 N.W.2d at 302. If the state fails to meet that burden, we consider
“whether the error should be addressed to en sure fairness and the integrity of judicial
proceedings.” Parker, 901 N.W.2d at 926.
Hansen argues that the prosecutor committed error by not offering a Spreigl notice
before eliciting bad-act evidence. See State v. Spreigl, 139 N.W.2d 167, 173 (Minn. 1965)
(establishing notice requirement for other-bad-a cts evidence). Evidence of a defendant’s
prior bad acts may be admitted as Spreigl evidence if the evidence is used to prove “motive,
opportunity, intent, preparati on, plan, knowledge, identity, or absence of mistake or
accident.” Minn. R. Evid. 404(b); State v. Washington, 693 N.W.2d 195, 202 (Minn. 2005).
To introduce this evidence, the state must (1) provide notice to the other parties,
(2) “clearly indicat[e] what the evidence is being offered to prove,” (3) provide “clear and
convincing proof that the defendant participat ed in the other offense,” (4) prove that the
evidence is relevant, and (5) prove that the evidence’s probative value “is not substantially

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outweighed by its potential for unfair prejudice.” Washington, 693 N.W.2d at 201 (citations
omitted). The state did not offer any notice before eliciting the detective’s testimony.
Even if, in the context of the charges in this case, Hansen’s possession of the
contents of the Tahoe on May 4 was other-bad-acts evidence, “a trial court’s failure to sua
sponte strike unnoticed Spreigl evidence or provide a cau tionary instruction is not
ordinarily plain error.” State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). And, even if it
was plain error, reversal is not warranted if the state meets the third prong of the modified
plain-error test. “In evaluating the reasonabl e likelihood that the erroneously admitted
evidence significantly affected the verdict, this court must consider the persuasiveness of
that evidence . . . [and] the manner in which the evidence was presented.” State v. Jackson,
764 N.W.2d 612, 620 (Minn. App. 2009), review denied (Minn. July 22, 2009).
Here, while the evidence in question may have advanced a theory that Hansen
possessed burglary tools on May 4, it is unlikely that this evidence would have significantly
influenced the jury’s determination that Hansen aided and abetted the burglary on May 1.
This is especially true when compared to the amount and persuasiveness of the other
evidence. Hansen drove McDermott to and from an apartment complex late at night. He is
captured on the apar tment complex’s surveillance ca mera entering the complex and
separating from McDermott to look around. He then reunites with McDermott and stands
behind him while McDermott pops open th e locked community-r oom door. Finally, he
watches McDermott disassemble th e stereo in the dark and th en holds the do or open for
him as McDermott removes the stereo from th e apartment complex an d loads it into the
Tahoe. Hansen also stated that he knew McDermott lies, is a “booster,” and needs money.

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Hansen’s plain-error argument fails because the state met its burden of demonstrating that
any error did not affect his substantial rights.
In sum, the aiding-and-abe tting-burglary convictions were supported by sufficient
evidence and were not infect ed by plain error. We affirm the first-degree aiding-and-
abetting-burglary conviction. But because second-degree aiding and abetting burglary is a
lesser-included offense of first-degree aiding and abetting burglary, we direct the district
court to vacate the convictio n on the second-degree offens e. We conclude that the
possession-of-burglary-tools conviction is not supported by sufficient evidence and reverse
that conviction. Because the only sentence rema ining after reversal of that conviction is
Hansen’s sentence for first-degree aiding and abetting burglary, we need not address his
alternative argument that the district cour t erred by imposing two sentences. We remand
for the district court to correct the warrant of commitment with respect to the second-degree
aiding-and-abetting-burglary conviction and the possession-of-burglary-tools conviction.
Affirmed in part, reversed in part, and remanded.