State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0050

State of Minnesota,
Respondent,

vs.

Dzenan Jay Kamencic,
Appellant.

Filed April 19, 2021
Affirmed
Peterson, Judge*

Olmsted County District Court
File No. 55-CR-17-3882

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

Mark A. Ostrem, Olmsted Coun ty Attorney, James E. Haas e, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Dzenan Kamencic, Rochester, Minnesota (pro se appellant)

Considered and decided by Cochran, Presiding Judge; Gaïtas, Judge; and Peterson,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
PETERSON, Judge
In this pro se appeal from his conv ictions for possessing child pornography,
appellant argues that the eviden ce is insufficient to support the convictions and that the
district court erred by denying his motion for a mistrial after an investigator offered
testimony at trial based upon an undisclosed report. We affirm.
FACTS
In March 2017, police executed a sear ch warrant at appellant Dzenan Jay
Kamencic’s home. Officers recovered a co mputer hard drive and a cellphone. Both
devices contained suspected child pornography. The state charged appellant by amended
complaint with six counts of child-pornography possession. The charges concerned twelve
images of suspected child pornography and six alleged victims.
At appellant’s jury trial, an officer testified that the hard drive was from a computer
found in a kitchen cabinet and that the cellphone was found in a box in the basement. An
investigator testified about the forensic exam ination of the recovered devices. When he
turned on the cellphone, an email address consistent with appellant’s name appeared on the
cellphone, and pictures of appellant were recovered from the cellphone.
During cross-examination, defense counsel asked the investigator about “hash
values,” which are “line[s] of code” that are as “distinct to an image as fingerprints are to
a human” and can be used to determine whether an image is of a “known person.” Defense
counsel then asked the investig ator if any of the images fro m the cellphone or the hard
drive contained a known hash value, and the following exchange occurred:

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DEFENSE: You would agree with me that the images that
you looked at in preparation for trial today, none of those
images have known hash values; do they?
INVESTIGATOR: One did.
DEFENSE: Are you certain ab out that or are you just
guessing?
INVESTIGATOR: The images that . . . [another]
[i]nvestigator . . . selected to send through the National Center
for Missing and Exploited Children law enforcement portal, we
sent them through and months later we got a report back with
one image being identified by I believe [a] police department—
I think it was [the] Charlo tte-Mecklenburg [police
department].
DEFENSE: Do you have personal information about this or are
you relying on something you read or saw from [the other
investigator’s] work?
INVESTIGATOR: I’m relying upon the report that came back
to me that I shared with [the other investigator].
DEFENSE: So you received a report back?
INVESTIGATOR: After the images—I sent the images in and
they emailed me back that that report is ready.
DEFENSE: Did you provide a copy of that report to counsel?
INVESTIGATOR: Did I? No.

During a bench conference after this test imony, it was determined that one of the
pictures introduced at trial (exhibit 2) contained an identified person, which was noted in a
report, and neither the prosecution nor the defense had been made aware of the report. The
victim identification in the report was not co nclusive, as the report stated “the following
does not constitute verification of identity of the child,” and “[i]t is the responsibility of the
investigator or prosecutor to contact the listed law enforcement agency for verification of
image and age verification of the child.”
The prosecutor acknowledged an error, stating, “I should’ve asked if we had reports
in this regard.” Defense counsel requested a mistrial because of the purported discovery
violation, and the district court denied the request. Defense counsel then requested an

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opportunity to cross-ex amine the investigator about his misstatement that a victim was
identified by hash value. Defense counsel also requested that the state be prohibited from
eliciting testimony that a victim had been identif ied in a report. The district court agreed
to proceed in that manner.
When the trial resumed, the following exchange took place:
DEFENSE: Investigat or, this morning I had asked you to
confirm for me that none of the people in the photographs had
been identified and you indicate d that you believed one had;
do you recall that?
INVESTIGATOR: I recall that.
DEFENSE: You were basing your testimony on a report you
received from [the National Center for Missing and Exploited
Children]; is that correct?
INVESTIGATOR: Correct.
DEFENSE: That’s a center that looks at the photos and tries to
identify people; right?
INVESTIGATOR: Correct.
DEFENSE: And now you’ve had a chance since this morning
to look at the report that you got; is that correct?
INVESTIGATOR: Correct.
DEFENSE: You would agree with me that on page 3 of the
report there’s a disclaimer that says: “The following does not
constitute verification of identity.” Do you acknowledge that?
INVESTIGATOR: I acknowledge that, yes.
DEFENSE: Understanding that there’s that disclaimer on this
report that it does not constitute verification of identity, would
you agree with me now that actually none of the persons in
those photos have been identified?
INVESTIGATOR: I would agree with that.
DEFENSE: And so your testimony this morning about one of
them being an identified person due to a [hash value] was
mistaken?
INVESTIGATOR: Yes.

A second investigator testif ied that exhibits 1, 2, 3, and 5 were recovered from the
hard drive, and exhibits 4 and 6 through 12 were recovere d from the cellphone. These

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exhibits were admitted into evidence. Acco rding to the second i nvestigator, appellant
stated that he lived with his mother at the home that was searched, his daughter occasionally
visited, and appellant’s bedroom was in the basement of the home.
Appellant did not testify, and the defens e did not present evidence. The defense
moved for judgment of acquittal, arguing that the state failed to prove that the victims were
underage. The district court denied the moti on. The jury found appellant not guilty on
counts one (exhibits 6-12), three (exhibit 2), and five (exhibit 3), and guilty on counts two
(exhibit 4), four (exhibit 5), a nd six (exhibit 1). The district court stayed imposition of
sentence and placed appellant on probation for five years. This appeal followed.
DECISION
I. Sufficiency of the evidence
In considering a challenge to the sufficiency of the evidence to sustain a conviction,
we carefully analyze the record to determine whether the evidence, viewed in a light most
favorable to the conviction, was sufficient to permit the jury to reach its verdict. State v.
Webb, 440 N.W.2d 426, 430 (Minn. 1989). We “assume that the jury believed the state’s
witnesses and disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37, 42 (Minn.
1998). We will not disturb a guilty verdict if the jury, acting with due regard for the
presumption of innocence and requirement of proof beyond a reasonable doubt, could
reasonably have concluded that the state proved the defendant’s guilt. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
Appellant was convicted of violating Mi nn. Stat. § 617.247, subd. 4(a) (2016),
which makes it a crime for a person to possess a “pornographic work” if the person knows

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or has reason to know “its content and charac ter.” A “pornographic work” is defined to
include a picture that uses a minor to depict “sexual conduct.” Minn. Stat. § 617.246, subd.
1(f) (2016).
The state relied on circumstantial evidence 1 to prove that appellant constructively
possessed the images. In order to prove constructive possession, the state needed to show:
(1) that the police found the contraband “in a place under defendant’s exclusive control to
which other people did not normally have access,” or (2) “that, if police found it in a place
to which others had access, there is a str ong probability (inferable from other evidence)
that defendant was at the time consciously exercising dominion and control over it.” State
v. Florine, 226 N.W.2d 609, 611 (Minn. 1975); s ee also State v. Myrland , 681 N.W.2d
415, 420 (Minn. App. 2004) (s tating that because appellant was not seen viewing images
or using computers to do so, the state was re quired to prove appellant had constructive
possession of computers by showing that he ex ercised dominion and control over them),
review denied (Minn. Aug. 25, 2004).
When the state relies on circumstantial evidence to prove an element of an offense,
we apply a heightened standard of review. See Harris, 895 N.W.2d at 601-03. Under the
heightened circumstantial-evidence standard, we use a two-step process. Id. at 601. First,
we identify the circumstances proved, “disregard [ing] evidence that is inconsistent with

1 Circumstantial evidence is “evidence from which the fact[-]finder can infer whether the
facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017)
(quotation omitted). “In contrast, direct evid ence is evidence that is based on personal
knowledge or observation and that, if true, proves a fact without inference or presumption.”
Id. (quotation omitted).

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the jury’s verdict.” Id. Next, we “determine whethe r the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis other than guilt.” Loving
v. State, 891 N.W.2d 638, 643 (Minn. 2017) (quo tation omitted). We do not defer to the
fact-finder’s choice between reasonable inferences. State v. Silvernail, 831 N.W.2d 594,
599 (Minn. 2013). We will reverse a conviction based on circumstantial evidence only if
there is a reasonable inference other than guilt. Loving, 891 N.W.2d at 643.
The cellphone and hard drive were r ecovered from appellant’s home, and both
devices contained images of young girls that the jury determined were child pornography.
The cellphone also contained a photo of a utility bill addressed to appellant and photos of
appellant, which one investigator described as “selfies.” And, when an investigator turned
on the cellphone, an email address consistent with appellant’s name appeared. The
cellphone was recovered from th e basement, and appellant told an investigator that he
resided in the basement. Under these circ umstances, there was a strong probability that
appellant exercised dominion and control over the cellphone.
Although the circumstantial evidence that linked appellant to the hard drive is not
as strong, the hard drive was found in a place where appellant had access to it, and appellant
has not posited an alternative hypothesis that is inconsistent with his guilt. Because
appellant’s mother also lived in the house, and his daughter occasi onally visited, it is
possible that the computer hard drive belonged to one of them. But the record contains no
evidence that supports this hypothesis. Speculation or conjecture cannot be the basis for a
posited alternative hypothesis. State v. Al-Naseer , 788 N.W.2d 469, 480 (Minn. 2010).

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The circumstantial evidence was sufficient to establish that appellant was in constructive
possession of the computer hard drive.
Appellant argues that phones and computer hard drives often change hands, and the
state failed to prove “when the images were downloaded, from what location[,] . . . and by
whom.” But section 617.247, subdivision 4(a), criminalizes possession, not downloading.
The state was not required to prove when or how the images were downloaded; it needed
to prove only that appellant possessed the images and knew or had reason to know of their
character.
Citing a definition of “identifiable minor” that is contained in 18 U.S.C. § 2256
(2018), appellant argues that the persons in the images “were not identified minors,” and
the prosecutor “incorrectly advised the jury that victims do not have to be identified.” But
the federal statute that appellant cites does not apply to the charges brought here under a
state statute. See 18 U.S.C. § 2256 (stating that the de finitions are “[f]or the purposes of
this chapter”).
Appellant also cites Minn. Stat. § 6 17.246, subd. 1(f)(2), which defines a
pornographic work to include a visual depic tion that “has been created, adapted, or
modified to appear that an identifiable mi nor is engaging in sexual conduct,” and argues
that the evidence was not sufficient to prove the identity of the people in the photos. But
appellant misinterprets that statute. It does not require that a ch ild’s actual identity be
proved. Section 617.246, subdivision 1(f), a lternatively defines a pornographic work to
include pictures that use “a minor to depict actual or simulated sexual conduct,” and
another provision defines “minor” as “ any person under the age of 18 .” Minn. Stat.

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§ 617.246, subd. 1(b) (2016) (emphasis added). The statutory language that appellant cites
merely requires that a child depicted in a “c reated, adapted, or modified” image be real,
not virtual or fabricated. See State v. Fingal , 666 N.W.2d 420, 425 (Minn. App. 2003)
(“The visual depiction must be of an identifiable minor, not a virtual child.”), review denied
(Minn. Oct. 21, 2003); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 239, 256, 122
S. Ct. 1389, 1396, 1405 (2002) (concluding that federal act that extended prohibition
against child pornography to se xually explicit images “that appear to depict minors but
were produced without using any real children” was unconstitutional).
II. Denial of motion for mistrial
We review a district court’s denial of a motion for a mistrial for an abuse of
discretion. State v. Griffin , 887 N.W.2d 257, 262 (Minn. 2016). “A mistrial should be
granted only if there is a reasonable probability, in light of the entirety of the trial including
the mitigating effects of a cura tive instruction, that the outc ome of the trial would have
been different had the incident resulting in the motion not occurred.” Id. The district court
is in the best position to determine whether a mistrial is warranted, or if an alternate remedy
is appropriate. Id.
Appellant argues that a mistrial was warra nted because an und isclosed report was
the basis for an investigator’s testimony that one of the victims was identified by hash
value, and the failure to disclose the report was a discovery violation. A reviewing court
will not disturb a district court’s remedy for di scovery violations absent a clear abuse of
discretion. State v. Lindsey , 284 N.W.2d 368, 373 (Minn. 1979). When exercising this
discretion, the district court should consider: (1) the reason why disclosure was not made;

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(2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that
prejudice by a continuance; and (4) any other relevant factors. State v. Spann, 574 N.W.2d
47, 53 (Minn. 1998). “Generally, without a showing of prejudice to the defendant, the
state’s violation of a discovery rule will not result in a new trial.” State v. Scanlon, 719
N.W.2d 674, 685 (Minn. 2006) (quotation omitted).
Even if we assume that a discovery viola tion occurred, the district court’s remedy
was not a clear abuse of its discretion.2 In denying a mistrial, the district court determined
that the failure to disclose the report was inadvertent, a “miscommunication,” and that any
prejudice could be rectified. Defense counsel requested the opportunity to cross-examine
the investigator about his victim-identification testimony, rather than have the court give a
curative instruction. Defense counsel also requested that the state be prohibited from
eliciting further testimony regarding the undisc losed report. The di strict court granted
these requests. Upon further cross-examination, the investigator testified that none of the
persons in the photos had been identified and that his testimony that one was identified by
hash value “was mist aken.” Given these curative meas ures, the investigator’s limited
testimony about the identification of a victim su rely had no effect on the verdict. In fact,
the jury returned a not-guilty verdict on the charge involving the image that the investigator
incorrectly testified was the image of an “identified” minor.

2 Appellant also suggests that the district court erred by “refusing to acquit.” However, he
fails to cite any authority or make any argument to support this bare assertion. We decline
to consider this argument. See State v. Krosch , 642 N.W.2d 713, 719 (Minn. 2002)
(declining to consider allegations made in a supplemental brief with “no argument or
citation to legal authority”).

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Citing Minn. R. Civ. P. 26.01(a)(3), appellant also argues that the state failed to
disclose evidence in a timely manner. But the rules of civil procedure do not apply in this
case. See Minn. R. Crim. P. 1.01 (“These rules [of criminal procedure] govern the
procedure in prosecutions for felonies, gr oss misdemeanors, misdemeanors, and petty
misdemeanors in the district courts in the State of Minnesota.”).
Affirmed.