A21-0480

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0477
A21-0480

State of Minnesota,
Respondent,

vs.

Irfan Beganovic,
Appellant.

Filed April 11, 2022
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Otter Tail County District Court
File No. 56-CR-19-2351

Keith Ellison, Attorney Genera l, Ed Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

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

Considered and decided by Jesson, Presid ing Judge; Bryan, Judge; and Kirk, Judge.

SYLLABUS
1. The word “unlawfully,” as used in th e first-degree arson statute, Minnesota
Statutes section 609.561, subdivision 1 (20 16), is defined by reference to Minnesota
Statutes section 609.564 (2016), which provides that a person who has a license, permit,
or written permission from the fire department to set a fire is not guilty of arson.

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
2. A conviction of arson in the first de gree under Minnesota Statutes section
609.561, subdivision 1, does not require the state to prove beyond a reasonable doubt that
the defendant acted unlawfully.
3. When a defendant’s criminal-history score includes a partial custody-status
point, the partial point must be disregarded when determining the presumptive sentence.
OPINION
JESSON, Judge
In June 2018, a house burned down in Fergus Falls. Although the homeowner,
appellant Irfan Beganovic, denied setting the fi re, respondent State of Minnesota charged
him with first-degree arson. At trial, Bega novic’s daughter claimed that she accidentally
started the fire. But the state’s expert witne ss disputed this account and testified that the
fire was intentionally set in three separate places. The jury found Beganovic guilty. The
court sentenced him to a stayed prison term and ordered him to pay restitution to his
insurance company.
Beganovic argues that he is entitled to a new trial because the state failed to prove
that he acted “unlawfully” when he set fire to his home. Alternatively, he challenges his
sentence, the restitution order, and the calculation of his criminal-history score. We affirm
Beganovic’s conviction and his sentence in most respects but reverse and remand for
resentencing with a correct criminal-history score.
FACTS
In 2018, Beganovic’s house caught fire. When first responders arrived, Beganovic
and his family were already outside the home. Beganovic claimed that he had been asleep
3
and woke up to see the fire spreading. But the family’s lack of injuries raised the suspicions
of the fire chief, who persona lly came to the fire. When the fire chief walked through
Beganovic’s home with the fire marshal investigator, they concluded that the fire had three
separate areas of origin.
After the fire, Beganovic filed an insurance claim. Upon further review of the home,
the fire chief, the fire marshal investigator , and a fire investigator for Beganovic’s
insurance company all concluded that the fire had been intentionally set. The insurance
company denied Beganovic’s claim. Follo wing the investigation, the state charged
Beganovic with first-degree arson.
At trial, the state first called the fire i nvestigator and an engineer who inspected the
home to testify. The engineer testified that the appliances in the home could not have
caused the fire, and the investigator testified th at the fire had been in tentionally set. But
when the state called Beganovic’s daughter to testify, she claimed to have accidentally
started the fire while smoking a cigarette. The state then called the deputy fire marshal as
an expert witness, who disputed the daughte r’s explanation becaus e her version did not
account for the other two points of origin of the fire. The jury found Beganovic guilty.
After the verdict, Beganovic moved for downward dispositional and durational
departures. He argued that a dispositional departure was appropriate because he was
particularly amenable to probation. But he contended that a durational departure was even
more important because he faced deportation if sentenced to a felony. The district court
granted Beganovic’s dispositio nal-departure motion but denied his durational-departure
motion and reserved the issue of restitution.
4
Beganovic’s insurance company filed an a ffidavit with the district court requesting
restitution for $25,867.52 that it incurred in the course of investigating his claim.
Beganovic objected to restitution, cont ending that the company was requesting
reimbursement for its business expenses rather than a loss that resulted from his conduct.
After holding a hearing, the district court or dered Beganovic to pay restitution to the
insurance company, minus the $16,542.75 request ed for attorney fees , in the amount of
$9,324.77.
Beganovic appeals. 1
ISSUES
I. Does a first-degree arson conviction requir e the state to prove that the defendant
acted unlawfully as a separate element of first-degree arson?
II. Did the district court abuse its disc retion by denying Bega novic’s motion for a
durational departure?
III. Did the district court abuse its discreti on by ordering Beganovic to pay restitution?
IV. Did the district court sentence Beganovi c using the wrong criminal-history score?
ANALYSIS
Beganovic argues that he is entitled to a new trial because the state failed to prove
that he acted unlawfully. In th e alternative, he contends that the district court abused its
discretion by denying his motion for a durati onal departure and ordering that he pay
restitution. Finally, he contends that he was sentenced using an incorrect criminal-history
score. We consider each claim in turn.

1 Beganovic separately appealed his conv iction (A21-0477) and the restitution order
(A21-0480). We consolidated the appeals.
5
I. In a prosecution for first-degree arson, the state is not required to prove that
the defendant acted unlawfully as a separate element of the crime.

Beganovic argues that although the state proved that he intentionally set fire to his
home, the evidence is insufficient to support his first-degree arson conviction because the
state failed to prove that he “unlawfully” burned his house down. Due process requires the
state to prove every element of an offense beyond a reasonable doubt. State v. Pakhnyuk,
926 N.W.2d 914, 919 (Minn. 2019 ). Beganovic alleges that the state failed to do so here
by not proving that he acted unlawfully. When, as here, a suffici ency-of-the-evidence
claim turns upon the meaning of a statute, we interpret the statute de novo. State v. Bowen,
921 N.W.2d 763, 765 (Minn. 20 19). To resolve this questio n, we first consider what
“unlawfully” means in the context of the first-degree arson statute. We then turn to whether
the state bears the burden of proving that the defendant acted unlawfully.
The goal of statutory interpretation is to effectuate the legislature’s intent. Minn.
Stat. § 645.16 (2020). To discern this intent, we look to the plain meaning of the statutory
language. State v. Thompson , 754 N.W.2d 352, 355 (Minn. 2008). And we may read
multiple sections of a statute together to determine its plain meaning. Cilek v. Off. of Minn.
Sec’y of State, 941 N.W.2d 411, 415 (Minn. 2020). We also look to the common meaning
of the words used by the legislature. State v. Haywood , 886 N.W.2d 485, 488
(Minn. 2016). If the language of a statute is subj ect to more than one reasonable
interpretation, we consider the canons of construction and other tools to discern legislative
intent. State v. Struzyk, 869 N.W.2d 280, 285 (Minn. 2015).
6
To determine the meaning of the word “unlawfully” in the arson statute, we begin
with the statutory language, which follows: “Whoever unlawfully by means of fire or
explosives, intentionally destroys or damages any building that is used as a dwelling at the
time the act is committed . . . commits arson in the first degree.” Mi nn. Stat. § 609.561,
subd. 1 (emphasis added) (the arson statute).
Beganovic argues that the word “unlawfully ” creates a presumption that the state
must do more than prove that he acted intentionally when he set fire to his home. The state
contends that “unlawfully” means “without authorization” under Minnesota Statutes
section 609.564 (the permit statute), which provides that a person who “sets a fire pursuant
to a validly issued license or permit or with written permission from the fire department of
the jurisdiction where the fire occurs” does not commit arson.
Based upon the plain language of the arson statute, we agree with the state. Reading
the arson statute and the permit statute together, we conclude that “unlawfully” in the arson
statute means “without authorization” (the license, permit, or written permission) described
in the permit statute. See Cilek , 941 N.W.2d at 415 (reading tw o sections together to
determine plain meaning). The structure of th e arson statute supports this interpretation
because the permit section appears directly afte r the sections defining arson in the first
through fifth degrees. Minn. Stat. §§ 609.561-.564 (2016). And this conclusion is further
supported by the common meaning of the word “unlawful.” Black’s Law Dictionary 1850
(11th ed. 2019) (defining “unlawful” as “[n]ot authorized by law”); see also The American
Heritage Dictionary of the English Language 1876 (5th ed. 2011) (defining “unlawfully”
as “[n]ot lawful; illegal”).
7
Having defined the word “unlawfully” in the arson statute as “without authorization
under the permit statute,” we now consider whet her the state is required to prove that the
defendant acted without authorization as a separate element. A statutory clause requiring
the absence of a fact may be “either an element or an affirmative defense.” State v. Hall,
931 N.W.2d 737, 740 (M inn. 2019) (interpreting the phrase “without intent to effect the
death of any person”). To determine which is the case here, we turn to precedent
interpreting similar clauses. For ease of refe rence, we refer to such clauses requiring the
absence of a fact as “negative clauses.”
We begin with State v. Timberlake , in which the Minnesota Supreme Court
considered a negative clause in the context of a statute prohibiting possession of a pistol in
a motor vehicle. 744 N.W.2d 390, 394-95 (Minn. 2008). That statute provided that “[a]
person . . . who . . . possesses a pistol in a motor vehicle . . . without first having obtained
a permit to carry the pistol is guilty of a gross mi sdemeanor.” Minn. Stat. § 624.714,
subd. 1a (2006) (emphasis added). The question before the supreme court was whether the
phrase “without first having obtained a permit to carry” was an elemen t of the offense or
an exception to criminal liability. Timberlake, 744 N.W.2d at 394-95. In other words, to
prove a defendant guilty under this statute, did the state have to prove a negative—that the
person charged did not have a permit?
The supreme court, reaffirming its decision in State v. Paige,2 held that the state did
not bear the burden of proving that the defendant lacked a permit. Id. at 396-97. Instead,

2 The Timberlake court noted that it had first considered this provision in State v. Paige,
256 N.W.2d 298, 396- 97 (Minn. 1977). Id. Although the legislature had amended the
8
the phrase without first having obtained a permit to carry was an exception to—not an
element of—the crime of carrying a pistol in public. Id. at 397. Addressing how to
distinguish between an element of a crime and an exception, the court explained that “[i]n
order to place the burden of proving the exce ption on the defendant, a court must decide
that the act in itself, without th e exception, is ordinarily dang erous to society or involves
moral turpitude.” 3 Id. at 396-97 (quoting State v. Brechon , 352 N.W.2d 745, 749
(Minn. 1984) (quotation omitted)).
Applying this analysis, the supreme court concluded that possession of a firearm is
an act that is ordinarily dangerous to society. Id. The Timberlake court distinguished the
conduct of possessing a firearm from conduct in two cases where negative clauses were
construed as elements of an offense. Id. In State v. Burg , the supreme court concluded
that the phrase “without lawful excuse” was an element of the offense of felony nonsupport
of a child. 648 N.W.2d 673, 678-79 (Minn. 2002). And in Brechon, the supreme court
concluded that the phrase “without a claim of ri ght” was an element of criminal trespass.
352 N.W.2d at 750. But because possession of a firearm in public was dissimilar from

statute in the years between Paige and Timberlake, the Timberlake court concluded that
the amendments, which did not alter the “without a permit” language, did not overrule
Paige. Id. at 395-96.

3 The Brechon court described this inquiry as whether the negative clause was incorporated
into the definition of the offense. 352 N.W.2d at 749. A clau se is incorporated when the
offense cannot be clearly describe d if the exception is omitted. United States v. Cook ,
84 U.S. 168, 173 (1872). If the offense can be described without reference to the exception,
the defendant must prove its existence. Id. at 173-74. We note that the offense of
first-degree arson can be accurately describe d as “intentionally damaging or destroying a
dwelling with fire or explosives,” without reference to the existence or absence of a permit.
9
“nonpayment of child support or criminal trespass in terms of its potential danger to
society,” the court concluded that the negative clause in Timberlake was an exception to,
not an element of, the crime of possessing a pistol in public. 744 N.W.2d at 396-97.
Following the guidance in Timberlake, we turn to the first-degree arson statute
before us. Like the possessi on of a firearm in public, the ac t of destroying homes by fire
or explosives is “ordinarily dangerous to society.” Id. at 397 (quotation omitted). On the
spectrum of acts that jeopardize society, arson falls closer to (and perhaps beyond) the act
of carrying a firearm than do the acts of either nonpayment of child support or criminal
trespass. Compare id. with Burg , 648 N.W.2d at 678-79; Brechon, 744 N.W.2d at 750.
Accordingly, we conclude that the phrase “ unlawfully” in the arson statute presents an
exception to liability, not an element of arson. The burden of proving that exception (that
the defendant’s act is lawful because it is au thorized by the permit statute) falls on the
defendant, not on the state to prove the opposite. Timberlake, 744 N.W.2d at 396-97.
Still, Beganovic argues that State v. Clarin compels his reading of the arson statute.
913 N.W.2d 717 (Minn. App. 2018), rev. denied (Minn. Aug. 7, 2018). Clarin involved a
conviction for second-degree possession of methamphetamine. Id. at 719. A person who
“unlawfully possesses” the requisite amount of a drug is guilty of second-degree
controlled-substance crime. Id. (citing Minn. Stat. § 152.022, subd. 2(a)(1) (2014)). And
in this context, “unlawfully” is defined as “selling or possessing a controlled substance in
a manner not authorized by law.” Id. (citing Minn. Stat. § 152. 01, subd. 20 (2014)).
Beganovic argues that because the arson stat ute uses “identical” language (the word
10
“unlawfully”) to the statute at issue in Clarin, that case dictates his interpretation of the
arson statute.
But the language is not identical. Unlike the arson statute, the chapter containing
the controlled-substance statute applied in Clarin specifically defines the word
“unlawfully.” Id. And the Clarin court recognized that “p ossession of physician-
prescribed methamphetamine is lawful.” Id. at 720. Thus, the word “unlawfully” in the
controlled-substance statute carves out a ma nner of possession that is unlawful from the
lawful possession of prescribed medication. By contrast, setting fire to dwellings is not
generally lawful. Beganovic has not demonstrated that Clarin compels his interpretation.
Finally, Beganovic contends that State v. Mikulak supports his reading of the arson
statute. 903 N.W.2d 600 (Minn. 2017 ). But this case is inapposite. In Mikulak, the
supreme court held that a guilty plea to violating the predatory-offender registration statute4
must establish that the defendant “knowingly” violated the statute, meaning that the
defendant was aware of the obligation to register at the time of the violation. 903 N.W.2d
at 604-05. Beganovic does not explain why this general rule—that a prohibited action must
coincide with the specified mental-state element—would require us to adopt his view that
the state must prove that he “unlawfully” burned down his home.5

4 Minn. Stat. § 243.166, subd. 5(a) (2016).

5 We further note that the arson statute alrea dy contains a mental-state element, that the
defendant “intentionally” destro y the dwelling. Minn. Stat. §§ 609.561, su bd. 1, .02,
subd. 9(3) (2016) (defining “intentionally”).
11
In sum, “unlawfully” in the arson statute means “without authorization” as provided
for by the permit statute. And to prove a defendant guilty of first-degree arson, the state
does not bear the burden of proving that the defendant acted unlawfully as a separate
element. Instead, if the de fendant can show a permit, license, or written permission
complying with the perm it statute, the defendant has an affirmative defense to criminal
liability for arson. Accordingly, sufficien t evidence supports Beganovic’s conviction
because the state proved that he intentionally burned down his home, and he did not show
that he was permitted to do so.6
II. The district court did not abuse its discretion by denying Beganovic’s
durational-departure motion.

Beganovic contends that the district c ourt abused its discretion by denying his
motion for a downward durational departure. We review this claim for an abuse of the
wide discretion given to district courts in the im position of criminal sentences.
State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017). Only rarely would we reverse a
sentence that falls within the presumptive range. State v. Kangbateh, 868 N.W.2d 10, 14
(Minn. 2015).
A durational departure is a sentence that is shorter or longer than the presumptive
range prescribed by the Minnes ota Sentencing Guidelines. State v. Solberg ,

6 Beganovic also contends that the district court plainly erred by not instructing the jury
that the state was required to prove that he acted unlawfully. Because he did not object to
the district court’s jury instructions at tria l, we review the argum ent for plain error.
State v. Ezeka, 946 N.W.2d 393, 407 (Minn. 2020). And because we conclude that the
state was not required to prove that Beganovic acted unlawfully as a separate element, the
district court’s instruction here was not plainly erroneous.
12
882 N.W.2d 618, 623 (Minn. 2016). Only offense-related reasons may justify a durational
departure. Rund, 896 N.W.2d at 553. A durational departure is not justified unless the
defendant’s conduct was significantly less seri ous than the conduct typically associated
with the offense. Solberg, 882 N.W.2d at 624. When the defendant’s actions fit squarely
within the conduct prohi bited by the statute, the offense is not significantly less serious
than typical. Rund, 896 N.W.2d at 533; Solberg, 882 N.W.2d at 627.
At sentencing, Beganovic argued that the court should depart from the presumptive
felony sentence and instead sentence him to a gross-misdemeanor sentence so he would
not be deported. He further contended that his offense was less serious than a typical
first-degree arson because he damaged only his own property and did not injure anyone.
The district court denied Beganovic’s dur ational-departure motion. Beganovic’s
risk of deportation is not a proper basis for a durational departure. See State v. Peter ,
825 N.W.2d 126, 129-30 (Minn. App. 2012), rev. denied (Minn. Feb. 27, 2013). And the
court’s conclusion that Beganovic’s offense is not less serious than a typical first-degree
arson is supported by the caselaw given that many first-degree arson cases involve a
homeowner burning down their own hous e without causing harm to others. See, e.g. ,
State v. Giles, 322 N.W.2d 755, 756-57 (Minn. 1982); State v. Matthews, 425 N.W.2d 593,
594-95 (Minn. App. 1988); State v. Conklin , 406 N.W.2d 84, 85-86 (Minn. App. 1987).
13
Because Beganovic’s case is similar to these cases, he has not shown that the district court
abused its discretion by denying his durational-departure motion.7
III. The district court did not abuse its di scretion by requiring Beganovic to pay
restitution.

Beganovic contends that he should not have to pay restitution to the insurance
company because the company’s loss was not a direct result of his arson conviction. We
will not reverse a restitution award unless the district court abused its discretion.
State v. Andersen, 871 N.W.2d 910, 913 (Minn. 2015). An abuse of discretion occurs if
the district court’s decision is against logic and the facts in the record or based on an
erroneous view of the law. Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011).
A district court may require a defendant to pay restitu tion as part of a felony
sentence. Minn. Stat. § 609.10, subd. 1(5) (2020). In determ ining the amount of
restitution, the court must consider the loss sustained by the victim because of the offense.
Minn. Stat. § 611A.045, subd. 1(a) (2020). But the court may only order restitution for
losses that are directly caused by, or follow naturally from, the defendant’s conduct.
State v. Boettcher, 931 N.W.2d 376, 381 (Minn. 2019).
Here, the district court concluded that most of the insurance company’s losses were
a direct result of Beganovic’s offense. After Beganovic set fire to his home and then filed
an insurance claim, the comp any expended resources to i nvestigate the claim. These

7 Beganovic also asserts that the district c ourt failed to consider “offense-related facts”
supporting his departure motion. But the record reflects that the district court considered
the offense-related facts and rejected his argument.
14
expenditures were directly caused by Beganovic’s conduct. Accordingly, the court ordered
Beganovic to pay $9,324.77 in restitution to the insurance company.
The district court did not abuse its disc retion in doing so. Payments made by
insurance companies related to criminal offenses are economic losses for which the
companies may be entitle d to restitution. State v. Jola , 409 N.W.2d 17, 19 (Minn.
App. 1987). Beganovic attempts to distinguish his case fro m one in which an insurance
company paid out a claim, as opposed to incurring costs before denying the claim. But this
distinction has no basis in logic or caselaw because whether or not the insurance company
paid its investigators or Beganovic, the losses were still a direct result of the arson.
IV. Beganovic was sentenced with an incorrect criminal-history score.
Finally, Beganovic contends that he must be resentenced with a criminal-history
score of zero because he was erroneously a ssigned a custody-status point. The state
agrees.8 We interpret the Minnesota Se ntencing Guidelines de novo. State v. Strobel ,
932 N.W.2d 303, 306 (Minn. 2019).
In 2017, a defendant who wa s on probation for a non-traffic gross misdemeanor at
the time of an offense could be assigned a cu stody-status point. Minn. Sent. Guidelines
2.B.2.a (2017). But in 2019, the guidelines were amended so that such a defendant received
only a partial, not a full, custody-status point. Minn. Sent. Guidelines 2.B.2.a (Supp. 2019).
Under the amelioration doctrine, a defendan t whose offense was committed before the
amendment and for whom final judgment has not been reached is entitled to be sentenced

8 Although the parties ag ree on this issue, we are obligat ed to decide cases in accordance
with the law. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).
15
under the amended version of the Guidelines. State v. Robinette , 964 N.W.2d 143, 151
(Minn. 2021).
The guidelines provide that partial fe lony points are rounded down but do not
indicate whether partial custody-status point s are rounded down as well. Minn. Sent.
Guidelines 2.B.1.i (2017). To resolve this uncertainty, the Minnesota Sentencing
Guidelines Commission issued interim gui dance instructing c ourts to follow our
nonprecedential opinion in State v. Eubanks and disregard a partia l custody-status point
when determining the presumptive sentence. 9 No. A19-2042, 2021 WL 318260, at *6
(Minn. App. Feb. 1, 2021). We now adop t the reasoning of the commission’s interim
guidance and hold that a partial custody-st atus point should be disregarded when
calculating the presumptive sentence.
Beganovic was given a full cu stody-status point because he was on probation for a
gross misdemeanor at the time of the offense. But because Beganovic was not tried until
2020, he should have only received a partial point and that partial point should not have
been considered in calculating Beganovic’ s presumptive sentence, according to the
commission’s interim guidance. Robinette, 964 N.W.2d at 151. Because Beganovic’s
criminal-history score was inco rrectly calculated, and because “a sentence based on an
incorrect criminal history score is an ille gal sentence,” we reverse and remand for

9 Minn. Sent. Guidelines Comm’n, Half Custody Status Point Problem – Interim Guidance
(Jan. 15, 2022), https://mn.gov/senten cing-guidelines/assets/20220115-MSGC-
PartialPointsinCriminalHistory_tcm30-515455.pdf.
16
resentencing with the correct criminal-history score. State v. Maurstad, 733 N.W.2d 141,
147 (Minn. 2007).
DECISION
“Unlawfully” in Minnesota Statutes secti on 609.561, subdivision 1, means without
authorization as described in Minnesota Statutes section 609.564. As “unlawfully” is not
an element of arson, the state does not bear the burden of proving that the defendant acted
unlawfully. And because the state proved that Beganovic intentionally set fire to his home,
sufficient evidence supports Be ganovic’s first-degree arson conviction. Further, the
district court was within its discretion to deny Beganovic’s durational-departure motion
and order him to pay restitution to the insu rance company. But because Beganovic was
sentenced with an incorrect criminal-history score, we reverse and remand for
resentencing.
Affirmed in part, reversed in part, and remanded.