A21-0480

1
STATE OF MINNESOTA

IN SUPREME COURT

A21-0477
A21-0480

Court of Appeals Thissen, J.
Concurring, McKeig, Chutich, Moore, III, JJ.

State of Minnesota,

Respondent,

vs. Filed: June 14, 2023
Office of Appellate Courts
Irfan Beganovic,

Appellant.

________________________
Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, Saint Paul,
Minnesota; and

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

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

________________________
S Y L L A B U S
1. The term “unlawfully” in the first-degree arson statute, Minn. Stat.
§ 609.561, subd. 1 (2022), creates an element requiring the State to prove a fire was started
without authorization.
2
2. The evidence in this case was sufficient to prove beyond a reasonable doubt
that the fire was started unlawfully.
3. Unobjected-to failure to instruct the jury on the element of unlawfulness was
not reversible error.
Affirmed.
O P I N I O N
THISSEN, Justice.
This case asks the court to clarify whether the State must prove that a person charged
with first-degree arson acted “unlawfully” when setting fire to a dwelling. Minn. Stat.
§ 609.561, subd. 1 (2022). Contrary to the court of appeals, w e conclude that the use of
“unlawfully” in section 609.561, subdivision 1, creates an element of the crime of
first-degree arson that the State must prove. But we nonetheless affirm the conviction
because we conclude that the State met its burden to prove beyond a reasonable doubt that
Beganovic acted unlawfully in setting fire to his hous e and that the unobjected-to failure
to instruct the jury on the element was not reversible error. Therefore, we affirm the
decision of the court of appeals but on different grounds.
FACTS
In the early morning of June 1, 2018, appellant Irfan Beganovic’s house burned
down. Beganovic called 911 at approximately 1:30 a.m. to report the fire. Following the
fire he filed an insurance claim, prompting an investigation by his insurance company.
Beganovic did not claim that he started the fire, either on the day of the fire or when he
filed his insurance claim.
3
At the same time, a fire marshal conducted a separate investigation. Both
investigators independently reached the conclusion that the fire was started intentionally.
They based their conclusion on the fire’s multiple points of origin, as well as ruling out any
other causes (such as faulty appliances or wiring).
The State charged Beganovic with first-degree arson under section 609.561,
subdivision 1. Under this statute, a person is criminally liable if he “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 . . . .” Minn. Stat. § 609.561, subd. 1. Beganovic
pleaded not guilty and the case proceeded to a jury trial in November 2020.
At trial, investigators testified to their conclusions that the fire was intentionally
started. The investigators told the jury that, based on their training and experience, the
appliances in the house could not have started the fire. Beganovic’s wife and daughter
both testified that they were sleeping on the couches in the living room on the night of the
fire. Although Beganovic’s daughter unexpectedly testified during trial that she started the
fire by smoking a cigarette, the deputy fire marshal and fire investigators explained that the
daughter’s claim would not explain the other two origin points of the fire. Beganovic
continued to contend that the fire was started by faulty appliances or wiring. He also stated
that his family was inside the house at the time the fire started. On the day of the fire and
when he later filed his insurance claim, Beganovic never claimed that he started the fire or
that the burning of his house was lawful because he was authorized to do so. The jury
found Beganovic guilty.
4
Beganovic appealed, arguing that the word “unlawfully” in the first -degree arson
statute creates an element of the offense that the State must prove beyond a reasonable
doubt. According to Beganovic, because the State presented no evidence to show that the
burning of his house was “unlawful,” the State failed to establish all elements of the crime
of first-degree arson. State v. Beganovic, 974 N.W.2d 278, 283–84 (Minn. App. 2022).
The court of appeals rejected Beganovic’s argument. The court of appeals read
Minn. Stat. § 609.561 (2022) (the arson statute) and Minn. Stat. § 609.564 (2022) (the
permit statute)1 together such that “unlawful” means that a defendant did not have a permit,
license, or other written authorization to start the fire from a public authority as specifically
provided in section 609.564. Beganovic, 974 N.W.2d at 284–85. The court of appeals held
that Beganovic had the burden of proving that he had a permit, license, or other written
authorization to start the fire. Id. at 285. The court of appeals reasoned that the burden of
proof rested with Beganovic because the act of destroying a house by fire or explosives is
“ordinarily dangerous to society.” Id. at 284–85 (citation omitted) (internal quotation
marks omitted). Because Beganovic did not show that he was permitted to burn down his
house, the court of appeals held that sufficient evidence supported his conviction. Id. at
286.

1 Section 609.564 states: “A person does not violate section 609.561, 609.562,
609.563, or 609.5641 if the person 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.” The language of the provision has not changed since 2018 when the fire at issue
in this case occurred.
5
ANALYSIS
We are asked to decide whether the State met its burden under the first-degree arson
statute, Minn. Stat. § 609.561. The statute provides that “[w]hoever 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 . . . .” Minn.
Stat. § 609.561, subd. 1.
To resolve this dispute, we first assess the meaning of the word “unlawfully” as
used in section 609.561, subdivision 1, to determine whether “unlawfully” is an element of
first-degree arson or a defense. Second, because we conclude that “unlawfully” is an
element of first-degree arson, we analyze whether the prosecution met its burden to prove
beyond a reasonable doubt that Beganovic acted unlawfully. Finally, we address whether
failing to instruct the jury that the State was required to prove Beganovic acted unlawfully
was reversible error.
Beganovic’s argument is essentially that the evidence provided at trial is insufficient
to support his conviction because the State failed to prove that he “unlawfully” burned
down his house. When a sufficiency-of-the-evidence claim turns on the interpretation of a
statute, we review that interpretation de novo. State v. Bowen, 921 N.W.2d 763, 765
(Minn. 2019).
I.
A.
Before we reach the question of whether “unlawfully” is an element of first-degree
arson, we must determine what the term “unlawfully” means in section 609.561. This is a
6
question of statutory interpretation, which requires us “to ascertain and effectuate the
intention of the legislature.” Minn. Stat. § 645.16 (2022). To do so, we first examine the
plain meaning of the text—the word’s plain and ordinary meaning—and we may consult
dictionary definitions as part of that inquiry. Buzzell v. Walz, 974 N.W.2d 256, 262
(Minn. 2022).
Unlawful is defined as “[n]ot authorized by law . . . [c]riminally punishable . . .
[i]nvolving moral turpitude.” Unlawful, Black’s Law Dictionary (11th ed. 2019). Of these
various formulations, “not authorized by law” is the most apt. See Bryan A. Garner, A
Dictionary of Modern Legal Usage 902 (2d ed. 1995) (noting that the sense of unlawful as
“unauthorized by law” is most common and the senses of unlawful as criminally punishable
and involving moral turpitude “so complicate matters in using this term that they lessen its
utility”). Criminally punishable is redundant as the statute itself creates a criminal
punishment. Moral turpitude seems inappropriate: partly because it is awkward for
section 609.561 to read “whoever [with moral turpitude ] by means of fire or explosives,
intentionally destroys or damages any building that is used as a dwelling” and partly
because we have not decided if arson is an act of moral turpitude. Cf. In re Conley ,
248 N.W. 41, 42 (Minn. 1933) (concluding that a violation of Minnesota law is not a de
facto act of moral turpitude). Therefore, “unlawfully” in section 609.561 could reasonably
be read broadly to mean a fire not authorized by law.
Furthermore, the term “unlawfully” is not modified or limited in any way, which
suggests that the term is to be read broadly. We will not read into the statute any modifying
or limiting language. Gen. Mills, Inc. v. Comm’r of Revenue , 931 N.W.2d 791, 800
7
(Minn. 2019) (noting that we cannot add words or meaning to a statute that were
intentionally or inadvertently omitted).
The approach taken by the court of appeals and urged upon us by the parties does
just that; it adds language to section 609.561 that modifies or limits the term “unlawfully”
used by the Legislature. Following the court of appeals, the parties in their briefing before
us advance the argument that we should limit the term “unlawfully” in the first-degree
arson statute to mean fires set without the authorization contemplated by section 609.564.
In other words, the only way to prove a fire was or was not set “unlawfully” (regardless of
who has the burden of proof) is to show that the defendant had one of the specific types of
authorization set forth in section 609.564.2 To be clear, we agree that possession of a
validly issued license or permit or written permission as described in section 609.564 is
one way to show that a defendant’s act was not unlawful; we do not agree that it is the
exclusive way.
To reach the conclusion that the term “unlawfully” exclusively means that a
defendant did not have a license, permit, or written permission to start the fire under
section 609.564, the court of appeals relied on our decision in Cilek v. Off. of Minn. Sec’y
of State, 941 N.W.2d 411, 415 (Minn. 2020), for the proposition that we may read multiple
statutory sections together to determine its plain meaning. Beganovic, 974 N.W.2d at

2 We are not bound by the arguments made by the parties. State v. Hannuksela,
452 N.W.2d 668, 673 n.7 (Minn. 1990) (“[I]t is the responsibility of appellate courts to
decide cases in accordance with law, and that responsibility is not to be diluted by counsel’s
oversights, lack of research, failure to specify issues or to cite relevant authorities.”
(citation omitted) (internal quotation marks omitted)).
8
283–84. In Cilek, we examined whether a Minnesota voter must be given access to certain
information contained in statewide registered voter lists. 94 1 N.W.2d at 414–15. The
question required us to consider the Minnesota Data Practices Act, which generally makes
all government data public unless classified as not public, Minn. Stat. § 13.03, subds. 1, 3
(2022), and Minnesota election law, particularly Minn. Stat. § 201.091 (2022), which
allows public access to some, but not all, information in the registered voter lists. Cilek,
941 N.W.2d at 415–16. The information the voter sought was no t classified as not public
anywhere in the Data Practices Act. Id. at 414–16. Consequently, the Data Practices Act
suggested that the information the voter sought was public. Id. On the other hand,
section 201.091 suggested that the information was not public. Id.
We resolved the apparent conundrum by looking to two provisions of the Data
Practices Act. Id. at 415. We first considered Minn. Stat. § 13.01, subd. 5(a) (2022), which
provides that “sections referenced in [the Data Practices Act] that are codified outside this
chapter classify government data as other than public, place restrictions on access to
government data, or involve data sharing.” We also considered Minn. Stat. § 13.60 7,
subd. 6 (2022), which expressly directs that “[a]ccess to registered voter lists is governed
by section 201.091.” Cilek, 941 N.W.2d at 415. Accordingly, in light of the express
language in the Data Practices Act that said that section 201.091 of the election law, and
not the Data Practices Act itself, governed public access to voter registration records, we
held that the voter could not access the information that was not made public under
section 201.091. Id. at 416. Stated otherwise, Cilek does not create a general rule that
multiple sections of a statute may be read together to determine its plain meaning. Instead,
9
Cilek stands for the unremarkable proposition that when a statute expressly says, “look at
statute A to resolve this question and not statute B,” we should use statute A to resolve the
question.
That is not the same question posed in this case. Nothing in section 609.561 directs
us to look to another statute to resolve the question of the meaning of “unlawfully.”
The Legislature has provided us with guidance for understanding its intent. Minn.
Stat. § 645.17 (2022). Among other things, we may presume that the Legislature generally
“intends the entire statute to be effective and certain.” Minn. Stat. § 645.17(2).
We have made clear, however, that the breadth of this general guidance depends
upon how connected the statute we are interpreting is to other statutes. We recognize that
when two statutes were enacted at the same time and for the same purpose, we may
properly consider both in our effort to understand the plain language of the
statute—whether more than one reasonable interpretation of the language exists. We refer
to this as the whole statute canon. State v. Fugalli, 967 N.W.2d 74, 80 (Minn. 2021)
(describing the whole statute canon and noting that it applies when determining whether
text is ambiguous). And that principle makes sense as a method for understanding what
the Legislature intended when it enacted a statute. When two parts of a statute are enacted
at the same time and for the same purpose, the Legislature has all of those provisions before
it as it considers the legislative solution to the particular problem, including the language
used to set forth that solution. Accordingly, it is reasonable to assume that all of the
provisions inform the legislators’ understanding of the text of the statute it enacts. See
generally State v. Prigge, 907 N.W.2d 635, 640 (Minn. 2018).
10
For that same reason, when trying to understand the plain meaning of a statute, we
cannot consider other statutes that were not enacted in the same legislative act as the
provision we are interpreting. The so-called related statutes canon, which allows us to
construe together two statutes that were enacted separately but which share a common
purpose and subject matter, only applies after we have determined that the statute we are
interpreting has more than one reasonable meaning. Fugalli, 967 N.W.2d at 80 (describing
the related statutes canon and stating that it applies after we have determined that statutory
text is susceptible to more than one reasonable interpretation ). Because we have
determined that the plain meaning of the word “unlawfully” in section 609.561 broadly
means “not authorized by law” without any modifiers or limitations, we conclude that the
related statutes canon does not apply and that we cannot rewrite section 609.561 to read
“unlawfully [due to lack of authorization under section 609.564] . . . .”
This conclusion is also supported by three other text-based clues that tell us that an
interpretation that limits “unlawfully” to lack of authorization under section 609.564 is not
the proper one. First, the decision to include “unlawfully”—the term that remains in the
current law and which we are interpreting today—in the first-degree arson statute was made
in 1976. See Act of Apr. 2, 1976, ch. 124, § 4, 1976 Minn. Laws 281, 282 (codified as
amended at Minn. Stat. § 609.561 (202 2)). In 1976, the Legislature amended the arson
statute to split arson offenses into degrees and jettisoned the previous distinction between
“simple” versus “aggravated” arson. Compare Minn. Stat. §§ 609.56, 609.565 (1974), with
Act of Apr. 2, 1976, ch. 124, § 4, 1976 Minn. Laws 281, 282 (codified as amended at Minn.
Stat. § 609.561 (2022)). In doing so, the Legislature used the same language as the prior
11
statute—“[w]hoever, by means of fire or explosives, intentionally destroys or damages [a
dwelling]”—but expressly added the word “unlawfully.” See Minn. Stat. §§ 609.56,
609.565 (1974); Act of Apr. 2, 1976, ch. 124, § 4, 1976 Minn. Laws 281, 282 (codified as
amended at Minn. Stat. § 609.561 (2022)).3 The Legislature plainly intended to add a new
requirement—that the defendant must have acted in a way unauthorized by law—to the
definition of the crime. We therefore must give meaning to “unlawfully” as a distinct
requirement under the statute as it existed in 1976. See S tate v. Galvan- Contreras,
980 N.W.2d 578, 585 (Minn. 2022) (stating that we will not read a statute so that a word
is superfluous). And the Legislature could not have intended the term “unlawfully” to have
been limited to the circumstances defined in section 609.564 because section 609.564 was
not adopted until 1985 —9 years after the word “unlawfully” was written into the arson

3 By way of background, the term “unlawfully” is currently used in the first-degree,
second-degree, and third-degree arson statutes, but not the fourth -degree, fifth-degree, or
wildfire arson statutes. Compare Minn. Stat §§ 609.561–.563 (2022), with Minn. Stat.
§§ 609.5631–.5632, 609.5641 (2022). The term was added to the definition of first-,
second-, and third-degree arson in 1976. See Act of Apr. 2, 1976, ch. 124, §§ 4–6, 1976
Minn. Laws 281, 282– 83 (codified as amended at Minn. Stat. §§ 609.561–.563 (2022)).
As just noted above, the previous version of the arson statute did not include the word
“unlawfully.” Further, the 1976 legislation created only three degrees of arson—the three
that include the word “unlawfully.” Id. The wildfire arson statute was enacted in 1990
and does not include the word “unlawfully.” Act of Apr. 20, 1990, ch. 478, § 2, 1990
Minn. Laws 1031, 1032 (codified as amended at Minn. Stat. § 609.5641). At the same
time, the statute excluding certain fires set under authority, permit, or other written
permission from criminal liability was amended to include wildfires. Act of Apr. 20, 1990,
ch. 478, § 1, 1990 Minn. Laws 1031, 1032 (codified as amended at Minn. Stat. § 609.564
(2022)). The fourth- and fifth-degree arson statutes were enacted in 1998 and did not
include the word “unlawfully.” Act of Apr. 6, 1998, ch. 367, §§ 19, 20, 1998 Minn. Laws
666, 694 (codified as amended at Minn. Stat. §§ 609.5631–.5632 (2022)). The Legislature
did not amend section 609.564 at the time to exclude fires set under authority of a permit,
license, or written permission from prosecution for fourth- and fifth-degree arson.
12
statute. See Act of May 17, 1985, ch. 141, § 4, 1985 Minn. Laws 396, 398 (codified as
amended at Minn. Stat. § 609.564 (2022)). In short, “unlawfully ” must have meant
something in the period before section 609.564 was enacted, suggesting that the meaning
of “unlawfully” cannot be entirely or exclusively linked to, and limited by, section 609.564.
When the Legislature added section 609.564 in 1985, it did not also amend section 609.561
to refer to section 609.564 or limit the word “unlawfully” by saying that a person acts
“unlawfully” unless he complies with section 609.564.
Second, the text of section 609.564, the authorization statute, also applies on its face
to wildfire arson, Minn. Stat. § 609.5641 (2022), a statute which does not contain the word
“unlawfully” in its definition of the crime. It would be odd to read section 609.564 as an
expression of legislative intent to modify or limit the word “unlawfully” in section 609.561
when section 609.564 applies equally to a criminal statute that does not contain the word
“unlawfully.”
And finally, unlike Minn. Stat. § 624.714, subd. 1a (2022), which criminalizes
carrying a firearm in public “without first having obtained a permit to carry,” it is not clear
under Minnesota law that section 609.564 is the sole means to claim a fire was started
lawfully. Although the authorization statute is one way to avoid criminal liability for
setting fire to a dwelling, the statute does not foreclose the possibility of other lawful
excuses.
In summary, a person acts “unlawfully” when he sets a fire in a manner not
authorized by law. Accordingly, we read the word “unlawfully” broadly to mean
13
unauthorized by law and do not limit the word’s meaning to fires set without a permit,
license, or written authorization as set forth in section 609.564.
B.
Having determined that “unlawfully” as used in section 609.561 means not
authorized by law, we turn to the central dispute in this case: is “unlawfully” an element of
first-degree arson under section 609.561? If “unlawfully” is an element of the offense,
rather than an exception to criminal liability, then it is something that the State was required
to prove beyond a reasonable doubt. See State v. Hall, 931 N.W.2d 737, 740 (Minn. 2019).
This is a question of statutory interpretation which we review de novo. Id. Accordingly,
we ask whether the Legislature intended the statutory language that a person must act
“unlawfully” to be convicted of first-degree arson to be an element of the offense or an
exception to criminal liability. See State v Khalil, 956 N.W.2d 627, 641 (Minn. 2021)
(“Within the limitations imposed by the federal and state constitutions, the Legislature has
the power to define crimes and the punishment for crimes (including the terms for
confinement and parole), and the judiciary interprets and carries out those legislative
commands.”). For the reasons addressed below, tenets of statutory interpretation reflect
that the Legislature intended “unlawfully” to be an element of first-degree arson.
Furthermore, this result is consistent with the court’s precedents analyzing the distinction
between an element of a crime and an exception to criminal liability in other statutes.
1.
The text and structure of the language are strong clues to the Legislature’s intent.
See Minn. Stat. §§ 645.08, 645.16 (2022). The first clause in section 609.561,
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subdivision 1, defining the crime of first-degree arson reads, “Whoever unlawfully by
means of fire or explosives . . . .” As a textual matter, the word “unlawfully” in
section 609.561 is not set apart from the language in the statute as an independent
clause—the word is not even offset by punctuation. Rather, the word “unlawfully” is
integrated into and among the other elements in the statute defining the crime. This
supports “unlawfully” being an element of the crime that the State must prove beyond a
reasonable doubt.
Further, as earlier noted, the Legislature in 1976 deliberately added “unlawfully” to,
and in the middle of, the preexisting statutory description of the crime which stated that
“[w]hoever, by means of fire or explosives, intentionally destroys or damages [a
dwelling] . . . .” Compare Minn. Stat. §§609.56, 609.565 with Act of Apr. 2, 1976,
ch. 124, § 4, 1976 Minn. Laws 281, 282 (codified as amended at Minn. Stat. § 609.561
(2022)). That too suggests that “unlawfully” is an element of the crime and not an
exception to criminal liability. If the Legislature intended that “unlawfully” be considered
an exception to criminal liability rather than an element, one would have expected it to
draft the statute differently by setting the exception off in a separate, non-integrated clause.
See Buzzell, 974 N.W.2d at 265 (rejecting a statutory interpretation argument on the basis
that, had the Legislature intended a particular meaning, it would have chosen a more direct
textual path); see, e.g., Minn. Stat. § 624.714, subd. 1a (“A person . . . who carries, holds,
or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about [his] clothes
15
or the person, or otherwise in possession or control in a public place . . . without first having
obtained a permit to carry the pistol is guilty of a gross misdemeanor.” (emphasis added)).4
2.
This analysis of the statutory language of section 609.561 to glean legislative intent
is consistent with how we have previously interpreted other statutes that require the absence
of a fact . See Hall, 931 N.W.2d at 740 (explaining that a statutory clause requiring the
absence of a fact may be either an element or defense). 5 The first-degree arson statute’s

4 As discussed in the next section, the court in State v. Paige, held that the “without a
permit” provision in Minn. Stat. § 624.714 operated as an exception rather than as an
element. 256 N.W.2d 298, 303 (Minn. 1977). And in State v. Timberlake, “we
reaffirm[ed] our interpretation of Minn. Stat. § 624.714 set forth in Paige.” 744 N.W.2d
390, 397 (Minn. 2008).

5 Our job is to determine the intent of the Legislature regarding section 609.561, the
specific statute that we are interpreting. Prior cases interpreting other statutes that similarly
require the absence of a fact are useful by analogy (highlighting the types of clues we may
consider in conducting such an analysis), but our focus must be on the statute in front of us
in a particular case and whether the Legislature intended a word or phrase in that particular
statute to be an element or an exception. This approach is especially apt when interpreting
language in a statute that was enacted before we decided the first case in the string of cases
we discuss below.
In particular, we should be cautious before we impose general presumptions about
legislative intent drawn from prior analogous cases dealing with different statutes,
particularly where the presumption is not articulated in those cases. For instance, the
concurrence argues that we should adopt a broad presumption that the Legislature always
intends that statutory language that allows a person to avoid criminal liability for the act
described in a criminal statute if he is authorized by the government to do the act creates
an exception, but language that allows a person to avoid criminal liability for the act
described in a criminal statute if he is authorized by someone other than the government to
do the act creates an element of the crime. Such an approach has no basis in anything
having to do with the intent of the Legislature when it enacted the language of the particular
statute we are interpreting.
16
inclusion of the term “unlawfully” is such an absence-of-a-fact provision, by requiring that
a person acted in a manner not authorized by law.6
We first addressed an absence of fact statutory requirement in State v. Paige, where
we evaluated a statute that prohibited carrying a firearm “without a permit.” 256 N.W.2d
298, 303 (Minn. 1977); see also Minn. Stat. § 624.714, subd. 1 (1976). 7 The defendant
claimed that the language “without a permit” created an element of a crime that the State
was required to prove. Paige, 256 N.W.2d at 303. We disagreed. We held that “[t]he
better view is that ‘without a permit’ is an exception,” because “[t]here] is nothing
inherently unfair in requiring persons charged under the statute to present their permits.”
Id. We further reasoned that the statutory provision itself included a “general prohibition,”
and stated that “[t]he only exception to this rule is for persons who have demonstrated a
need or purpose for carrying firearms and have shown their responsibility to the police in
obtaining a permit.” Id.
We limited the holding in Paige by clarifying that the ultimate burden of proving
beyond a reasonable doubt that the defendant did not have a permit to carry a firearm
remains with the State. Id. at 304. Under Paige, a person seeking to avoid criminal liability
under Minn. Stat. § 624.714, subd. 1, had to establish a prima facie case showing that he

6 The principle announced in State v. Stokely , 16 Minn. 282 (Minn. 1871), and its
progeny, is not implicated in this case because a person who sets an authorized fire does
not commit an offense, much less a more serious offense. See Hall, 931 N.W.2d at 742
(distinguishing the Stokely and Brechon lines of cases).

7 The statute provided: “A person . . . who carries, holds or possesses a pistol . . . in a
public place or public area without first having obtained a permit to carry the pistol is guilty
of a gross misdemeanor.” Minn. Stat. § 624.714, subd. 1 (1976).
17
had a permit to possess the firearm. Paige, 256 N.W.2d at 304. Essentially, the defendant
had to come forward with some evidence that he had a permit to carry. The burden then
shifted “back onto the state to show the invalidity of the permit, or violation of the terms
of the permit.” Id. We reasoned that “[o]nce the defendant has come forward initially with
evidence of the permit, the state’s difficulty in ‘proving a negative’ is alleviated, making it
reasonable for the state to disprove the defense.” Id.
We next addressed an absence of fact statutory requirement in State v. Brechon,
352 N.W.2d 745 (Minn. 1984), where we considered a trespassing statute, Minn. Stat.
§ 609.605(5) (1982), which provided “[w]hoever intentionally does any of the following is
guilty of a misdemeanor . . . (5) Trespasses upon the premises of another and, without
claim of right, refuses to depart therefrom on demand of the lawful possessor thereof.”
(Emphasis added.) We were tasked with determining whether the words “without claim of
right” created an element of the offense the State had to prove. Brechon, 352 N.W.2d at
748. We stated the case had three possible outcomes: (1) that “without claim of right” was
an element of the offense the State had to prove beyond a reasonable doubt; (2) that the
language created an ordinary defense, which would require the defendant to present
evidence, but would keep the burden of persuasion on the State to disprove the defense
beyond a reasonable doubt (essentially the result in Paige); or (3) that the language created
an affirmative defense, in which the defendant would take on the burden of establishing
the defense by a preponderance of the evidence. Id. at 749.
We further explained how we determine which of the three categories statutory
language that requires proof of an absence of a fact falls into. First, we stated that the
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analysis for determining whether such language creates an element or an exception is
textual: whether the language requiring proof of absence of a certain fact “is so
incorporated with the clause defining the offense that it becomes in fact a part of the
description.” Id. at 749 (citation omitted) (internal quotation marks omitted); see generally
Minn. Stat. § 609.095(a) (2022) (“The legislature has the exclusive authority to define
crimes and offenses . . . .”). If it is so incorporated with the clause defining the offense that
it becomes in fact a part of the description, it is an element.
If the language is found to be an exception, the court must then determine if the
exception is an ordinary defense (requiring the defendant to present evidence that the fact
exists while leaving the burden of persuasion to disprove the existence of the fact on
the State) or an affirmative defense (which shifts the burden of proof that the fact
exists entirely to the defendant). Brechon, 352 N.W.2d at 749. To make that second
determination—which has to do with process and the fairness of court proceedings— a
court should consider if “the act in itself, without the exception, is ‘ordinarily dangerous to
society or involves moral turpitude’ and that requiring the state to prove the acts would
place an impossible burden on the prosecution.” Id.
In Brechon, we reached our holding under the first part of the analysis, concluding
that the language “without claim of right” was “integral to the definition of criminal
trespass in Minnesota” and held that “ ‘without claim of right’ is an element the state must
prove beyond a reasonable doubt.” Id. at 750. Accordingly, we did not need to reach the
second part of the analysis. Consequently, we placed the burden of proof and persuasion
19
on the State to prove that the defendant did not have a claim of right to be on the property.
Id.8
In other words, after Brechon, the question of whether the language requiring proof
of absence of a fact is an element turns on whether the words are so incorporated with and
integrated into the clause defining the offense that it becomes a part of the description of
the offense. If a court determines that the language requiring proof of an absence of a fact
is an exception to criminal liability, then the court assesses (1) whether the act that creates
criminal liability is ordinarily dangerous to society or involves moral turpitude, and
(2) whether requiring the State to prove the absence of a fact would place an impossible
burden on the State. Id. at 749. If both of those factors are shown, then the language
requiring proof of an absence of a fact may be treated as an affirmative defense rather than
an ordinary defense. Id.
We reaffirmed our Brechon analysis in In re L.Z., 396 N.W.2d 214 (Minn. 1986),
and State v. Burg, 648 N.W.2d 673 (Minn. 2002). In re L.Z. was a case about the
admissibility of certain school records under the juvenile offense of habitual truancy. We
did not thoroughly discuss the distinction between element and defense. 396 N.W.2d at
220–21. But we did place the burden for showing that a child was absent “without a lawful

8 In Brechon, we further stated that the State can prove its case by coming forward
with evidence that would allow a reasonable factfinder to infer that there could be no claim
of right by defendant. 352 N.W.2d at 750. We will discuss this aspect of the case in more
detail below.
20
excuse” under the habitual truancy statute on the State and did not require the defendant to
first bring forward any proof that she had a lawful excuse. Id. at 221. 9
In Burg, we were asked to consider the phrase “without lawful excuse” in a statute
criminalizing the failure to pay court-ordered child support.10 Burg, 648 N.W.2d at 678.
We held that “without lawful excuse” was embedded into the definition of the offense and
that this embedded language “demonstrated [the Legislature’s] intent to include the
absence of a lawful excuse as one of the facts necessary for a conviction.” Id. The court
addressed the ruling in Paige directly, stating that:
When the legislature in this manner includes the absence of a fact in the
definition of an offense, the absence of that fact is generally treated as an
element of the offense. Although we have not universally applied this
rule, see State v. Paige, 256 N.W.2d 298, 302–04 (Minn. 1977) . . . our more
recent cases have consistently treated such language as creating an element
of an offense, see In re Welfare of L.Z., 396 N.W.2d 214, 218 (Minn. 1986);
Brechon, 352 N.W.2d at 750.

Id. at 678–79. Burg recognized that Paige had found the absence of a fact to be an
exception, but did not address the rationale behind the “non-universal” application of the
rule in Paige in comparison to cases like Brechon, L.Z., and Burg where the
absence-of-a-fact requirement was determined to be an element of the offense.

9 The statute defined a habitual truant as a child “absenting himself from attendance
at school without lawful excuse” for the required number of days. In re L.Z., 396 N.W.2d
at 216 n.1 (quoting Minn. Stat. § 260.015, subd. 19 (1984)). We also held that the State
had the burden to prove that the child volitionally absented himself and demanded more
from the State to prove that element. Id. at 221.

10 The statute provided: “Whoever is legally obligated to provide care and support to
a . . . child . . . and knowingly omits and fails without lawful excuse to do so is guilty of a
misdemeanor . . . .” Burg, 648 N.W.2d at 678 (quoting Minn. Stat. § 609.375 (1998)).
21
Although our conclusion that the absence-of-a-fact language in the statute addressed
in Paige created an exception rather than an element of the offense is different than the
conclusion reached about different statutes in the Brechon line of cases, our analysis in
Paige is consistent with the rule articulated and applied in those other cases. In Paige, we
examined the language and structure of section 624.714 and concluded that the statute
created a general prohibition on carrying a firearm and separately identified in the same
statute only one exception for those who have gone through the process of obtaining a
permit to carry; a permitting process that itself was explicitly set forth in section 624.714.
256 N.W.2d at 303. The words “without first having obtained a permit to carry the pistol”
were not part of the description of the offense . Minn. Stat. § 624.714 (1976). The phrase
requiring the absence of a fact followed the description of the offense in the statutory text.
Moreover, the la nguage the Legislature used in section 624.714 directly referred to the
exclusive process to obtain a permit that was set forth, immediately, in the same statute.11
That is a textual analysis and it is consistent with the inquiry in our other cases focusing on
whether the statutory language conveys the Legislature’s intent to create an element of a
crime.
While we did not distinguish between an “ordinary defense” and an “affirmative
defense” in Paige, the outcome in Paige plainly demonstrated we considered the language

11 We also observed in Paige that placing an initial burden of providing prima facie
evidence of a permit to carry on the defendant would not be so unfair as to violate due
process. Paige, 256 N.W.2d at 303 (citing State v. Bott, 246 N.W.2d 48 (Minn. 1976), for
the principle that it does not always violate due process to place the burden of proving an
affirmative defense on the defendant).
22
“without a permit” to be an ordinary defense rather than an affirmative defense.
256 N.W.2d at 304 (holding that defendant must come forth with prima facie evidence that
he had a permit to carry a firearm, but State retains burden of proving defendant lacked a
permit beyond a reasonable doubt); see Brechon, 352 N.W.2d at 749 (noting that in Paige
we found that the language “without a permit” created the type of exception that required
the defendant to come forward with prima facie evidence while leaving the State with the
ultimate burden of persuasion beyond a reasonable doubt). We concluded in Paige that it
was reasonable to leave the ultimate burden of proving beyond a reasonable doubt that the
defendant did not have a permit to carry a firearm on the State. 256 N.W.2d at 304. The
second requirement for transforming an ordinary defense into an affirmative defense—it
would be impossible for the State to prove the absence of a fact— was not satisfied. Id.
(“Once the defendant has come forward initially with evidence of the permit, the state’s
difficulty in ‘proving a negative’ is alleviated, making it reasonable for the state to disprove
the defense.”).
Finally, in State v. Timberlake, 744 N.W.2d 390, 396–97 (Minn. 2008), we firmly
“reaffirmed out interpretation of Minn. Stat. § 624.714 set forth in Paige,” and expressly
concluded that “Burg and Brechon do not undermine our interpretation” in Paige . In
Timberlake, we refused to change our previous holding in Paige that the words “without a
permit” in section 624.714 was an exception and not an element, despite the Legislature’s
subsequent amendments to that statute. Timberlake, 744 N.W.2d at 394–96. The question
in Timberlake was whether police had reasonable suspicion that a suspect was engaged in
criminal activity by carrying a gun. Id. at 393. Timberlake was not about whether the State
23
had proved beyond a reasonable doubt that Timberlake violated section 624.714; indeed,
Timberlake was not even charged with that of fense but rather was convicted under Minn.
Stat. § 624.713, subd. 1(b) (2006) (criminalizing possession of a firearm by a person
previously convicted of a crime of violence). Timberlake, 744 N.W.2d at 392.
In reaching our conclusion, we once again started by examining the language of the
statute. Id. at 394. We observed that the language of section 624.714 had been amended
since the decision in Paige, but observed that “the operative language in the statute [is] the
same as it was when we decided Paige,” and concluded that the textual revisions only
reinforced our construction of the language in Paige. Timberlake, 744 N.W.2d at 396. For
instance, we noted that amendments requiring individuals to carry the permit on their
persons and expressly state that they have authorization to carry created a defense to the
crime of possession without a permit. Id. In other words, the language and structure of the
statute supported the conclusion that the words “without a permit” were not part of the
description of the offense and, accordingly, those words are properly treated as an
exception.
In Timberlake, we also rejected the argument that Brechon and its progeny had
“undermined” the specific holding in Paige. 744 N.W.2d at 396. We observed that
possession of a firearm poses a greater danger to society than the crimes at issue in Brechon
and Burg, see Timberlake, 744 N.W.2d at 396–97—a question relevant (as we have seen)
to determining whether the absence of a fact was an “ordinary defense” or an affirmative
defense after the threshold determination was made, based on the statutory language and
structure, that the absence of a fact was an exception rather than an element.
24
Our review of these cases confirms our analysis in the prior subsection that looked
to the text and structure of section 609.561 to determine whether the Legislature intended
the word “unlawfully” to be an element of first-degree arson or an exception to criminal
liability. In prior cases, we have determined whether a portion of a statute requiring proof
that something did not happen (here, that a person acted in a manner not authorized by law)
creates an element or exception by looking to the text and structure of the statute and asking
whether the requirement “is so incorporated with the clause defining the offense that it
becomes in fact a part of the description.” Brechon, 352 N.W.2d at 749 (citation omitted)
(internal quotation marks omitted). 12 Applying that same standard here, the word
“unlawfully” is incorporated into section 609.561 in a manner similar to how “without
lawful excuse” was integrated into the text of the statute in Burg, and arguably more

12 The State argues that the real distinction between Paige and Brechon turns on
whether the absence-of-a-fact language relates to mens rea. Compare Paige, 256 N.W.2d
at 303 (characterizing the statute as a general prohibition on carrying firearms in public),
with Brechon, 352 N.W.2d at 749 (explaining that if a defendant has a claim of right, “he
lacks the criminal intent which is the gravamen of the offense”). The State reasons that
while the provision in Paige had no intent requirement (it criminalized the mere possession
of a gun in public), trespassing without claim of right includes an implied mens rea. This
distinction may appear to have merit as a descriptive matter if comparing Paige and
Brechon in isolation. But it is entirely inconsistent with Burg. The statutory language at
issue in Burg, Minn. Stat. § 609.375 (1998), contains a mens rea requirement in addition
to the phrase “without lawful excuse”—a set -up virtually identical to the statutory scheme
at issue in this case. See Burg, 648 N.W.2d at 678. Even though one could possibly
distinguish Paige and Brechon based on mens rea, that distinction collapses when
broadened to our other cases involving whether statutory language creates an element or a
defense. And, of course, the arson statute before us in this case requires mens rea as well.
See Minn. Stat. § 6 09.561 (requiring proof that the defendant “intentionally destroys or
damages any building” by fire or explosives). In any event, our primary focus is on
analyzing the text of the arson statute and not on broad presumptions based on cases dealing
with other statutes. Supra at 15, n.5.
25
integrated into the statute than the clause at issue in Brechon. In both Burg and Brechon,
we held that the language was sufficiently incorporated to be considered an element of the
crime instead of a defense.13 The same standard applied here compels the same conclusion.
At the same time, the structure of the text of section 609.561 is different than the
structure of the language in the carrying a firearm without a permit statute
(section 624.714) addressed in Paige and Timberlake. Unlike the word “unlawfully” in
section 609.561, the absence-of-a- fact language in section 624.714 is not textually
embedded in the description of the crime — carrying, holding or possessing a pistol in
public—but rather set forth following the definition of the crime. Further, the “without

13 Beganovic points to the court of appeals’ ruling in State v. Clarin, 913 N.W.2d 717
(Minn. App. 2018), to support the argument that “unlawfully” is an element of the crime
of first-degree arson. We are not bound by the court of appeals decision in Clarin and we
express no opinion on whether the court of appeals’ decision was correct.
Further, it is not clear that Clarin ultimately helps Beganovic. In Clarin, the court
of appeals interpreted the possession of methamphetamine statute, which provided that a
person is guilty of a controlled substance crime in the second degree if the person
“unlawfully possesses” a certain amount of narcotics. Minn. Stat. § 152.022, subd. 2
(2022). The State argued that because possession of methamphetamine is always unlawful,
it need only prove possession of the drug and need not separately prove the possession was
unlawful. Clarin, 913 N.W.2d at 719. The court of appeals, noting that methamphetamine
may be part of a legally prescribed drug, determined that the State was incorrect in its
assertion that possession of methamphetamine is always unlawful. Id. Although the court
of appeals used language that proof that the defendant unlawfully possessed
methamphetamine was an element the State must prove, it did not directly confront the
question presented in this case of whether unlawfulness was an element or defense under
our decisions in Paige, Brechon, and their progeny. Id. at 720. Further, even though the
court of appeals assumed that the State bore the burden of proving that the defendant’s
possession of methamphetamine was unlawful, the court of appeals nonetheless affirmed
that the evidence supporting the conviction was sufficient because the evidence produced
by the State—although not directly proving that the defendant’s possession was not
lawful—allowed the reasonable inference that the defendant’s possession was not lawful.
Id. at 720–21.
26
first having obtained a permit to carry the pistol” language of section 624.714, subd. 1a,
expressly refers to a process that is immediately set forth in the same section. In contrast,
as discussed above, section 609.561 itself does not include within its terms, or specifically
point to, a particular standard for determining when conduct is unlawful or without
authority. And under section 624.714, the firearm permit requirement is the exclusive way
to avoid criminal liability for carrying a gun in public; that is not true of section 609.561.14
Accordingly, we hold that under section 609.561, the State must prove a person set
a fire in a manner not authorized by law as an element of first-degree arson.
II.
We now turn to the question of whether the State met its burden to prove that
Beganovic set the fire in a manner not authorized by law. The State must prove every
element beyond a reasonable doubt to satisfy the requirements of due process. State v.
Pakhnyuk, 926 N.W.2d 914, 919 (Minn. 2019).
In cases involving evidence of the absence of a fact, the State must “produce
evidence from which it may be inferred beyond a reasonable doubt” that there is an absence

14 The concurrence posits that the question of whether a term is sufficiently
incorporated in the definition of the offense turns on whether the act in question is
presumptively legal unless something is proven (in which case it is an element) or is
presumptively illegal except when something is proven (in which case it is an exception).
We are not persuaded. Those two statements say the same thing. A difference is only
created by defining some acts as presumptively legal and some acts as presumptively
illegal. But that begs the question: Why is being on land owned by someone else or failing
to pay child support presumptively legal while carrying a weapon is presumptively illegal?
Moreover, the “something” to be proven in all situations is permission or authorization to
do the act. The test is not useful in distinguishing when a term is an element or an
exception.
27
of that fact. L.Z., 396 N.W.2d at 222. Both parties agree that the State introduced no direct
evidence to prove this element, but the State argues the circumstantial evidence in this case
allows for the inference that Beganovic acted without authorization. We agree.
We follow a two-step analysis in reviewing whether circumstantial evidence is
sufficient to support a conviction. State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011).
First, we identify circumstances proved. State v. Irby, 967 N.W.2d 389, 396–97
(Minn. 2021). “In identifying the circumstances proved, we defer, consistent with our
standard of review, to the jury’s acceptance of the proof of these circumstances and
rejection of evidence in the record that conflicted with the circumstances proved by the
State.” State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (citation omitted) (internal
quotation marks omitted). In the second step, we examine the reasonableness of the
inferences that may be drawn from the circumstances proved to determine whether there
are other rational inferences inconsistent with guilt. State v. Andersen, 784 N.W.2d 320,
329 (Minn. 2010). If there are other ration al inferences that can be drawn from the
evidence that are inconsistent with guilt, the conviction should be overturned. Id. But if
the proposed hypothesis of innocence is not rational, the conviction should be affirmed.
State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
First, based on the guilty verdict, we must assume that the jury concluded that
Beganovic started the fire. Indeed, on appeal, Begano vic does not claim otherwise. The
undisputed evidence also showed that Beganovic filed an insurance claim stating that he
did not start the fire and that his family was inside the house when the fire started, that the
fire was started at night, and that 911 was called to bring the fire department onto the scene.
28
The jury credited the fire investigator’s testimony that the fire was set intentionally and not
the result of a faulty appliance. The jury also necessarily rejected the daughter’s testimony
that she started the fire accidently with a cigarette.
Turning to the second step, these circumstances proved are consistent with the
reasonable conclusion that Beganovic was not authorized by law to start the fire.
Moreover, these circumstances are inconsistent with any alternative conclusion. It does
not make sense for a person who is somehow authorized by law to burn his dwelling to do
so at night, with his family inside, without safety officials on the scene, and then proceed
to deny starting the fire in a 911 call and file an insurance claim asserting that he did not
start the fire. It would not be reasonable for a jury to find that Beganovic had authorization
to start a fire that he emphatically claimed he did not start. See Andersen, 784 N.W.2d at
329–30. From the evidence “it may be inferred beyond a reasonable doubt” that the fire
was set in a manner not authorized by law. See L.Z., 396 N.W.2d at 222. Because the
circumstances proved are inconsistent with any other rational hypothesis besides guilt, the
State met its burden to show that Beganovic acted unlawfully in burning his house.
III.
Beganovic also claims that the failure to instruct the jury on the “unlawfully”
element of the first-degree arson statute is reversible error. Because Beganovic did not
object to the jury instructions in the district court, the forfeiture doctrine generally prevents
us from affording him appellate relief. Pulczinski v. State, 972 N.W.2d 347, 355
(Minn. 2022). But we make an exception when certain conditions exist:
29
The forfeiture doctrine plays a vital role in the criminal justice system
because it encourages defendants to object while before the district court so
that any errors can be corrected before their full impact is realized. But
because a rigid and undeviating application of the forfeiture doctrine would
be out of harmony with the rules of fundamental justice, Rule 31.02 provides
appellate courts a limited power to correct errors that were forfeited. This
limited power is known as the plain-error doctrine.

Id. at 355–56 (citations omitted) (internal quotation marks omitted) . To establish plain
error warranting reversal of a conviction based on an unobjected-to error, an appellant must
show (1) an error (2) that is plain (3) that affects a defendant’s substantial rights. Id. at
356. We may only correct a plain error if we determine that failure to correct the error
would cause the public to seriously question the fairness and integrity of our judicial
system. Id.
We conclude that Beganovic cannot satisfy the third prong of the plain-error
doctrine. Beganovic bears the burden of showing the error affected his substantial rights.
See State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006). This means that Beganovic would
have to demonstrate that there is a reasonable likelihood that the absence of the error would
have had a significant effect on the jury’s verdict. State v. Reek, 942 N.W.2d 148, 159
(Minn. 2020).
We have held that the failure to state an element of a crime in unobjected-to jury
instructions does not necessarily affect the outcome of the case as a matter of law such that
reversal is always required. See State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). We
conclude that, in this case, there is no reasonable likelihood that the jury would have
reached a different conclusion had it been instructed that the State had to prove that
Beganovic acted unlawfully—in a manner not authorized by law—when he set the fire.
30
The evidence that Beganovic did not have legal authorization to start the fire was
overwhelming. See State v. Mouelle, 922 N.W.2d 706, 718 (Minn. 2019) (stating that
whether the State presented overwhelming evidence to prove t he element is one factor we
consider when assessing if an unobjected-to jury instruction that fails to state an element
of a crime affects a defendant’s substantial rights). As discussed in Part II, the State
presented evidence that the fire had multiple points of origin in the house. The evidence
further showed that the fire was started in the middle of the night, that Beganovic claimed
that his family was inside the house when the fire started, and that Beganovic told the 911
operator (and later the insurance company) that he did not start the fire. The significant
quantum of evidence that Beganovic did not have legal authorization to start the fire
supports a conclusion that there is no reasonable likelihood that the jury would have
reached a different conclusion even if properly instructed on the “unlawfully” element.
Importantly, the strength of the State’s evidence is reinforced by the fact that
Beganovic did not contest the State’s proof on the omitted “unlawfully” element. Watkins,
840 N.W.2d at 29 (stating that, in assessing whether there is a reasonable likelihood that
the jury would not have convicted had the jury instructions not omitted an element of a
crime, we consider whether “the defendant contested the omitted element and submitted
evidence to support a contrary finding”). Beganovic’s theory of the case was not that he
was authorized by law to set the fire; rather his position at trial was that he did not set the
fire at all. This is demonstrated by the fact that Beganovic testified at trial that he did not
31
set the fire and did not know how the fire started. 15 Further, Beganovic’s counsel never
argued to the jury that Beganovic could not be found guilty because the State failed to
prove the fire was started unlawfully.
We do not agree with Beganovic that our decision in Burg compels a different result.
In Burg, we decided that the failure to instruct the jury on the State’s burden to show a
defendant acted “without lawful excuse” did affect the defendant’s substantial rights.
648 N.W.2d at 677–80. But Burg is different from this case in a significant way: In Burg,
the district court expressly instructed the jury that the defendant had the burden of proving
he did not have a lawful excuse. Id. at 676. Under those circumstances, it is difficult, if
not impossible, for a reviewing court to say that the jury would have reached the same
result in the absence of the erroneous jury instruction. Here, in contrast, the district court
did not instruct the jury on the burden of proof one way or the other.

15 We emphasize that our consideration of Beganovic’s trial testimony as part of our
assessment of whether the failure to instruct the jury on the “unlawfully” element affected
Beganovic’s substantial rights does not place any burden on Beganovic to disprove
that element. We already determined in Part II of the opinion that the State’s
evidence— without any consideration of the evidence presented by Beganovic at trial—was
sufficient to prove the “unlawfully” element. The State’s constitutional burden of proof
was satisfied; the case could not get to the jury if that was not the case. Indeed, as just
stated, the State’s evidence on the “unlawfully” element, while circumstantial, was
overwhelming in this case.
Our substantial rights inquiry under the plain error doctrine (which is about whether
we can even provide appellate relief to a defendant asserting an unobjected-to error)
focuses on what the jury likely would have done had it had been properly instructed. One
clue about what the jury might have done in an alternative reality where the jury actually
was properly instructed on the “unlawfully” element is whether Beganovic made the case
to the jury that, in light of the evidence that it had before it, he was not guilty on the ground
that the State failed to prove that he was acting without authorization when he set the fire.
It is less likely a properly instructed jury would reach a different conclusion on an element
when the defendant does not contest the element.
32
In summary, after reviewing the record, we conclude that there is no reasonable
likelihood that the jury—which believed the State’s case that Beganovic set the
fire—would have reached a different result had it been properly instructed that the State
had to prove that Beganovic started the fire unlawfully. Accordingly, Beganovic has not
demonstrated that the failure to properly instruct the jury on the “unlawfully” element
affected his substantial rights. We cannot afford Beganovic any appellate relief based on
the unobjected-to erroneous jury instruction under the plain error exception.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
C-1
C O N C U R R E N C E
McKEIG, Justice (concurring).
I agree with the decision of the court to affirm Beganovic’s conviction. But I
disagree that the term “unlawfully” in the first-degree arson statute, Minn. Stat. § 609.561
(2022), creates an element that the State must prove. For this reason, I respectfully concur.
The court of appeals concluded that “unlawfully” means “without authorization
under the permit statute,” found at Minn. Stat. § 609.564 (2022). State v. Beganovic, 974
N.W.2d 278, 284 (Minn. App. 2022). On appeal, neither party challenged that conclusion.
But the majority concludes, contrary to the parties’ and court of appeals’ determination,
that “unlawfully” does not exclusively refer to the permit statute. Supra at 10.
1 I disagree.
I begin my analysis at the same place as the court—with the plain language of the
statute. See Walsh v. State, 975 N.W.2d 118, 122 (Minn. 2022) (explaining that in
ascertaining the intent of the Legislature, we first examine the plain meaning of the statute
at issue). When examining a statute’s plain meaning, this court may use dictionary
definitions to define terms. State v. McReynolds, 973 N.W.2d 314, 318 (Minn. 2022). As
the majority states, unlawful is defined as “[n]ot authorized by law . . . [c]riminally
punishable . . . [i]nvolving moral turpitude.” Supra at 6 (citing Unlawful, Black’s Law
Dictionary (11th ed. 2019)). The majority then concludes that of these definitions, “not

1 To be clear, I am not disputing that this court can review the meaning of a term in a
statute despite the parties’ agreement on the meaning. As the majority correctly points out,
it is the responsibility of our court to decide cases in accordance with the law. See State v.
Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990). Therefore, I take no issue with the
majority’s decision to analyze the word “unlawfully,” but simply wish to highlight the
consensus reached on this issue before this court’s decision.
C-2
authorized by law” is the “most apt.” Supra at 6, (citing Bryan A. Garner, A Dictionary of
Modern Legal Usage 902 (2d ed. 1995)). I agree with the majority that this is the plain
meaning of “unlawfully” in the first-degree arson statute.
But the question still remains of what “not authorized by law” means. To determine
what this means, it makes sense that we would look to what the law authorizes. And the
permit statute that follows the definitions of first through fifth degree arson clearly provides
what it means to be “authorized by law.” See Minn. Stat. § 609.564. Under the permit
statute:
A person does not violate section 609.561, 609.562, 609.563, or 609.5641 if
the person 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.

Id. In other words, a fire is not set “unlawfully” if it is set pursuant to a valid license or
permit. Conversely, a fire set without authorization through a valid license or permit is
unlawful.
The majority claims that authorization cannot simply refer to the permit statute
because the whole -statute canon only allows for two statutes to be considered together
when the statutes were enacted at the same time and for the same purpose. Supra at 9–12
(citing State v. Fugalli, 967 N.W.2d 74, 80 (Minn. 2021)). But reading “unlawfully” in the
first-degree arson statute as linked to the permit statute, does not rely on the use of the
whole-statute canon. This is not a question of how to define a term in a statute; both the
majority and concurrence agree that “unlawfully” plainly means “not authorized by law.”
Instead, this is a question of what the law authorizes, and that question is logically answered
C-3
by looking to any laws that provide authorization to set fires that, without proper
permissions, would otherwise subject an individual to criminal liability. This inquiry leads
directly to Minn. Stat. § 609.564.
The majority also claims a broad interpretation of “unlawfully” is the most
appropriate because “it is not clear under Minnesota law that section 609.564 is the sole
means to claim a fire was started lawfully.” Supra at 12. But I fail to see any other
circumstances under which an act that would be considered first-degree arson would be
lawful other than an individual following the requirements of the permit statute. The
statutory scheme as it currently exists involves a general prohibition on starting fires to a
dwelling under Minn. Stat. § 609.561, and specific exceptions for individuals who follow
the regulatory process referenced in Minn. Stat. § 609.564.
This distinction matters because —as the majority recognizes —the test for
determining what is a basic element of a crime rather than an exception to a criminal statute
is “ ‘whether the exception is so incorporated with the clause defining the offense that it
becomes in fact a part of the description.’ ” State v. Brechon, 352 N.W.2d 745, 749 (Minn.
1984) (quoting Williams v. United States, 138 F.2d 81, 81– 82 (D.C.Cir. 1943)). In this
way, the statutory scheme of the crime of first-degree arson should be the dispositive point.
It does not matter if “unlawfully” refers to Minn. Stat. § 609.564 exclusively or could
potentially include other statutes; the point is that “unlawfully” refers to a lack of
authorization that implicates a regulatory process set by separate statute(s). The exception
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(authorization) is therefore not so incorporated with the clause defining the offense that it
is merely part of the description of the offense.2
The majority claims that distinguishing between an element and an exception based
on the way in which an individual is authorized to commit an otherwise illegal act “has no
basis in anything having to do with the intent of the Legislature when it enacted the
language of the particular statute we are interpreting.” Supra at n.5. But the Legislature is
the body that creates an administrative path— through permitting or some other process—
to authorization of an otherwise illegal act. The Legislature’s decision to create a
regulatory framework to authorize individuals to set fires that would otherwise be first-
degree arson, shows the Legislature’s intent for the word “unlawfully” to be a defense
instead of an element.

2 The majority claims that the Legislature “could not have intended the term
‘unlawfully’ to have been limited to the circumstances defined in section 609.564 because
section 609.564 was not adopted until 1985.” But it is possible that an authorization
process existed outside of section 609.564 that was not codified in state statute until 1985.
Ultimately, this inquiry is irrelevant; the question before our court is not what the
Legislature intended in 1985. The question is what the Legislature intends by the plain
language of the statute as it currently exists. The existence of a permit statute creates a
structure that suggests first-degree arson is generally prohibited with exceptions only for
individuals who follow the regulatory requirements of the permit statute.
Additionally, an argument we addressed in State v. Timberlake is whether statutory
amendments transformed what was previously considered a defense into an element of a
crime. See 744 N.W.2d 390 (Minn. 2008). Though we ultimately concluded that the
amendments only reinforced that the language at issue was a defense, we implicitly
accepted the possibility that the amendments could have changed the status of a statutory
provision from a defense to an element. Id. at 395. Our implicit acceptance of this premise
makes sense, because the Legislature can, and does, change statutory language to add or
remove elements of crimes. See State v. Pakhnyuk, 926 N.W.2d 914, 926 (Minn. 2019)
(describing the addition of elements in the interference of privacy statute). So even if at
one point “unlawfully” was an element, the Legislature is not bound to keep it as such.
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Furthermore, this conclusion is consistent with our caselaw. In State v. Paige, we
held that the language in a statute that prohibited carrying a firearm “without a permit”
created an exception to criminal liability instead of an element of the crime. 256 N.W.2d
298, 303 (Minn. 1977). We explained that the Legislature created a “general prohibition,”
and that “[t]he only exception to this rule is for persons who have demonstrated a need or
purpose for carrying firearms and have shown their responsibility to the police in obtaining
a permit.” Id. We addressed the statute again in State v. Timberlake, noting that statutory
amendments enacted that expressly referred to authorization to carry as a defense to
criminal liability only further supported our conclusion in Paige. 744 N.W.2d 390, 396
(Minn. 2008).
In other cases, we have reached the opposite conclusion. For example, in State v.
Brechon, we concluded that “without claim of right” created an element the State was
required to prove beyond a reasonable doubt. 352 N.W.2d 745, 750 (Minn. 1984). But in
reaching that conclusion, we reasoned that “without claim of right” was “integral to the
definition of criminal trespass in Minnesota.” Id. We explained that “[c]laim of right is a
concept historically central to defining the crime of trespass” and that a defendant who has
claim of right “lacks the criminal intent which is the gravamen of the offense.” Id. at 749.
Furthermore, we explained that the way the State can typically prove a defendant lacked
claim of right to be on a property is through property law: showing ownership of the land
by a third party and that the third party had not given permission for the defendant to be
there. Id. at 750.
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Similarly, in State v. Burg, we concluded that the phrase “without lawful excuse”
was embedded in the definition of the offense of nonsupport of a child. 648 N.W.2d 673,
678 (Minn. 2002). We reasoned that, “[b]y embedding the phrase ‘without lawful excuse’
in the definition of the offense, the legislature demonstrated its intent to include the absence
of a lawful excuse as one of the facts necessary for a conviction.” Id. We therefore held
that the State has the responsibility to prove beyond a reasonable doubt that a defendant
has failed to pay child support “without lawful excuse,” and not the defendant’s burden to
prove that they have a lawful excuse to not pay. Id.
Because I conclude that “unlawfully” refers to the permit process described under
Minn. Stat. § 609.564, I find this case indistinguishable from Paige and Timberlake, but
easily distinguishable from Brechon and Burg. Essentially, Brechon and Burg set up a
statutory scheme under which an act is presumptively legal unless something is proven.
Being on another’s property is legal unless a defendant lacks claim of right to be there.
Non-payment of child support is only illegal if a defendant fails to pay without a lawful
excuse. Paige and Timberlake, in contrast, involve a statute that creates a general
prohibition with a specific exception set by a regulatory process (possessing a permit). In
the same way, setting fire to a dwelling is illegal except when an individual has gone
through the proper regulatory channel to obtain authorization (or, in other words, has a
lawful excuse).
3 A neighbor may give an individual permission to be on their property. A

3 The existence of a permit process for only certain crimes makes sense given the
difference between crimes in their inherent danger to society. As we articulated in Paige,
the purpose of the statute criminalizing carrying a firearm in public is to “prevent the

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psychologist could help establish that an individual lacks the ability to pay child support.
But the only way under the current statutory scheme for a person to avoid criminal liability
for setting a fire that would otherwise be first-degree arson is for that person to have
obtained a permit in accordance with Minn. Stat. § 609.564. This authorization is therefore
not embedded in the definition of the offense. See Brechon, 352 N.W.2d at 749. And
because “unlawfully” is not embedded in the definition of the offense, I would conclude
that the term creates not an element, but rather a defense to liability. Accordingly, I concur.

CHUTICH, Justice (concurring).
I join in the concurrence of Justice McKeig.
MOORE, III, Justice (concurring).
I join in the concurrence of Justice McKeig.

possession of firearms in places where they are most likely to cause harm in the wrong
hands, i.e., in public places where their discharge may injure or kill intended or unintended
victims.” Paige, 256 N.W.2d at 303. We then concluded that the statute created a “general
prohibition” with an exception only for those persons “who have demonstrated a need or
purpose for carrying firearms and have shown their responsibility to the police in obtaining
a permit.” Id.
Similarly, arson is a dangerous crime that can threaten the lives and property of
others. The decision of the Legislature to articulate specifically when an individual may
carry a firearm is essentially the same as the decision of the Legislature to articulate in
section 609.564 when a fire is authorized; the statutes create limited circumstances when
an individual is permitted to do an otherwise dangerous and illegal act.