State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0681

State of Minnesota,
Respondent,

vs.

Payam Naderipour,
Appellant.

Filed June 5, 2023
Affirmed
Wheelock, Judge

Clay County District Court
File No. 14-CR-16-4433

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

Brian J. Melton, Clay County Attorney, Charles J. Drapeaux, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Segal, Chief Judge; and
Ross, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his convictions for the attempted murder of his parents,
arguing that the district court committed reversible error when it answered questions from
the jury outside his presence and abused its discretion when it formulated and clarified its
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instructions on appellant’s mental-illness defense. Appellant raises additional issues in a
supplemental brief. We affirm because (1) the district court’s communications with the
jury outside appellant’s presence constituted harmless error, (2) the district court’s
instruction on appellant’s mental-illness defense adequately and accurately stated the law,
and (3) the arguments in appellant’s supplemental brief are not supported by relevant
authority.
FACTS
Respondent State of Minnesota charged appellant Payam Naderipour with two
counts of attempted first-degree murder after he poured gasoline on his parents and
attempted to light them on fire. In January 2019, a jury found Naderipour guilty of
committing these offenses, but we reversed his convictions and remanded for a new trial
because the district court tried Naderipour while he was unrepresented without first
obtaining from him a valid waiver of his right to be represented by counsel. State v.
Naderipour, No. A19-0608 (Minn. App. May 4, 2020).
On remand, the district court held a second trial, and Naderipour, now represented
by counsel, asserted a mental-illness defense. In phase one of the bifurcated trial, the jury
found Naderipour guilty of both counts of attempted first-degree murder. During phase
two of the trial, which related to Naderipour’s mental-illness defense, both parties elicited
expert-witness testimony on Naderipour’s mental state at the time of the offense.
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Following this testimony, the district court verbally instructed the jury on
Naderipour’s mental-illness defense and later provided the jury with the following written
instructions:
The defendant has asserted a defense of mental illness.

Under Minnesota law, a person is not criminally liable
for an act when, at the time of committing the act, the person
did not know the nature of the act, or did not know that it was
wrong, because of a defect of reason caused by a mental illness.

The defense of mental illness is as follows:

First, the defendant did not know the nature of the act.
This means the defendant did not understand what the
defendant was doing. If, because of a defect of reason, the
defendant did not know what action the defendant was taking
or what the consequences of the defendant's action would be,
then the defendant did not know the nature of the act, or;

Second, even if the defendant knew the nature of the act,
the defendant did not understand that the act was wrong. The
word “wrong” is used in the moral sense and does not simply
refer to a violation of a statute. Stated another way, even if the
defendant realized that the act violated the law, the defendant
is not criminally liable if, because of a defect of reason, the
defendant did not understand that the act was morally wrong;
and,

Third, the failure of the defendant to know the nature of
the act or that it was wrong, must have been the result of a
defect of reason caused by mental illness.

The defendant has the burden of proving the defense of
mental illness. If you find that it is more likely true than not
true that the defendant, at the time of committing the act(s):
1.) Did not know the nature of the act(s), or did
not know that the act(s) was/were wrong, and,
2.) That lack of understanding was the result of a
defect of reason caused by mental illness,
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then the defendant is not guilty of the crimes of Attempted
Murder. . . .

In order for you to return a verdict, each juror must
agree with that verdict. Your verdict must be unanimous.

The jury asked two questions during its deliberation: “We are currently undecided at this
point. We are deadlocked with different opinions. What is the next step?” and “Can we
please get clarification on page two? If we agree on point one (first) do we have to continue
to next section (second)? Is it point one versus points two and three together? After point
one it says ‘ or’ and after point two it says ‘and.’” The district court answered these
questions outside Naderipour’s presence,1 and it made a record of the questions and its
answers. In response to the questions, the district court bracketed the instructions it had
previously given to the jury and made one annotation on the page containing the elements
of Naderipour’s mental-illness defense. The jury determined that the mental- illness
defense did not apply and found Naderipour guilty of both counts of attempted murder.
Naderipour filed a motion for a new trial based on the district court’s answering jury
questions outside his presence. 2 The district court admitted that it erred but determined
that the error was harmless and denied Naderipour’s motion. Naderipour also alleged juror
misconduct, asserting that one of the jurors knew him and one of the witnesses and then

1 It appears that counsel for neither party was present given the district court’s statement
that “the jurors did have two questions this afternoon. I did not feel I needed to bring the
lawyers in to respond to those questions, but I do want to make a record of both the
questions asked and the response that was given.”

2 Naderipour also challenged the sufficiency of the evidence to convict, but the district
court determined that this argument lacked merit, and Naderipour does not challenge the
sufficiency of the evidence on appeal.
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lied about it during voir dire. Following a Schwartz3 hearing, the district court determined
that the juror did not know Naderipour or the witness and denied Naderipour’s request for
a new trial.
Naderipour appeals.
DECISION
I. The district court committed harmless error by communicating with the jury
outside Naderipour’s presence.

The state conceded that the district court erred by answering questions from the jury
outside of Naderipour’s presence. See Minn. R. Crim. P. 26.03, subd. 1(1) (requiring
defendant to be present “for every stage of the trial including . . . any jury questions dealing
with evidence or law”); Rushen v. Spain, 464 U.S. 114, 117-18 (1983); State v. Sessions,
621 N.W.2d 751, 755-56 (Minn. 2001). In evaluating whether “the denial of a defendant’s
right to be present for all communications with the jury” warrants reversal, appellate courts
apply a harmless-error analysis. Brown v. State, 682 N.W.2d 162, 167 (Minn. 2004); see
also Sessions, 621 N.W.2d at 756 (“Even if a defendant is wrongfully denied the right to
be present at every stage of trial, a new trial is warranted only if the error was not
harmless.”). “If the verdict was surely unattributable to the error, the error is harmless
beyond a reasonable doubt.” Sessions, 621 N.W.2d at 756. When considering whether the
erroneous exclusion of a defendant from judge-jury communications constitutes harmless

3 A Schwartz hearing is a posttrial proceeding in which jurors are examined under oath to
address concerns of juror misconduct. See Schwartz v. Minneapolis Suburban Bus Co.,
104 N.W.2d 301, 303 (Minn. 1960) (adopting procedure).
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error, we consider (1) the strength of the evidence and (2) the substance of the judge’ s
response. Id.
As to the strength of the evidence, the state presented expert testimony that
undermined Naderipour’s mental-illness defense. The state’s expert opined that
Naderipour’s actions on the day of the offense suggested that he possessed “rational
thought” when he committed the offense and that he understood the wrongness of what he
did. Naderipour’s expert, however, concluded that Naderipour did not understand the
wrongness of his actions, basing her conclusion on Naderipour’s postoffense diagnosis of
posttraumatic stress disorder and not on his actions the day of the offense. The conflicting
evidence does not weigh in favor of either party; thus, the first factor is neutral.
The second factor we must consider is the substance of the judge’s response, and it
weighs strongly in favor of the state and of harmless error. The district court’s response
was not substantial or inaccurate; the district court did not modify the jury instructions to
which both parties agreed; and when the jury asked the district court to clarify these
instructions, it bracketed the relevant instructions and wrote, “One or two and three,”
beneath them. The district court’s annotation, “One or two and three,” accurately reflects
the unobjected-to instructions the district court initially read to the jury and did not
substantially change the instructions. These instructions required the jury to find (1) that
Naderipour did not know the nature of his acts or (2) that he did not know the acts were
wrong, and (3) his failure to know the nature of his acts or that they were wrong was due
to a defect in reason caused by mental illness. Although the jury may have been confused
about the instructions, the district court’s response attempted to clarify that the jury needed
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to decide “[o]ne or two” and then consider “three.” This minor—and accurate—
clarification in response to the jury’s questions, without providing additional instruction,
was not substantively significant. Although Naderipour argues that he could have clarified
the instruction for the jury in a less confusing manner, the district court would not have
been obligated to adopt Naderipour’s clarification had he proffered one. State v. Murphy,
380 N.W.2d 766, 772 (Minn. 1986) (“The court has the discretion to decide whether to
amplify previous instructions, reread previous instructions, or give no response at all.”).
This factor therefore weighs strongly in favor of the state and of harmless error.
The evidence supporting Naderipour’s defense was not particularly strong, and the
district court’s response to the jury’s question was not substantial. We therefore conclude
that the district court committed harmless error by answering the jury’s questions outside
Naderipour’s presence, and we decline to reverse and remand for a new trial.
II. The district court did not abuse its discretion when it instructed the jury on the
elements of Naderipour’s mental-illness defense or when it clarified its
previous instructions.

Naderipour argues that the instructions to the jury were confusing even after the
district court responded to the jury’s questions and clarified the elements of Naderipour’s
mental-illness defense. A district court has “considerable latitude in selecting jury
instructions, including the specific language of those instructions.” State v. Peltier,
874 N.W.2d 792, 797 (Minn. 2016). However, “jury instructions must fairly and
adequately explain the law of the case.” Id. We review jury instructions for an abuse of
discretion, and a district court abuses its discretion when its instructions are an erroneous
statement of the law. See State v. Koppi, 798 N.W.2d 358, 361-62, 364 (Minn. 2011); State
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v. Vang, 774 N.W.2d 566, 581 (Minn. 2009) (stating that a district court errs in instructing
the jury when its instructions “confuse, mislead, or materially misstate the law”). An
appellate court reviews jury instructions as a whole to determine whether they accurately
reflect the law. Koppi, 798 N.W.2d at 362. In response to a question from the jury, the
district court may “give additional instructions.” Minn. R. Crim. P. 26.03, subd. 20(3). As
explained previously, the court may also “amplify previous instructions, reread previous
instructions, or give no response at all.” Murphy, 380 N.W.2d at 772; see also Minn. R.
Crim. P. 26.03, subd. 20(3)(b).
As noted above, the district court chose to provide a minimal response to the jury’s
questions: it bracketed the relevant language in the previously given instructions and added
the annotation, “One or two and three.” Naderipour argues that these instructions were
confusing and required the jury “to agree on more than what was required for Naderipour
to prove his defense.” Naderipour points out that part three of the instructions required the
jury to find that he did not understand the nature or wrongness of his acts because of a
defect in reason caused by mental illness, and the lack-of-understanding requirement was
already present in parts one and two. Although the instructions did include redundant
information, this redundancy does not represent a misstatement of the law.
Naderipour was required to prove that “at the time of committing the alleged
criminal act [he] was laboring under such a defect of reason, from [mental illness], as not
to know the nature of the act, or that it was wrong.” Minn. Stat. § 611.026 (2016); see also
Minn. R. Crim. P. 20.02, subd. 7(c); State v. Roberts, 876 N.W.2d 863, 867 (Minn. 2016)
(placing burden of proof on defendant to prove mental-illness defense by a preponderance
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of the evidence). The instructions accurately reflect the elements set forth in the statute:
(1) Naderipour did not know the nature of his actions or that they were wrong, and (2) his
lack of knowledge was caused by a defect in reason due to mental illness. Although parts
one and two of the instructions contained elements of the defense also present in part three,
the inclusion of this redundancy did not force Naderipour to prove more than what was
required of him to successfully assert his defense or change the burden of proof applicable
to his mental-illness defense from a preponderance of the evidence to a different standard.
The instructions provided to the jury accurately stated the law and sufficiently
enabled the jury to “resolve their concerns.” State v. Harwell, 515 N.W.2d 105, 109 (Minn.
App. 1994), rev. denied (Minn. June 15, 1994). Given the wide latitude the district court
possesses to formulate jury instructions, we discern no abuse of discretion in either the
original or annotated instructions the district court provided to the jury.
III. Naderipour’s pro se arguments are inadequately briefed, and we decline to
address them.

We construe Naderipour’s pro se brief to raise three additional arguments:
(1) Naderipour was denied his right to testify, (2) one of the jurors knew him, and (3) he
received ineffective assistance of counsel. But his brief contains only unsuppor ted
assertions and no citation to relevant legal authority or the record. We therefore decline to
address these arguments. State v. Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017)
(reviewing court does not review issues that are inadequately briefed and not supported by
authority).
Affirmed.