By William Morris

Owatonna People’s Press

ELLENDALE — A restaurant owner convicted of burning down his family home in 2011 to make an insurance claim will stay behind bars after a state court rejected his appeal Monday.

Mark Misgen, 44, was charged in May 2013 with arson and insurance fraud and convicted in a week-long October 2014 trial. He was sentenced to 58 months imprisonment by Judge Joseph Bueltel. His wife, Sara Degen-Misgen, also was charged in the case and later pleaded guilty to issuing a dishonored check.

At trial, prosecutors argued that the Misgens, who owned pizza restaurants in Ellendale and Lonsdale, were under severe financial strain before the fire and had let bills go to collections or written bad checks to pay them. Evidence shown at trial included records of past-due restitution from a 2007 case involving stolen property and testimony from a co-defendant in that case that Misgen had asked about insurance settlements and how fires are investigated.

In his appeal, filed in April 2015, Misgen argued that evidence and testimony related to his previous criminal history should have been excluded under a Minnesota evidentiary rule banning evidence of past crimes or bad acts to be used to show a criminal character or tendency. Court rules do allow evidence of past wrongdoing to be used to establish the elements of a crime, including motive.

A three-judge panel of the Minnesota Court of Appeals filed its judgment Monday and upheld Misgen’s conviction. Chief Judge Edward Cleary’s ruling noted that while Misgen’s attorney did file a motion objecting to the state’s notice of intent to use evidence of past criminal activity, that motion was one of several apparently boilerplate motions with little relevance to the case, and in fact was filed in May 2013, nearly a year before the state actually gave notice of intent to use such evidence. At that time, still four months before the trial, the record shows the defense made no further objection and that no further hearings were conducted or requested.

Examining the evidence used at trial, the appeals court noted that the evidence in question did not play a critical role in the trial, which included nearly 100 exhibits and more than 20 witnesses. Also significant was that prosecutors did not unduly dwell on the past criminal charges to impugn Misgen’s character, instead pointing to them as further evidence of the great financial strain affecting the family.

“The district court’s failure to instruct the jury on the proper use of other-crimes evidence did not affect appellant’s [Misgen’s] substantial rights because the state presented a strong case, the state did not urge the jury to misuse the evidence, appellant received adequate notice, and appellant failed to object,” the court held.

The original incident occurred in 2011 when two fires destroyed their Ellendale home. The two fires happened within hours of each other. Investigators determined that they were unrelated and intentional, according to the criminal complaint.