This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-1209

State of Minnesota,
Respondent,

vs.

David William Martinek,
Appellant.

Filed February 29, 2000
Affirmed
Klaphake, Judge

Winona County District Court
File No. T7-98-4409

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Bruce A. Nelson, Assistant Winona City Attorney, 177 Main Street, Suite 202, P.O. Box 167, Winona, MN 55987-0167 (for respondent)

John Paul Plachecki, Darby, Delano & Price, 59 West Third St., Winona, MN 55987 (for appellant)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Appellant David William Martinek was convicted of driving while under the influence of alcohol, in violation of Minn. Stat. § 169.121, subd. 1(e) (Supp. 1997) (driving with alcohol concentration over .10 as measured within two hours of driving). He argues that he is entitled to a new trial because the jury was confused when it reached its initial guilty verdict and the trial court further tainted that verdict by reinstructing the jury and allowing it to redeliberate with the already-completed guilty verdict form. Because the jury was properly instructed and the trial court did not abuse its discretion in reinstructing the jury and allowing it to redeliberate, we affirm.

D E C I S I O N

At trial, appellant’s sole defense was entrapment. He stipulated to having driven with a blood alcohol concentration over .10, but argued that the police officers entrapped him because they failed to prevent him from driving after they found him asleep in a restaurant, visibly intoxicated. The officers woke appellant, told him he had to leave, and advised him several times not to drive. Despite the officers’ warning, appellant got into his truck and drove one block to another restaurant, where he claimed he intended to drink coffee until he was sober enough to drive home. The officers arrested him as he was walking into the restaurant.

Appellant elected to have the entrapment issue decided by the jury at trial, and the trial court gave the jury the standard entrapment instruction, 10 Minnesota Practice, CRIMJIG 7.02 (1990). The jury was given two verdict forms, one finding appellant guilty of the charged offense and the other finding him not guilty.

After approximately one hour of deliberation, the jury sent a question to the trial court asking "what are the responsibilities of the Police Officer in regard to knowing someone is intoxicated?" The court informed the jury that it had all the information that it needed.

After further deliberation, the jury delivered a folded verdict form to the bailiff, but the bailiff overheard several jurors comment that they "didn’t get it." The bailiff reported these comments to the trial court. The court reconvened the jurors, reinstructed them on entrapment, and explained the interplay between the entrapment defense and the driving under the influence charge. The court returned the already-completed verdict form to the jurors and sent them back to redeliberate. Regarding the form, the court instructed the jury: "If it is your verdict, then you can resubmit it to the bailiff. If it is not, then you should cross that out or tear it up or something." There is nothing in the record to indicate that the court knew what the jury’s verdict was at that point in time.

Upon further deliberations, the jury found appellant guilty as charged. The jury was polled and jurors verified that was their verdict.

Appellant moved for a new trial, arguing that the trial court erred when it returned the already-completed verdict form to the jurors and told them to redeliberate. Appellant agrees that the instructions and reinstructions given to the jurors were correct.

Minn. R. Crim. P. 26.03, subd. 19(3) allows a trial court to give appropriate additional instructions to a jury either at the jury’s request or in the court’s own discretion. The court may also recall the jury to give additional instructions. Id. Because the trial court properly instructed the jury and allowed it to redeliberate, the court committed no error or abuse of its discretion. See, e.g., State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986) (in response to jury’s request for supplemental instructions, trial court has discretion to amplify previous instructions, reread previous instructions, or give no response).

In addition, the trial court’s actions in allowing the jury to return to the jury room to redeliberate with the already-completed verdict form was not erroneous. There is no evidence that the court knew what the jury’s decision was at that point, and the court informed the jury that it could either resubmit the already-completed form or fill out the alternative form upon further deliberation. A verdict is not effective until it is received in open court, without disagreement from the jurors, and entered on the record. See Minn. Stat. § 631.17 (1998) (providing that jury be sent out again if any juror disagrees with verdict); see also State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999) (citing Minn. Stat. § 631.17); cf. State v. Ware, 498 N.W.2d 454, 459 (Minn. 1993) (court has latitude to question juror concerning any confusion raised when jury polled). The jury here exhibited confusion before the verdict was read. The trial court was within its discretion to treat this confusion as a disagreement among the jurors and to send the jury back for further deliberations.

Appellant has not shown that he was prejudiced by any questionable incidents involving the jury or that he is entitled to a post-trial Schwartz hearing. See State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979). Nor has he presented any other argument or basis to entitle him to a new trial under Minn. R. Crim. P. 26.04, subd. 1(1) (grounds for new trial include the interest of justice, irregularity in proceedings, misconduct on part of jury, or errors of law occurring at trial). To the contrary, the record establishes that appellant received a fair trial. See State v. Smith, 264 Minn. 307, 323, 119 N.W.2d 838, 849 (1962).

We therefore affirm appellant’s conviction.

Affirmed.