This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-489

State of Minnesota,
Respondent,

vs.

Solomon David Anderson,
Appellant.

Filed February 1, 2000
Affirmed
Crippen, Judge

Benton County District Court
File No. K298462

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

Michael Jesse, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)

John R. Wylde, Tore Simonsen, Suite 309B Calhoun Square, 3001 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

This appeal follows appellantís conviction on two counts of criminal vehicular homicide and one count of careless driving. He contends the evidence is insufficient to show gross negligence in his driving conduct. In addition, he challenges the consistency of the verdict with acquittals on other charges and the validity of the verdict in light of the trial courtís instruction that the jury work longer on the case after first reporting a stalemate. We affirm.

FACTS

Appellant drove a car that crossed the highway centerline during daylight hours, killing the driver of another car as well as appellantís two-year-old daughter, who was in the back seat of his car. After hearing testimony of appellant, three passengers in his car, and a snowplow driver who witnessed the accident, the jury found appellant guilty of two counts of criminal vehicular homicide, for which he was sentenced to concurrent terms of 48 and 58 months. Appellant was also found guilty of careless driving but was acquitted on charges of criminal vehicle operation that were based on injuries suffered by the other three passengers of the car.

D E C I S I O N

1. Sufficiency of the evidence.

When the sufficiency of evidence for a conviction is questioned, we are to analyze the evidence presented in the record, and any legitimate inferences from that evidence, "to determine whether the jury could have concluded that the state met its burden of proving beyond a reasonable doubt" that appellant was guilty of the offense charged. State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (citation omitted). The evidence must be viewed in the light most favorable to the prosecution, and we must "assume that the jury believed the stateís witnesses and disbelieved evidence contradicting those witnesses." Id. See also State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (citations omitted).

In addition to undisputed evidence that appellant drove the car into the wrong lane, and that appellantís daughter was not in a child safety seat, the juryís verdict is supported by the testimony of Dellman Haugen, a passenger who sat in the front seat of the car. Haugen testified that appellant was engaging in horseplay with a passenger in the back seat while he was driving. Haugen testified that appellant, while driving, went partly into the back seat to grab at the passenger in the back seat, and the car swerved. Haugen testified that he grabbed the wheel, avoiding one collision, but that the car then hit the right shoulder of the road, veered left, and collided with another oncoming car. Other witnesses testified that the horseplay between appellant and another passenger had occurred earlier, rather than immediately prior to the collision.

Appellant contends that Haugenís testimony is unreliable and that the juryís verdict is unsupported by the evidence. But the credibility of a witness and the weight to be given to the witnessís testimony are for the jury to decide. Doppler, 590 N.W.2d at 635; Bias, 419 N.W.2d at 484. There is nothing in the record to prevent the jury from concluding that appellantís behavior constituted gross negligence. Appellant disputes that his behavior was egregious, a characterization of conduct that earlier cases have deemed necessary for a finding of gross negligence. That argument assumes the jury disregarded Haugenís testimony, and we cannot make that assumption under our standard of review.

2. Acquittals.

Appellant claims that the verdicts must be reversed because they are inconsistent. Legally inconsistent guilty verdicts will be reversed. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). "Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense." State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) (citation omitted). Appellant complains that the guilty verdicts on the criminal vehicular homicide charges are inconsistent with the not guilty verdicts on the criminal vehicular operation charges.

The elements of the two crimes are essentially the same, the only difference being the element of death in the criminal vehicular homicide charges as compared to substantial bodily harm in the criminal vehicular operation charges. See Minn. Stat. ß 609.21, subds. 1, 2a (1996). Acquittal on one of the offenses did not negate a necessary element of the other, and the verdicts, while logically inconsistent, were not legally inconsistent.

If the verdicts are only logically inconsistent, a defendant found guilty on some counts and not guilty on others is not entitled to a dismissal or a new trial. State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978). In a criminal case, the jury "has the power of lenityóthat is, the power to bring in a verdict of not guilty despite the law and the facts." State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). The logically inconsistent verdicts in this case do not entitle appellant to any relief.

3. The trial courtís response to the juryís question.

After six hours of deliberations, the jury reported a stalemate on the question of gross negligence or careless driving. The trial court responded, reiterating prior instructions on the importance of the individual judgment of jurors but stating that:

The preparation for and the trial of these cases involve a great deal of time and energy and expense. In this case, we spent a day and a half or more in the trial itself and there is a good deal of time that goes into the preparation as you might imagine. You have deliberated now for six hours. I would expect that you should deliberate longer on this case towards reaching a verdict and I am going to ask you to do that, very respectfully, if you will.

* * * *

I realize in some respects it probably doesnít provide you with the answers you are looking for, but I want you to understand how important this is to us, all the people in this Courtroom, that you do come to some verdict if you possibly can. It may involve some examination of your opinions and your views of the evidence, but I would like you to go back and work at it again to see if you can come to some concession and reach a unanimous verdict if you could. If you canít, I will honor that, but I want you to work at it a little longer.

Appellant suggests this was an impermissible "Allen" charge, prohibited by the Minnesota Supreme Court in State v. Martin, 297 Minn. 359, 368-73, 211 N.W.2d 765, 770-73 (1973). This argument is without merit. Read in their entirety, the trial courtís instruction does not threaten or coerce jurors. The jury was not told that they must reach a verdict or that individual jurors must concede their position. Rather, the jury was told a deadlock would be honored. The jury was appropriately asked to make another effort to reach a verdict, which, the court summed up, should be for "a little longer." Coercion is not suggested by the trial courtís added observation that the trial had involved energy and expense by the parties.

Appellant also contends the jury should have been given additional instructions in response to their question. When the jury asks a question, it is within the trial courtís discretion to amplify previous instructions, reread previous instructions, or even not to respond at all. State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986); Minn. R. Crim. P. 26.03, subd. 19(3). Additional instructions may not be necessary when the initial charge provides the jury with the guidance necessary to resolve their confusion. State v. Crims, 540 N.W.2d 860, 864-65 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).

In this case, the jury had written instructions that explained the difference between negligent and grossly negligent conduct, and appellant does not dispute that these instructions were correct. In addition, there is no suggestion that the jury was confused by these definitions. The trial court did not abuse its discretion in failing to give the jury additional instructions.

Respondent claims that appellant waived his argument regarding the trial courtís response to the juryís question because the trial judge stated that the response reflected the wishes of both sides and appellant did not object. Being convinced the trial court did not err, we decline to address the waiver issue.

4. Due process.

Appellant contends that the combination of alleged errors, taken together, requires a new trial. This argument depends on the occurrence of error. We find no such error and as such find no violation of due process.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.