This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Michael NMN Moore,



Filed September 12, 2000


Kalitowski, Judge


Hennepin County District Court

File No. 99015457


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


Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


              Appellant Michael Moore challenges his conviction of crime committed for benefit of a gang under Minn. Stat. § 609.229, subd. 2 (1998).  Appellant argues (1) the evidence was insufficient to prove that he aided and abetted the underlying alleged assault; and (2) the jury’s guilty verdict for crime committed for benefit of a gang is legally inconsistent with the jury’s not-guilty verdict on the assault charges.  We affirm.



            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            To prevail in a criminal prosecution, the state must prove beyond a reasonable doubt every element of the crime charged against the defendant.  In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970).  The elements of crime committed for gang benefit are:  (1) commission of a crime; (2) for the benefit or at the direction of, or in association or motivated by involvement with, a gang; and (3) with the intent to promote or assist criminal conduct by gang members.  Minn. Stat. § 609.229, subd. 2 (1998); see also 10A Minnesota Practice, CRIMJIG 30.13 (1999).

            Appellant argues that insufficient evidence exists to support his conviction because the jury failed to convict him of assault.  We disagree.  First, under the statute it is not necessary that there is a conviction of an underlying crime in order to prove a crime for gang-benefit; rather, section 609.229 requires only that the jury find that the defendant committed the underlying crime. 

            Moreover, the verdict form reveals that the jury based appellant’s conviction of crime for gang benefit on the underlying crime of aiding and abetting assault.  On the form, the jury responded affirmatively to the questions “[d]id the Defendant commit or aid and abet assault in the [First, Second and Third] Degree[s]?”  (Emphasis added.)  Although the jury returned separate not-guilty verdicts on the charges of first-, second-, and third-degree assault, the jury’s failure to convict appellant of assault does not mean the evidence was insufficient to establish appellant committed the crime of aiding and abetting assault for the benefit of a gang.

            Appellant also contends the jury must have misunderstood the definition of “aiding and abetting,” based on a comment of one of the jurors in response to postverdict questions from the district court.  We decline to engage in speculation concerning the jury’s deliberations.  With exceptions not applicable here, a juror’s comment about the substance of the jury’s deliberations is inadmissible under the rules of evidence: 

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon [his] or any other juror’s mind or emotions * * *.


Minn. R. Evid. 606(b); see also State v. Hill, 287 N.W.2d 918, 920 (Minn. 1979) (noting that rule 606(b) “generally disallows juror testimony or affidavits to impeach a verdict”).

            Finally, appellant argues that the evidence does not establish that his conduct during the assault constituted aiding and abetting.  He contends that at most he failed to stop the assault.  We disagree.  The aiding and abetting statute provides:

A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime. 


Minn. Stat. § 609.05, subd. 1 (1998).  To obtain a conviction of aiding and abetting, the state must show “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted).  Mere presence at the scene of a crime does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).  But active participation in the overt act that constitutes the substantive offense is not required, and a person’s presence, companionship, and conduct before and after an offense are relevant “circumstances from which a person’s criminal intent may be inferred.”  Id. (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)); In re Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984). 

            Here, the state presented evidence, in the form of the victim’s eyewitness testimony and subsequent positive I.D., that (1) appellant was present at the time of the attack; (2) appellant thwarted the victim’s first attempt to escape by blocking the porch door; (3) appellant “pistol-whipped” the victim; and (4) after another man hit the victim with an assault rifle and pushed him back into the house, appellant stood over him holding a gun and said to the others that they ought to kill him.  The victim testified that the brutality of the assault intensified at this point.  Appellant’s conduct involved much more than “passive acquiescence” in the assault and was sufficient to support the jury’s determination that he aided and abetted the assault.  His exhortations to the other gang members to kill the victim alone would support the conviction, as an individual may be guilty of aiding and abetting for encouraging another to commit the offense.  See, e.g., In re Welfare of M.E.P., 523 N.W.2d 913, 923 (Minn. App. 1994) (holding probable cause existed to charge defendant with aiding and abetting second-degree murder where defendant taunted perpetrator to shoot), review denied (Minn. Mar. 1, 22, 1995); see also State v. Ostrem, 535 N.W.2d 916, 925-26 (Minn. 1995) (holding defendant’s presence at crime scene, long-time association with perpetrators, failure to thwart completion of crime, and passive condoning of efforts to cover up robbery sufficient to support aiding and abetting conviction).


            Appellant next argues that reversal of his conviction is required because the jury’s verdicts were legally inconsistent.  We disagree. 

            Appellant cites Moore, which defines “legally inconsistent” verdicts as those in which a common necessary element of two charged offenses is subject to conflicting findings.  438 N.W.2d at 108.  Moore challenged his conviction of first- and second-degree murder for the same killing, arguing that the verdict reflected irreconcilable determinations on the presence and absence of premeditation.  Id.  The court rejected this argument, noting that while the verdicts were logically inconsistent, they were not legally inconsistent because “lack of premeditation” is not a “necessary” element of second-degree murder.  Id.  Similarly, the verdicts in this case are not legally inconsistent; a conviction of crime committed for gang benefit does not include “conviction of the underlying crime” as a necessary element.  We conclude that the verdicts are at most logically inconsistent, which does not entitle appellant to a new trial.  Id. (“It is clear that logically inconsistent verdicts do not entitle a defendant to a new trial.”).

            Moreover, appellant was not convicted of two incompatible crimes, but instead was acquitted of one and convicted of the other.   Under Minnesota law,

a defendant who is found guilty on one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.


State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978).  A jury has inherent power to render logically inconsistent verdicts because it may choose to exercise leniency.  Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).  A reviewing court may affirm logically inconsistent verdicts provided there is sufficient evidence to sustain the guilty verdict.  Id.  Here, the record contains sufficient evidence to sustain appellant’s conviction of aiding and abetting assault for the benefit of a gang.