This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Janie Hernandez,



Filed June 12, 2001

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge


Freeborn County District Court

File No. K299799


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


Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, P.O. Box 1147, Albert Lea, MN 56007 (for respondent)


Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102; and


Lisa Lodin Peralta, 205 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Janie Hernandez challenges her conviction of and sentence for second-degree controlled substance crime, arguing that the jury’s guilty verdicts for second- and fourth-degree controlled substance crimes for the same sale were legally inconsistent.  Appellant also:  (1) argues she is entitled to a new trial because the prosecutor committed prejudicial misconduct; and (2) contends the district court erred in failing to grant a downward departure.  We affirm the conviction of fourth-degree substance crime, reverse the second-degree conviction, and remand for sentencing.



            Legally inconsistent verdicts are those in which a common necessary element of two charged offenses is “subject to conflicting findings.”  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted).  Appellant, who was charged with second-degree controlled substance crime for offering to sell cocaine and fourth-degree controlled substance crime for selling amphetamine, contends that the jury’s guilty verdicts were legally inconsistent because the instructions required the jury to find that appellant knew or believed the substance was cocaine for the second-degree charge and simultaneously find that she knew or believed the substance was amphetamine for the fourth-degree charge.  We agree. 

In charging the jury, the district court read and distributed copies of jury instructions for second- and fourth-degree controlled substance crime.  The first instruction states in relevant part that the jury must find “the defendant knew or believed that the substance sold was a mixture containing cocaine.”  The second instruction states that the jury must find “the defendant knew or believed that the substance sold was a mixture containing amphetamine.”  Respondent concedes that by convicting appellant of both crimes the jury’s answers are inconsistent, but argues that because the relevant Minnesota statutes do not require scienter the verdicts are not legally inconsistent.  We disagree.  Here, the jury was given copies of the relevant statutes and relevant CRIMJIG jury instructions.  Because the jury instructions, which were not objected to by respondent, caused the inconsistent verdicts, the instructions, including the above quoted language, became the law of the case.  See State v. Lloyd A. Fry Roofing Co., 280 Minn. 265, 267, 158 N.W.2d 851, 853 (Minn. 1968) (concluding jury instructions become the law of the case where no objection made).

Moreover, while not controlling, a recent supreme court case involving the presence of the “knew or believed” language in jury instructions is instructive.  State v. Kuhnau, 622 N.W.2d 552 (Minn. 2001).  In Kuhnau, the defendant was charged with three counts of controlled substance crime and one count of conspiracy to commit a controlled substance crime.  Id. at 553-54.  His defense was that he believed the controlled substance was “bogus.”  Id. at 554.  While the jury instructions for the three controlled substance charges included the language that the defendant “knew or believed” the substance was a controlled substance, the instruction on the conspiracy charge did not contain that language.  Id.  The conspiracy charge was the only charge on which the jury convicted the defendant.  Id.  In reversing and remanding the case to the district court, the supreme court stated:

This missing element from the instructions on the substantive crime, which was the object of the conspiracy charge, has added significance in this case because lack of knowledge of authenticity was the appellant’s theory of defense.


Id. at 557.


Here, appellant admitted selling amphetamine and her defense against the second-degree charge of offering to sell cocaine was that she knew she was selling amphetamine, not cocaine.  Because the jury instructions for both charges included the “knew or believed” language, we conclude it was legally inconsistent for the jury to find that appellant knew or believed the substance sold was a mixture containing cocaine and at the same time knew or believed the substance was a mixture containing amphetamine.

Having determined the verdicts are legally inconsistent, the appropriate remedy is to reverse the conviction for the second-degree charge and remand to the district court for sentencing on the fourth-degree controlled substance charge.  See Minn. Stat. § 611.02 (2000).  Section 611.02 provides that 

when an offense has been proved against the defendant, and there exists a reasonable doubt as to which of two or more degrees the defendant is guilty, the defendant shall be convicted only of the lowest.


See also State v. Moore, 458 N.W.2d 90, 95 (Minn. 1990) (supreme court “inclined to reduce” conviction to lower charge pursuant to Minn. Stat. § 611.02 but remanded for new trial because of ineffective assistance of counsel and denial of fair trial claims).  Finally, because we reverse appellant’s conviction of second-degree controlled substance crime, we need not address appellant’s contention that the district court erred in failing to grant her request for a downward departure.


Appellant contends she is entitled to a new trial because she was denied due process and a fair trial when the prosecutor’s closing argument went beyond the scope of Minn. R. Crim. P. 26.03, subd. 11(j), and became a “second” closing argument.  We disagree. 

            The rule provides:

The prosecution may * * * make a rebuttal argument to the defense closing argument. The rebuttal must be limited to a direct response to those matters raised in the defendant’s closing argument.


Minn. R. Crim. P. 26.03, subd. 11(j).  Appellant points out that the prosecutor’s closing argument was 324 lines in the transcript and the rebuttal 311, while appellant’s closing argument was 376 lines.  But, consistent with the district court’s direction, the prosecutor, during rebuttal, referred specifically to appellant’s closing argument.  And appellant’s objections to the rebuttal as improperly repeating the closing argument were overruled.  As the district court noted, the rule regarding rebuttals does not limit their time or length.  Based on this record, we conclude that the prosecutor’s closing argument was within the scope of rule 26.03, subd. 11(j), and appellant was not denied her right to a fair trial. 

Affirmed in part, reversed in part, and remanded.


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