This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy Garth Hansen,
Blue Earth County District Court
File No. K7991845
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Timothy Garth Hansen challenges his conviction of fleeing a police officer in a motor vehicle, claiming that the district court committed plain error in instructing the jury by allowing the jury to find appellant “fled” in one of three different ways without requiring it to unanimously agree on which way appellant violated the statute. We affirm.
D E C I S I O N
Minnesota requires unanimous jury verdicts in criminal cases. Minn. R. Crim. P. 26.01, subd. 1(5); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). Where jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous jury verdict. State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987) (citing United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)), review denied (Minn. Jan. 20, 1988). In Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999), the United States Supreme Court observed that “[c]alling a particular kind of fact an ‘element’ carries certain legal consequences,” and a jury “cannot convict unless it unanimously finds that the Government has proved each element.” (citation omitted).
But, “* * * unanimity is not required with respect to the alternative means or ways in which the crime can be committed.” Begbie, 415 N.W.2d at 106 (quotation omitted). Moreover, courts have found a general unanimity verdict adequate in cases where a statute provides alternative ways to commit a crime, and the state offered evidence of more than one way the defendant may have violated the statute. See Schad v. Arizona, 501 U.S. 624, 630-32, 111 S. Ct. 2491, 2496-97 (1991) (offering evidence of both premeditated murder and felony murder against defendant convicted of first-degree murder). Under these circumstances, this court has cautioned against the use of “either/or” jury instructions as unclear and potentially raising doubt about the unanimity of the jury verdict. Hart, 477 N.W.2d at 739.
Appellant contends that the district court violated his right to a unanimous verdict when it allowed the jury to convict him of fleeing a peace officer in any one of three different manners. We disagree. The court instructed the jury that fleeing from an officer consists of four elements: The first element is that “defendant, by means of a motor vehicle, fled or attempted to flee a peace officer.” The court then explained that:
To flee means to increase speed, extinguish lights – or vehicle headlights or taillights, or to use other means with intent or attempt to elude a peace officer following a signal given by any peace officer to the driver of the motor vehicle.
The court’s language flows from Minn. Stat. § 609.487, subd. 1 (2000). The means appellant used to flee the peace officers is not an element of the crime and does not carry the same legal consequences as if it were an element. See Richardson, 526 U.S. at 817, 119 S. Ct. at 1710 (finding that a jury cannot convict unless it unanimously finds proof of each element). Thus, appellant is not entitled to unanimity on the manner in which he fled.
Appellant also contends that he is entitled to a unanimous verdict on whether it was his approach and avoidance of the officers that constituted fleeing or his conduct after he turned the corner and drove away. The same reasoning as to why the jury did not have to reach unanimity on the manner in which appellant fled the officers applies to which exact part of a continuous course of action constituted his fleeing. It is enough that the jury unanimously agreed that appellant’s actions that night constituted fleeing. Thus, we conclude the “unobjected to” instructions and subsequent jury verdict do not constitute plain error.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.