This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Andre Orlando Sparkman,



Filed June 4, 2002


Robert H. Schumacher, Judge


Ramsey County District Court

File No. K6003341



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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Foley, Judge.*



Appellant Andre Orlando Sparkman challenges his conviction and sentence for first-degree assault, arguing that the district court erred in responding to a jury question by instructing the jury that they could find him guilty of first-degree assault and not guilty of third-degree assault and that, as a result, the jury rendered legally inconsistent verdicts. Sparkman also argues that the district court abused its discretion in imposing the presumptive sentence because the victim's loss of a tooth was significantly less serious than the injuries suffered by typical first-degree assault victims. We affirm.


On September 11, 2000, Sparkman punched the victim in the mouth during an argument and knocked out two of her teeth. One of the teeth may have been capped or false. At trial, Sparkman's attorney declined the district court's offer to instruct the jury that third-degree assault is a lesser-included offense of first-degree assault.

After deliberations began, the jury sent out a list of questions, including, whether two verdicts were required, whether they could find Sparkman guilty of first-degree assault and not guilty of third-degree assault, whether they could find Sparkman guilty of third-degree assault and not guilty of first-degree assault, and whether they could consider each tooth separately. The court instructed the jury that two verdicts were required, one for first-degree assault and one for third-degree assault, that they could find Sparkman guilty of both charges, that they could find Sparkman guilty only of first-degree assault or only of third-degree assault, and that they could consider the evidence in any manner they wished.

The jury found Sparkman guilty of first-degree assault and not guilty of third-degree assault. Sparkman filed a motion for a new trial. He also filed a motion for downward departure at sentencing. The court denied Sparkman's motions, finding that there were no compelling factors to justify a downward departure from the guidelines and imposed the presumptive, executed sentence of 146 months. This appeal followed.


Sparkman argues that the court's response to the jury question authorized inconsistent verdicts not as a matter of lenity, but as a matter of law. District courts are allowed considerable latitude in the selection of language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Trial courts are afforded significant discretion in crafting jury instructions. State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000) (citation omitted).

The general rule is that a defendant who is found guilty of 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) (citation omitted). But when a jury returns legally inconsistent verdicts, the error is not academic. State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990) (holding that jury returned legally inconsistent verdicts in finding defendant guilty of both first-degree premeditated murder and second-degree culpable negligent manslaughter because defendant could not cause victim's death with premeditation and intent, as required for first-degree premeditated murder, and at same time cause victim's death through negligent or reckless conduct, as required for second-degree culpable negligent manslaughter). Verdicts are legally inconsistent if a single necessary element of a greater and included offense is subject to conflicting findings by the jury. State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995).

In Nelson v. State, Nelson claimed that because he was acquitted of third- and fourth-degree criminal sexual conduct, but convicted of first-degree criminal sexual conduct, these inconsistent verdicts entitled him to a new trial. Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). This court held that Nelson was not entitled to a new trial based on the jury's rendering inconsistent verdicts. Id. at 732. This court stated:

Minnesota law allows a jury in a criminal case to exercise lenity. State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). Thus, the focus is not upon the inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain the guilty verdict. United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478 (1984).


Id. at 731. This court concluded that the evidence was sufficient to sustain Nelson's conviction of criminal sexual conduct in the first degree. Id.

In the instant case, Sparkman does not challenge the sufficiency of the evidence to sustain his first-degree assault conviction under Minn. Stat. 609.221, subd. 1 (2000). This court has previously held that the loss of a tooth satisfies the statutory definition of great bodily harm necessary for a first-degree assault conviction. State v. Bridgeforth, 357 N.W.2d 393, 393-94 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985). The district court did not abuse its discretion by instructing the jury that it could find Sparkman guilty of first-degree assault and not guilty of third-degree assault.

Sparkman argues that a remand for resentencing is necessary because the court either failed to exercise its discretion or abused its discretion by imposing a presumptive sentence that is disproportionate to his criminal conduct. Only in a rare case will a reviewing court reverse a district court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

[T]he Guidelines state that when substantial and compelling circumstances are present, the judge "may" depart. This means that the trial court has broad discretion and that we generally will not interfere with the exercise of that discretion.


Id. Absent compelling circumstances, the presumptive sentence should be imposed. State v. Hysell, 449 N.W.2d 741, 745 (Minn. App. 1990).

Sparkman argues that his conduct was not as serious as that typically involved in first-degree assault cases. The state points out that this court has affirmed a similar sentence for an assault resulting in a similar injury. In Bridgeforth, the defendant pleaded guilty to first-degree assault for fighting with the victim and knocking out her tooth. 357 N.W.2d at 393-94. The district court imposed a 120-month prison sentence, the statutory maximum at the time. Id. at 394. This court held that the loss of a tooth satisfies the statutory definition of great bodily harm and affirmed the sentence. Id.

In Hysell, the district court imposed the presumptive term for second-degree assault, where the only injury to the victim was a red mark on her leg that faded after two to three weeks. 449 N.W.2d at 743. On appeal, Hysell argued that because his conduct was less serious than the typical second-degree assault, the district court should have departed downward in sentencing him. Id. at 745. This court affirmed, concluding that the district court did not abuse its discretion in refusing to depart. Id.

Here, the district court considered and rejected Sparkman's argument that his conduct was less serious than the typical first-degree assault. The court specifically found that Sparkman's conduct constituted a serious assault and fits the definition of assault in the first degree. The court also found that there were no mitigating factors that would justify departure from the guidelines. We conclude the district court did not abuse its discretion in imposing the presumptive sentence.


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