This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Brian Patrick Murphy,
Filed September 30, 2003
Hennepin County District Court
File No. 02054180
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55103; and
Jay M. Heffern, Minneapolis City Attorney, Lois Regnier Conroy, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Stephen V. Grigsby, 210 North 2nd Street, Suite 50, Minneapolis, MN 55401 (for appellant)
Considered and decided by Randall, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.
Appellant argues that the trial court erred in giving the jury an instruction that defined reasonable doubt as evidence “that would guide you in making the most important decision in your life.” Although not a recommended instruction, because the definition did not prejudicially dilute the meaning of reasonable doubt, we affirm.
Appellant Brian Patrick Murphy was charged with two counts of driving while impaired: (1) Minn. Stat. §§ 169A.20, subd. 1(1), .26 (2000), driving under the influence of alcohol; and (2) Minn. Stat. §§ 169A.20, subd. 1(5), .26 (2000), driving with an alcohol concentration of .10 or more. The case was tried to a jury. At the conclusion of the evidence and over appellant’s counsel’s objections, the court gave the following jury instruction concerning reasonable doubt:
The term beyond a reasonable doubt is another important rule that applies in every criminal case. By that term we mean that kind of consideration, evidence if you will, that would guide you in making the most important decision in your life. If the evidence satisfies you to that extent, then the State has sustained its burden of proof beyond a reasonable doubt and the [appellant] is guilty of the charge. If, on the other hand, the evidence is not of that quality, then the State has failed to satisfy its burden of proof beyond a reasonable doubt and the [appellant] is not guilty of the charge.
Remember, however, that proof beyond a reasonable doubt does not mean proof to an absolute or mathematical certainty. It does not mean fanciful or capricious doubt. Nor does it mean beyond all possibility of doubt.
Appellant’s counsel’s objection focused on the court’s use of the word “guide”:
The problem with “guide” is that “guide’s” ambiguous. It doesn’t say that, you know, whether or not you would rely upon that to make the most important decisions, as – as the JIG does, as the JIG from the 8th Circuit does.
. . . .
[T]he jury could look at that and say, “Well, I can be guided by it, but it’s certainly not sufficient for me to rely upon in making the most important decisions.” And it’s possible then that they could convict him by using a lesser standard than what’s required under the state and federal constitutions.
The jury returned a verdict of not guilty on count one (driving while under the influence of alcohol), but guilty on count two (driving with an alcohol concentration of .10 or more).
D E C I S I O N
Appellant contends that the court’s instruction on reasonable doubt, which substituted the word “guide” for the word “act,” undermined the gravity of the state’s burden of proof and misstated the law. The trial court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). Generally, the trial court’s decision will not be reversed unless the instructions constitute an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). But, the requirement of proof beyond a reasonable doubt to convict is constitutionally required. In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 1071 (1970). Conviction of a defendant under a standard less stringent than reasonable doubt is a violation of due process. Id. at 364, 90 S. Ct. at 1073.
A court is not required to use any specific language to define reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994). So long as, taken as a whole, the jury instruction conveys the concept of reasonable doubt correctly, there is no requirement that a specific form of the instruction be given to the jury. Id. But a court’s use of 10 Minnesota Practice, CRIMJIG 3.03 (1999), eliminates challenges to the reasonable doubt instruction. State v. Sap, 408 N.W.2d 638, 641 (Minn. App. 1987). The CRIMJIG instruction on proof beyond a reasonable doubt states:
Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
Here, the court instructed the jury that:
The term beyond a reasonable doubt is another important rule that applies in every criminal case. By that term we mean that kind of consideration, evidence if you will, that would guideyou in making the most important decision in your life. If the evidence satisfies you to that extent, then the State has sustained its burden of proof beyond a reasonable doubt and the [appellant] is guilty of the charge.
Appellant suggests that the instruction allows a conviction if the “evidence provides some vague influence in a particular direction.” But we addressed a nearly identical issue in State v. Hines, 458 N.W.2d 721 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Like the instant case, the court in Hines gave the instruction that “proof beyond a reasonable doubt was the kind of evidence that would ‘guide’ them in making the most important decisions in their lives, instead of what evidence a person would ‘act’ upon.” Id. at 725. This court determined that the instruction sufficiently explained the proper burden of proof. Id. We concluded that “[t]he trial court’s substitution of the word ‘guide’ for the word ‘act,’ although not a recommended instruction, did not prejudicially dilute the instruction on the burden of proof.” Id. While we encourage the trial courts to use the instructions from the JIG, based on Hines, a close reading of the semantic meaning of the instruction, and the deference we give to a trial court’s choice of instruction language, we conclude that the court did not abuse its discretion in using the word “guide” in its jury instruction on proof beyond a reasonable doubt.
 We note, however, that this case differs from Hines in that appellant in Hines did not object to the jury instruction in the trial court. Id. We observe that where appellant raises an objection to the jury instruction, a court’s use of 10 Minnesota Practice, CRIMJIG 3.03 (1999), rules out questions of the instruction’s appropriateness. Sap, 408 N.W.2d at 638.