This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Rhonda L. Scheeler,

trustee for the next of kin of Craig A. Scheeler,





Leslie Paul Wolf,



Aaron Gregory Marshall,



John Does, unknown third persons,



Filed September 21, 2004


Kalitowski, Judge


Benton County District Court

File No. C4-00-402


Ronald J. Walsh, Ronald J. Walsh, P.A., 210 Minnesota Center, 7760 France Avenue South, Bloomington, MN 55435 (for appellant)


Roger H. Gross, Sarah M. Aho, Gislason & Hunter LLP, 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343 (for respondent Leslie Wolf)


Thomas G. Jovanovich, Gregory J. Haupert, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 143, St. Cloud, MN 56302 (for respondent Aaron Marshall)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s decision to deny her motions for judgment notwithstanding the verdict (JNOV) and, in the alternative, for a new trial.  We affirm.


            The decision to grant or deny a new trial lies “within the sound discretion of the trial court[,] and will not be disturbed absent a clear abuse of that discretion.”  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  On appeal from a denial of a motion for a new trial, this court views the evidence in the light most favorable to the verdict and will affirm unless the verdict is manifestly and palpably contrary to the evidence.  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

            Where JNOV has been denied by the district court, on appellate review the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.”  Id.  (quotation omitted).  “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.”  Id.

            On this record, we conclude that the district court’s decision is not manifestly and palpably contrary to the evidence and that there is competent evidence supporting the verdict.  “Where one party’s testimony, if believed, would support the verdict, the conclusion that reasonable minds could not differ cannot be reached.”  Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995), review denied (Minn. June 14, 1995).  And where the conflicting opinions of expert witnesses have a reasonable basis in fact, it must be left to the trier of fact to decide who is right and that decision will not be overturned on appeal.  Id. (quoting Hunt v. Estate of Hanson, 356 N.W.2d 323, 325 (Minn. App. 1984), review denied (Minn. Jan. 9, 1985)).

            Here, the jury heard conflicting testimony from experts on whether the fatal gunshot wound was self-inflicted.  Respondents’ theory of the case is supported by the testimony of the only eyewitnesses to the incident, both of whom testified that the wound was self-inflicted as a result of the decedent playing Russian roulette.  This testimony is consistent with one of the eyewitnesses statements to the 911 operators and the police.  And there was expert testimony that evidence at the scene is consistent with someone playing Russian roulette.  Specifically, the presence of other live rounds, a single spent round in the firing chamber of the weapon, a contact wound to the temple, and the fact that the weapon was fired inverted, support a finding of a self-inflicted wound.  Although there were minor inconsistencies in the eyewitnesses’ statements, there was expert testimony that identical statements indicate that the statements may have been rehearsed and that slight inconsistencies were common.  Moreover, the investigating officers testified that they believed that the witnesses were telling the truth during initial investigations.

            Respondents’ experts also contradicted appellant’s expert’s testimony regarding the burns and residue on the decedent’s T-shirt.  First, appellant’s expert’s testing techniques were criticized because test firing was not done with the muzzle in contact with a hard object.  Also, respondents’ expert testified that “this whole scenario has been formulated as to how far away the ports would have to have been from that T-shirt collar based on those two dark areas that were never tested positive for gunshot residue in the first place.”  And respondents’ experts testified that the clear line of gunshot residue on the decedent’s neck indicates that the T-shirt was not pulled away from the decedent’s neck at the time the .357 was fired, contrary to appellant’s theory.  Further, testimony regarding the possible blood spatter on the decedent’s hand is not persuasive because the experts agreed that from the photograph it was not possible to tell whether the spots were blood.  And even if the spots were blood, there was evidence that they could have been caused by the decedent coughing or by medical intervention. 

            Respondents offered the testimony of three experts.  Each of these experts testified that the evidence in this case indicates that the gunshot wound was self-inflicted.  And an appellant is not entitled to a new trial where contested, but credible evidence, if believed, would sustain the verdict.  Boschee, 530 N.W.2d at 842.  Specifically, two of the respondents’ experts testified that the evidence in this case is consistent with someone standing up and placing the gun firmly against their head in an inverted position while tilting their head slightly to the side.  They also testified that the trajectory of the projectile would line up with marks left in the ceiling and wall after the projectile exited the decedent’s head.  These opinions have a reasonable basis in fact and, if believed, would support the verdict.

            Finally, in denying appellant’s motions, the district court noted that there is credible evidence refuting appellant’s theory and that the evidence reasonably tends to support the jury’s verdict.  Therefore, we conclude that the verdict was not manifestly and palpably contrary to the evidence, that there is competent evidence supporting the verdict, and that the district court did not err in denying appellant’s motions for JNOV or a new trial.