This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Scott Brandon Schulberg,



Filed ­­­July 18, 2006


Dietzen, Judge


Dakota County District Court

File No. K5-04-2428


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


James Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for respondent)


James E. Ostgard, II, 1925 Rand Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his convictions of first-degree burglary, felon in possession of a firearm, and terroristic threats, arguing that the evidence was insufficient to support his first-degree burglary convictions and that the district court abused its discretion by (1) improperly instructing the jury on the offense of felon in possession of a firearm, and (2) by denying his motion for a new trial based on inconsistent verdicts.  Appellant also argues that he is entitled to the extraordinary relief of a new trial because of “grave doubts” as to his guilt.  We affirm.


Appellant Scott Brandon Schulberg had an on-again, off-again relationship with M.S. that was sometimes romantic and sometimes violent.  In March 2004, M.S. alleged that appellant entered her residence and stood at the end of her bed with a shotgun “shaking [the gun] in his hand” and threatening to commit suicide.  When appellant refused to leave, M.S. ran out of the house toward her car; but appellant pushed her and broke the car door to prevent her from leaving.  Appellant was later stopped in his vehicle and arrested for driving while impaired and possession of crack cocaine. 

In July 2004, appellant approached M.S. in a bar parking lot as she was entering a friend’s vehicle.  M.S. stated that appellant pulled open the passenger door and screamed obscenities at her.  After M.S. returned home, the doorbell began ringing repeatedly, followed by someone “fidgeting” with the garage door, the lower deck door, and the upstairs deck door in an attempt to gain entry to her residence.  Appellant eventually forced himself through a window and slammed M.S. against a wall, hit her in the nose, threw her on a glass table causing it to shatter, and dragged her up the stairs by her shirt.  M.S. stated that appellant then threatened to kill her. 

M.S.’s neighbor called police to report breaking glass and a female screaming, “[S]top it, stop it, look what you’re doing[.]”  Upon arriving at the residence, both police officers heard a male talking loudly and using profanity and observed a “bent and mangled” window screen ripped out of the window and lying next to the patio door.  The officers also observed that M.S. had a bloody nose, scratches and bruises, and the neck of her shirt was stretched and smattered with blood.  The officers testified that her injuries were typical of “defensive” injuries, which are “the type of wound that a person could get in trying to prevent themselves from being hit or struck in some way[.]” 

Appellant was charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1, and felon in possession of a firearm in violation of Minn. Stat. § 624.713 for the March 2004 incident; and two counts of first-degree burglary in violation of Minn. Stat. § 609.852, subd. 1(c), fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1, and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1, for the July 2004 incident. 

            At trial, respondent called 22 witnesses, including M.S., police officers who responded to the incidents, M.S.’s neighbor, and a domestic-violence expert.  Appellant testified that he frequently stayed at M.S.’s residence during their relationship, but never “officially” moved in and did not have his own keys.  Regarding the March 2004 incident, appellant testified that he entered M.S.’s residence with the purpose of gathering his belongings because the relationship had ended.  He admitted that they argued, but denied having a shotgun in his hand.  He stated that M.S. put the gun in his car and that he only held the gun in his hand briefly to remove it from the car. 

            Regarding the July 2004 incident, appellant testified that he went to M.S.’s residence to retrieve a bag from M.S.’s vehicle.  When M.S. would not give him his bag, he accidentally hit her in the nose and hip, which caused her to fall and hit her arm on the glass table. 

            Because the parties had previously stipulated that appellant was a felon prohibited from possessing a firearm, the district court limited its instruction on that count to whether “the defendant knowingly possessed a firearm . . . on March 12, 2004 in Dakota County.”  The district court denied appellant’s request to instruct the jury on constructive possession of a controlled substance. 

            The jury found appellant guilty of felon in possession of a firearm, both counts of first-degree burglary, and terroristic threats; and not guilty of second-degree and fifth-degree assault.  Appellant moved for acquittal or a new trial, arguing that the jury’s acquittal on the fifth-degree assault count was legally inconsistent with the guilty verdicts on the burglary counts, because those counts required commission of an assault.  The district court denied the motion and sentenced appellant to an aggregate sentence of 111 months.  This appeal followed. 



Appellant raises four issues on appeal.  First, appellant argues that the evidence was insufficient to support his first-degree burglary convictions.  On a claim of insufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and the weight of their testimony, and we assume that the jury believed the state’s witnesses and disbelieved the defendant’s witnesses.  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004).  The verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.  Id. (citation omitted).

Lack of Consent

            Appellant argues that the evidence was insufficient to prove lack of consent to enter M.S.’s home on the night of the July 2004 incident, one of the elements of first-degree burglary, because he had M.S.’s ongoing permission to enter the residence. 

            First-degree burglary requires the state to prove that a person “enter[s] a building without consent and with intent to commit a crime, or enter[s] a building without consent and commit[s] a crime while in the building[.]”  Minn. Stat. § 609.582, subd. 1 (2004).  For purposes of the statute, “enters a building without consent” means either to enter a building without consent of the person in lawful possession or to remain within a building without the consent of the person in lawful possession.   Id. § 609.581, subd. 4(a), (c) (2004). 

Here, there is ample evidence that appellant lacked consent to enter M.S.’s residence in July 2004 and that he was aware of the lack of consent.  Both appellant and M.S. testified that they were no longer dating in July 2004.  And M.S. had called the police on two prior occasions to report that appellant attempted to enter her residence without her consent.  More importantly, on the date in question, M.S. testified that appellant repeatedly rang the doorbell to her residence, which indicates that he did not believe he had permission to enter.  When M.S. did not answer the door, appellant fidgeted with the garage door, the downstairs door, and the upstairs deck door before prying open a window and entering.  And the responding police officer observed the “bent and mangled” screen ripped out of the window.  This evidence is inconsistent with appellant’s theory that he had consent to enter.  Consequently, the evidence was sufficient to support a finding of lack of consent. 


            Appellant further argues that the evidence was insufficient to establish that he committed an assault in July 2004 while in M.S.’s residence.  But M.S. testified that appellant slammed her against the wall, struck her in the nose, threw her on a glass table, and dragged her up the stairs by her shirt.  M.S.’s testimony was corroborated by her neighbor, who testified to hearing M.S. screaming and sounds of glass breaking.  And the responding police officers testified that M.S.’s tee-shirt was stretched and had blood stains, and that she had scratches, red marks, and bruises consistent with “defensive” injuries.  Consequently, there is sufficient evidence that appellant assaulted M.S. after entering the residence in July 2004. 


Second, appellant argues that the district court abused its discretion by failing to properly instruct the jury on the offense of felon in possession of a firearm.  District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  The refusal to give a requested instruction will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). 

            Minn. Stat. § 609.165, subd. 1b(a) (2004), prohibits any person convicted of a crime of violence, as defined in section 624.712, subdivision 5, from possessing a firearm.  If a defendant stipulates to the existence of a prior qualifying conviction, the district court may decline to instruct the jury as to that element of the offense, thus permitting the jury to “direct its attention to the issue of whether or not the state had established beyond a reasonable doubt that [the defendant] possessed the pistol, either actually or constructively.”  State v. Davidson, 351 N.W.2d 8, 11-12 (Minn. 1984). 

Here, the parties stipulated that appellant was a felon prohibited from possessing a firearm, and, therefore, the only remaining issue for the jury was whether appellant possessed the gun during the alleged incident.  The district court provided the following instruction for the elements of the felon-in-possession-of-a-firearm count:  “First, the defendant knowingly possessed a firearm.  Second, his act took place on March 12, 2004 in Dakota County.” 

Appellant argues that the district court abused its discretion by rejecting his request to instruct the jury on CRIMJIG 20.42, which addresses possession of controlled substances for purposes of drug crime offenses and focuses largely on “constructive” possession, i.e., when the drugs are not “on the defendant’s person.”  See 10A Minnesota Practice, CRIMJIG 20.42 (1999) (elements of possession of controlled substances).  Here, appellant was accused of physically holding a gun; thus, constructive possession of drugs was not an issue.  The issue before the jury was actual rather than constructive possession.  Consequently, CRIMJIG 20.42 was irrelevant and likely would have confused the jury. 

            On appeal, appellant argues that the district court abused its discretion by failing to instruct the jury as to the expanded definition of “possession” found in CRIMJIG 32.42, even though he failed to request such an instruction.  See 10A Minnesota Practice, CRIMJIG 32.42 (Supp. 2006) (“A person possesses [a firearm], if it is on his person.  A person also possesses [a firearm] if it was in a place under his exclusive control to which other people did not normally have access, or if the person knowingly exercised dominion and control over it.”). 

            Failure to request specific jury instructions ordinarily waives the right to appeal unless the instructions given contain plain error affecting substantial rights.  State v. Laine, 715 N.W.2d 425, 432 (Minn. 2006).  We apply a three-prong test when making a plain error determination:  “before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An error is “plain” if it is clear or obvious at the time of appeal.  State v. Jackson, 714 N.W.2d 681, 690 (Minn. 2006).  An error affects substantial rights if “the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 744. 

            Because the instruction was a correct statement of the law, it was not erroneous.  Laine, 715 N.W.2d at 432.  Thus, appellant waived his right to have the alleged error reviewed.  


            Third, appellant argues that the district court abused its discretion by failing to grant appellant’s motion for a new trial because the jury’s acquittal on the fifth-degree assault charge is inconsistent with the jury’s finding that all elements of the first-degree burglary counts, which include commission of an assault, were proven.  Respondent argues that an acquittal on the assault count is not legally inconsistent with the burglary convictions because the jury may exercise lenity. 

            This court reviews the district court’s denial of a motion for a new trial for abuse of discretion.  State v. Ahmed, 708 N.W.2d 574, 585 (Minn. App. 2006).  The question of whether verdicts are legally inconsistent is a question of law, which this court reviews de novo.  Laine, 715 N.W.2d at 434-35. 

            Nothing in the constitution requires consistent verdicts.  Id. (citing United States v. Powell, 469 U.S. 57, 64-66, 105 S. Ct. 471 (1984)).  As a general rule, a defendant is not entitled to a new trial or dismissal of a guilty verdict because the verdict is logically inconsistent with the same jury’s not guilty verdict on another count.  State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978).  The rationale for this rule is that “the jury in a criminal case has the power of lenity—that is, the power to bring in a verdict of not guilty despite the law and the facts.”  State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984).  A jury may acquit a defendant on one count solely to limit the defendant’s punishment.  State v. Newman, 408 N.W.2d 894, 898 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987). 

            Appellant relies on State v. Moore to support his argument that he is entitled to a new trial because the verdicts are legally inconsistent; that is, “a necessary element of each offense . . . was subject to conflicting findings.”  438 N.W.2d 101, 108 (Minn. 1989).  But the Minnesota Supreme Court revisited its Moore holding in State v. Leake, 699 N.W.2d 312, 325-26 (Minn. 2005), a case in which the appellant challenged the verdicts of acquittal of second-degree intentional murder and conviction of first-degree premeditated murder as legally inconsistent because of conflicting findings on the element of intent.  Id. at 319.  But the supreme court noted that Moorehad been applied only to cases involving multiple guilty verdicts and that the majority of states do not reverse inconsistent verdicts when there is one acquittal and one conviction.  Id. at 326.  The supreme court affirmed the verdicts, holding that cases involving inconsistencies between a verdict of acquittal on one count and a verdict of guilty on another count are only logically, rather than legally, inconsistent, and therefore do not entitle the defendant to relief.  Id.

            Here, the jury found appellant guilty of first-degree burglary, based on commission of an assault, and yet acquitted appellant of fifth-degree assault.  Although this result is logically inconsistent, this type of inconsistency does not entitle appellant to relief under LeakeLaine, 715 N.W.2d at 435.  Thus, the district court properly denied appellant’s motion for a new trial based on inconsistent verdicts. 


Fourth, appellant argues that he is entitled extraordinary relief in the form of a new trial based on the many “troubling features” of his case.  Respondent argues that extraordinary relief is available only in exceptional circumstances when there is “grave doubt” as to a defendant’s guilt and that the substantial evidence of appellant’s guilt precludes such relief. 

            The Minnesota Supreme Court has held that where it “entertains grave doubt as to a defendant’s guilt, the interests of justice require that there be a new trial.”  State v. Johnson, 277 Minn. 368, 375, 152 N.W.2d 529, 533 (1967).  This is an extraordinary remedy that is rarely granted.  See, e.g., State v. Housley, 322 N.W.2d 746, 750-51 (Minn. 1982) (reversing conviction when state conceded that evidence does not support a reasonable inference that defendant knew he was shooting at a police officer and evidence supported conclusion that defendant reasonably believed that he was in imminent danger);State v. Lundstrom, 285 Minn. 130, 141-42,171 N.W.2d 718, 725-26 (1969) (granting new trial when only evidence of voluntary manslaughter was circumstantial, expert was unable to conclude that death was caused by manual strangulation, and evidence supported defendant’s theory that he was merely attempting to restrain the hysterical victim). 

            Here, there was ample evidence to support the jury’s verdict.  Respondent called 22 witnesses, including police officers, other first-hand witnesses, and a domestic-violence expert, who corroborated M.S.’s testimony and version of events.  And the “troubling features” raised by appellant have been previously considered and rejected by this court.  Consequently, there is nothing exceptional about this case warranting the extraordinary remedy of a new trial.