This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



David Lingbeck,


Filed June 24, 1997


Randall, Judge

Olmsted County District Court

File No. K5951042

Hubert H. Humphrey III, Attorney General, Adonis A. Neblett, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for Respondent)

Raymond F. Schmitz, Olmsted County Attorney, 151 Fourth Street Northwest, Rochester, MN 55904 (for Respondent)

John M. Stuart, State Public Defender, Marie L Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.



A jury convicted appellant David Lingbeck of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996), first-degree burglary with assault in violation of Minn. Stat. § 609.582, subd.1(c) (1996), and violation of an order for protection in violation of Minn. Stat. § 518B.01, subd. 14 (1996). Lingbeck was acquitted of fifth-degree assault. On appeal, Lingbeck argues: (1) the jury returned legally inconsistent verdicts; and (2) the jury instructions were confusing and improper, constituting plain error. We affirm.


Lingbeck's convictions stem from an incident occurring at the home of his former girlfriend Sandra Fitzgerald on February 10, 1995. Following their breakup, Fitzgerald secured an order for protection which, while not prohibiting all contact, did prohibit acts of abuse and entry into Fitzgerald's residence.

On the morning of February 10, 1995, when Fitzgerald was not home, Lingbeck yelled for her outside her residence. When Fitzgerald returned home, she was informed of Lingbeck's visit. Later that day, Lingbeck broke down Fitzgerald's door and entered her residence while Dana Skare, Fitzgerald's boyfriend, was in the bathroom. Skare heard Lingbeck yell at Fitzgerald and heard Fitzgerald scream. Fitzgerald started to run from Lingbeck, but he grabbed her by the wrist. Fitzgerald broke loose from Lingbeck's grasp and fell down some stairs in her apartment. Lingbeck fled the scene before the police arrived. The officers observed and documented the broken and splintered condition of the back door frame and molding.

As a result of the incident, Fitzgerald claims her finger was hurt and her leg and wrist were bruised. She later obtained medical care for her injuries. On March 15, 1995, Fitzgerald had the order for protection amended to preclude all further contact with Lingbeck.

Lingbeck, in a taped interview, denied kicking in Fitzgerald's door to enter her apartment, but alibis he provided did not corroborate his version of events. Lingbeck was initially charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) and violation of an order for protection in violation of Minn. Stat. § 518B.01, subd. 14. The complaint was later amended to add the charges of first-degree burglary with assault in violation of Minn. Stat. § 609.582, subd.1(c) (1996), and fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(1) (1996).

A jury found Lingbeck guilty of all charges except the fifth-degree assault charge. Lingbeck's motions for acquittal and for a new trial were denied and Lingbeck was sentenced to an executed term of 48 months on the first-degree burglary with assault conviction (presumptive sentence).


Trial courts have reasonable latitude in selecting language and in determining the propriety of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (quoting Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 798 (1954)). "In reviewing a trial court's jury instructions, we examine the record for abuse of discretion and errors of law." State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997) (citations omitted), review denied (Minn. April 15, 1997). When instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).


Lingbeck argues that the jury's verdicts finding him guilty of first-degree burglary with assault, but acquitting him of fifth-degree assault, are legally inconsistent. We disagree. "It is clear that logically inconsistent verdicts do not entitle a defendant to a new trial." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citations omitted). In the exercise of jury discretion as the fact-finders, a jury need not convict a defendant of every charged crime. See State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) (jury lenity is preferable to strong-arming jury into rendering an "all-or-nothing verdict") (quoting 3 W. LaFave and J. Israel, Criminal Procedure § 23.7(e) (1984 & Supp. 1991)). A fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(1) (1996) is not a necessary element of first degree burglary with assault. See Minn. Stat. § 609.582, subd. 1(c) (1996) (type of assault necessary for conviction not specified). Accordingly, the verdicts are not legally inconsistent. See State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) ("Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.").


For the first time on appeal, Lingbeck argues that the trial court abused its discretion by proffering improper jury instructions. Generally, the defendant waives any objection to an instruction raised for the first time on appeal. State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984); see also Minn. R. Crim. P. 26.03, subd. 18(3) (requiring parties to object before the jury retires to consider its verdict). We may, however, review jury instruction issues raised for the first time on appeal where the assigned error in instruction constitutes plain error affecting substantial rights or where the claim relates to error in fundamental law in the jury instructions. State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (quoting Minn. R. Evid. 103(d)). Thus, we will consider whether the instructions so misled the jury as to constitute plain error affecting Lingbeck's substantial rights.

Lingbeck argues that the following jury instructions for the charged offense fail to properly require a finding of assault as an essential element of first-degree burglary with assault:

The statutes of Minnesota provide that whoever enters a building without consent and commits a crime while in the building is guilty of burglary in the first degree if the person assaults another within the building or the building's appurtenant property.

The elements of burglary in the first degree are

first, defendant entered the dwelling without the consent of the person in lawful possession.

Second, defendant assaulted a person within the building or on the building's appurtenant property.

Third, defendant entered 912 West Center Street with intent to commit the crime of assault or entered 912 West Center Street without consent and committed an assault within the building. Whether the crime was intended must be determined from all the circumstances * * * .

Fourth, defendant's act took place on or about February 10, 1995, in Olmsted County.

The trial court then emphasized the requirement that a conviction be based on a finding of all four elements of the crime by stating:

If you find that each of these four elements has been proved beyond a reasonable doubt, defendant is guilty of burglary in the first degree. If you find that any of these elements has not been so proved, defendant is not guilty.

We agree that the third element is awkwardly phrased. Read as a whole, however, the trial court's instructions cannot reasonably be interpreted to allow conviction without finding an assault. The first part of the instructions, paraphrasing the statute, states that Lingbeck must commit an assault to be guilty of the crime of burglary with assault. The instructions then lists "assault" as the second element of the crime. Finally, the trial court emphasized that the jury must find each of the elements to convict Lingbeck of the crime. We conclude that the instructions were not so misleading as to constitute plain error affecting Lingbeck's substantial rights.