This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Joseph William Jenkins,


Filed June 16, 1998


Holtan, Judge [*]

Ramsey County District Court

File No. T49651124

Clayton M. Robinson, Jr., St. Paul Building, 6 West 5th Street, Suite 700, St. Paul, MN 55101 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Peg Birk, St. Paul City Attorney, Room 500, Ramsey County Courthouse, 50 West Kellogg Boulevard, St. Paul, MN 55102; and

David L. McCormick, Special Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Holtan, Judge.



Appellant challenges the trial court's denial of his motion for a new trial based on jury misconduct and his motion to dismiss based on legally inconsistent verdicts. Because we find no error in the trial court's decisions, we affirm.


On August 16, 1996, Sandra Harris (victim) went to the Saint Paul VFW bar with her friend Rachelle Lodge (Lodge). Around 12:30 a.m., a man wearing a navy blue "Saint Paul Police" windbreaker approached the victim and identified himself as a Saint Paul police officer. The man showed the victim a badge, which she then showed to Lodge. After returning the badge, the victim turned her attention back to Lodge. When the victim stood up to leave, the man grabbed her from behind and threw her across the floor into a video game machine.

The victim reported the incident to the Saint Paul Police Department on August 20. She told police that her assailant identified himself as "Jenkins." After an investigation, appellant Joseph Williams Jenkins was charged with disorderly conduct and assault.

During a trial in December 1996, Lodge identified appellant as the assailant. In addition, three employees of the VFW testified that they saw appellant either near or talking to the victim on the night of the assault. Appellant testified in his own defense and denied both talking to the victim and throwing her across the floor.

Appellant was convicted of disorderly conduct and acquitted of assault in the fifth degree. Appellant moved to dismiss based on legally inconsistent verdicts. The court denied appellant's motion. Prior to appellant's sentencing, the court presented the parties with a copy of Observations on Quality in the Courtroom: By a Juror, written by jury foreman Dr. John Persico, Jr., which alleged racial bias and misconduct by the jury. Appellant moved for a new trial but the motion was denied.


Jury misconduct

"The decision to grant a new trial based upon juror misconduct rests within the discretion of the trial court and will not be reversed unless there is an abuse of discretion." State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993). The factors to consider in determining whether juror misconduct warrants a new trial are:

(1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to the misconduct; (3) the weight of evidence; and (4) the likelihood that curative measures were effective in reducing the prejudice.

Landro, 504 N.W.2d at 745.[1] Appellant argues that three particular excerpts from Dr. Persico's document indicate jury misconduct:

While perhaps only one of the jurors might have been racially biased, there was a lack of understanding about African Americans which created a certain prejudice on the part of the jury * * *. This prejudice could certainly have had an impact on the ability of the jurors to render a fair and impartial verdict.

* * * *

The jurors are admonished not to discuss the trial among themselves; they are told not to read anything about the trial; they are told not do any research about any issues or facts raised in the trial. For instance, the number of drinks that both the [appellant] and [victim] had was constantly raised as an issue to establish the claim of intoxication. However, not once did anyone show us a standard chart on blood alcohol level. Ironically, while eating in the basement cafeteria, one of the jury picked up a chart (issued by the Department of Transportation) showing blood alcohol levels and levels of intoxication. Legally, this juror should not have either read this information or shared it with the rest of us.

* * * *

After the trial, I found that several other jurors had difficulty sleeping and at least one other juror admitted that he/she had discussed the case with a relative.

a. Prejudice

During the Schwartz hearing, jurors acknowledged that race issues were discussed, but they all stated that the discussion was not derogatory and contained no racial slurs. One juror testified that race was discussed because Dr. Persico was from New York and felt that he should make the other jurors more culturally aware because they were "suburban white people."

Appellant argues that race was not pertinent to the case and that any discussion regarding race indicates jury prejudice, relying on State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995) ("Race-based pressure constitutes `extraneous prejudicial information' about which a juror may testify."). Appellant argues that Bowles stands for the proposition that racism "is considered to be an extraneous influence which requires a new trial." Bowles, however, holds only that a juror may testify in certain circumstances including when there is the possibility of race-based pressure. Id. In this case, the jurors were given a chance to testify during the Schwartz hearing.

Even if Bowles did state that racism in the jury requires a new trial, nothing in the facts indicates that any of the juror's statements constituted racism. Persico's conclusion that the jury may have been biased was dispelled after the Schwartz hearing; his conclusions are not grounds for a new trial. Though we acknowledge that race played no role in this case and that it had no place in the jury's deliberation, nothing in the jury's discussion was prejudicial to appellant.

Next, appellant asserts that because alcohol consumption by the victim, witness, and appellant was important to the trial, he was prejudiced when the jury viewed a Department of Transportation alcohol consumption chart. All but one juror testified that, although they viewed the chart in the lunchroom, it was not used during deliberations. In addition, appellant's counsel acknowledged that he attempted to introduce similar evidence at trial, but that his request was denied. The viewing of the chart was during the trial, not during deliberations, and there is no evidence that the information was used to prejudice appellant.

Lastly, communication during trial between a juror and a relative regarding sentencing is clearly improper. However, although Persico testified that a juror told him she had spoken to a relative, no juror admitted this during the Schwartz hearing and Persico could not identify the juror. Persico also testified that the discussion dealt with sentencing and that he did not learn of this communication until after the verdict had been returned. Even if the conversation did take place, it was limited and the other jurors were unaware of it. Again, there is no evidence of prejudice to appellant.

Number of jurors exposed

Because race was discussed during jury deliberations and the alcohol charts were viewed by most of the jurors while they were eating, it is reasonable to assume that all of the jurors were exposed to improper activity.

Weight of the evidence

The weight of the evidence in this case supports a conviction for disorderly conduct. Lodge identified appellant as being the person who threw the victim across the floor and the victim told police that the man identified himself as "Jenkins." In addition, workers from the VFW testified that they saw appellant talking to the victim on August 16 and that he was standing near her immediately after she had been thrown. There is sufficient testimony to support appellant's conviction for disorderly conduct.

We find nothing in these facts to indicate that the trial court abused its discretion in refusing to grant appellant a new trial.

Legally inconsistent verdicts

"[V]erdicts are legally inconsistent if a single necessary element of a greater and included offense are subject to conflicting findings by the jury." State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995). A defendant is not entitled to relief where a jury finds him guilty of one offense and not guilty of a similar offense because the verdicts would only be logically inconsistent. Id. Not guilty verdicts may be based on jury lenity, the exercise of which is preferable to an "all-or-nothing" system. Id.

Appellant argues that when the jury found him not guilty of fifth-degree assault, but guilty of disorderly conduct, it returned a legally inconsistent verdict. According to Minn. Stat. § 609.72 (1996), disorderly conduct requires a finding that appellant engaged in brawling or fighting. According to Minn. Stat. § 609.224 (1996), fifth-degree assault requires a finding that appellant intentionally inflicted bodily harm upon the victim. Appellant argues that one cannot engage in fighting without intending to inflict bodily harm on the victim.

State v. Reynolds, 243 Minn. 196, 66 N.W.2d 886 (1954), addressed the constitutionality of the disorderly conduct statute and the definitions of both disorderly conduct and brawling. "Brawling" may include actions other than physical contact and a "brawler" is someone who acts with "anger, loud outcries, and tumult." Id. at 204, 66 N.W.2d at 892. "Disorderly conduct" was defined as "some act which tends to breach the peace or disturb those people who may hear or see it." Id. at 199, 66 N.W.2d at 889.

Nothing in Minn. Stat. § 609.72 requires that a person intend to inflict bodily injury if that person is engaged in fighting or brawling. Only if the statute had such a requirement would it be a necessary element of disorderly conduct and the verdicts would be legally inconsistent. Even if fighting did logically involve intent to inflict bodily injury, it is reasonable to conclude that appellant was merely brawling because appellant's actions in throwing the victim across the floor fit the definition of acting out of anger or tumult and could be construed as brawling under Reynolds. Another plausible explanation is that the jury acted with lenity by finding appellant guilty of only one of the crimes with which he was charged. Netland, 535 N.W.2d at 331.

Appellant is not entitled to a dismissal based on legally inconsistent verdicts.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Curative measures were not possible in this case because the court did not become aware of the jury's actions until after the verdict was entered.