This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).


State of Minnesota,


Stephen John Rabbers,

Filed September 14, 1999
Anderson, Judge

St. Louis County District Court
File No. T5-98-301357

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 1810 East 12th Avenue, #107D, Hibbing, MN 55746 (for respondent)

James Perunovich, 402 East Howard Street, Hibbing, MN 55746 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant was charged with three ordinance violations pursuant to Hibbing Ordinance § 5.08, subds. 1, 2 and 3. The jury acquitted appellant of count I (permitting consumption of alcohol after hours), and count II (having open alcoholic containers in areas where patrons are served) and found the appellant guilty of count III (serving alcohol after closing). Appellant argues that the non-guilty verdicts as to counts I and II render the guilty verdict as to count III legally inconsistent and without support. The trial court denied appellant's motion to dismiss, finding that the guilty verdict was not legally inconsistent with the acquittals or, alternatively, that the guilty verdict was an exercise of "jury lenity." We affirm.


Appellant Stephen John Rabbers is the owner of Steve's Scorecard Bar. On February 21, 1998, at approximately 2:20 am, Hibbing Police Officers Kenneth Weis and Lawrence Schmidt noticed several cars parked in the Scorecard's parking lot. As the two officers approached, they observed, through the front door, a woman serving what appeared to be a mixed drink and a bottle of beer to two men sitting at the bar. After entering the bar, the officers noticed approximately twenty people, some of whom were holding drinks. The officers testified that there were several bottles and cans of beer and what they believed to be mixed drinks on the bar and on the tables surrounding the bar. Neither officer collected as evidence any of the bottles or containers that they believed to have contained alcoholic beverages nor did they record the names of the individuals present, including the female bartender.

At trial appellant argued that the individuals present at the bar were relatives and neighbors and that they came to the bar to visit but not to drink. Appellant denied that alcoholic beverages were served or consumed after closing and testified that the only bottles or glasses on or about the bar were located in an area where customers are not served.


Appellant claims that since he was acquitted of charges alleging that he permitted the consumption of alcohol and failed to remove alcoholic beverage containers after the legal closing time, but convicted of serving alcohol after closing, he is entitled to a new trial for legally inconsistent verdicts.

A jury's verdicts are legally inconsistent only if two or more guilty verdicts have a common necessary element which is subject to conflicting findings. See State v. Moore, 458 N.W.2d 90, 93-95 (Minn. 1990) (verdicts are legally inconsistent if a single necessary element of a greater and included offense are subject to conflicting findings by the jury); see also State v. Cole, 542 N.W.2d 43, 52 (Minn. 1996) (when proof of one element of an offense negates a necessary element of another offense, it is legally inconsistent). Here, the jury rendered a single guilty verdict. Thus, the verdicts cannot be legally inconsistent under Moore.

In State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978), the supreme court stated the following general rule:

[A] defendant who is found guilty on one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.

(Citation omitted). Logically inconsistent verdicts as opposed to legally inconsistent verdicts are not, alone, grounds for a new trial. State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995). Minnesota law allows a jury in a criminal case to exercise lenity. State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984). "Thus, the focus is not upon the inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain the guilty verdict." Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). Our review of a sufficiency of the evidence appeal "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," sufficiently supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Further, the "credibility of individual witnesses is for the jury to determine." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

The record indicates that the officers did not collect any of the bottles they believed to have contained alcoholic beverages. However, the two officers did testify that they had witnessed a woman behind the bar serving drinks and that they positively identified beer bottles in the hands of those present at the bar. Each officer was confident that he had seen alcoholic beverages being served after closing.

While appellant summarily dismisses observations of the police officers, the testimony provided a sufficient basis for the jury to reach a reasonable conclusion that appellant served alcohol after the statutorily mandated closing time. Because we must assume that the jury believed the police officers, we conclude that the evidence is sufficient to support the conviction.


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