This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1534

State of Minnesota,

Respondent,

vs.

Bruce Mial Mason,

Appellant.

Filed May 13, 1997

Affirmed

Amundson, Judge

Pine County District Court

File No. K9-95-440

Hubert H. Humphrey III, Attorney General, Paul Kempainen, Assistant Attorney General, James E. Malaro, certified student attorney, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101, John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Pine City, Minnesota 55063 (for Respondent)

Marsh J. Halberg, Richard W. Pins, David McGee, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN 55435 (for Appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

In this criminal appeal, appellant argues that he is entitled to a new trial because the jury delivered inconsistent verdicts and the state untimely objected to a jury instruction which damaged the credibility of defense counsel. We affirm.

FACTS

Appellant Bruce Mial Mason was charged with seven counts of criminal sexual conduct. The counts resulted from incidents at Camp Nathanael, a Christian camp for boys where Mason served as director from 1980 to 1994. Four campers, between the ages of 8 and 12, alleged that Mason had fondled them at camp in the summer of 1994. Three of the boys alleged that the sexual contact had occurred while Mason administered medical exams, the fourth boy alleged that the contact had taken place when Mason adjusted his swimsuit. Mason was charged with four counts of second-degree criminal sexual conduct, one against each child. Second-degree criminal sexual conduct has two elements: (1) that a person engages in sexual contact with another person; and (2) that the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Minn. Stat. § 609.343 subd. 1 (a) (1994). Mason was also charged with three counts of fourth-degree criminal sexual contact, which is defined as sexual contact with another person where "the actor accomplishes the sexual contact by means of deception or false representation that the contact is for a bona fide medical purpose." Minn. Stat. § 609.345 subd. 1 (k) (1994). Mason was acquitted of the four counts of second-degree criminal sexual conduct, but was found guilty of the three counts of fourth-degree criminal sexual conduct. This appeal followed.

D E C I S I O N

I. Inconsistent Verdicts

When reviewing logically inconsistent verdicts, this court's focus must be on whether there is sufficient evidence to sustain the guilty verdict. Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987), review denied (Aug. 12, 1987) (citing United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478 (1984)).

Mason argues that his acquittal of second-degree criminal sexual conduct charges and his conviction for three counts of fourth-degree criminal sexual conduct are inconsistent verdicts, and therefore, a new trial is required. He argues that because the boys indisputably fit the age profile to satisfy the second element of second-degree criminal sexual conduct, his acquittal on those counts implies that he did not have sexual contact with them. Therefore, he argues that one of the elements of fourth-degree criminal sexual conduct--that a person has sexual contact with another--was not satisfied.

A defendant is entitled to a new trial if the verdicts are legally inconsistent. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (Moore I). Logically inconsistent verdicts are not a ground for a new trial. Id. Mason cites an unrelated Minnesota case that the supreme court remanded for a new trial because it held that the verdicts were legally inconsistent. See State v. Moore, 458 N.W.2d 90 (Minn. 1990) (Moore II). In Moore II, the jury had found the defendant guilty of first-degree murder, which requires premeditation, as well as second-degree manslaughter, which requires a finding of death by culpable negligence. Id. at 93-94. On review, the court remanded for a new trial, stating that it was unable to reconcile the findings of the jury in these two incompatible verdicts. Id. at 94-95.

Moore II can be easily distinguished from the instant case. Here, Mason was not convicted of two incompatible crimes. Rather, he was acquitted of one and convicted of the other. Minnesota has specifically held that:

The general rule is that a defendant who is found guilty of 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.

State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978). It appears that the jury's logically inconsistent verdicts resulted from their exercise of leniency. Minnesota recognizes juries' power of leniency in criminal cases, which means finding a defendant not guilty despite the law and the facts. State v. Perkins, 353 N.W.2d 557, 561 (Minn. 1984).

We conclude that this case illustrates a case of logically inconsistent verdicts. We find that there was sufficient evidence to sustain the guilty verdicts.

II. Jury Instructions

Jury instructions must be reviewed as a whole in order to determine whether they justly and adequately explained the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Trial courts are allowed considerable latitude in selecting the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).

Mason argues that he is entitled to a new trial because the trial court sustained allegedly untimely objections by the state regarding jury instructions. The jury instruction in question refers to fourth-degree sexual conduct. Five days before Mason closed his case-in-chief, the trial court provided for counsel's review copies of jury instructions, generated by the tenth district's computer system. The defense closed its case, and after receiving no objection from either party, the court read the instructions to the jury. The instruction for fourth-degree sexual assault correctly described the crime, but incorrectly added "by a health care professional" to the end of the instruction.

Defense counsel then proceeded with his summation, stating:

So, even if you somehow believe this case was proven, you cannot find on counts five through seven because Mr. Mason never claimed to be a health care professional, never represented himself to be a health care professional to any of these boys, and you cannot find him guilty, no matter what your conclusions is about these boys' testimony.

After both sides delivered their closing arguments, the state objected to the instruction, accurately stating that although the court's instruction comported with CRIMJIG 12.84 (1990), the statute does not require that the actor be a health care professional. The court gave a supplemental jury instruction, striking the phrase "by a health care professional." Mason argues that because counsel relied on the incorrect jury instructions, counsel's credibility was destroyed. We disagree. First, the amended jury instruction was correct. Secondly, the trial court gave counsel an opportunity to readdress the jury, which both parties declined. Finally, the court accepted full responsibility for the error, explaining to the jury:

The responsibility, if that need be noted, is with the court, because it is my obligation to arrive at instructions which fairly state the actual provisions of Minnesota law.

We conclude that the jury instructions, viewed as a whole, were fair and accurate and, thus, there was no abuse of discretion.

Affirmed.