This opinion will be unpublished and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

C8-97-112

State of Minnesota,

Respondent,

vs.

David Alan Pourrier,

Appellant.

Filed October 28, 1997

Affirmed

Thoreen, Judge

[*]

Faribault County District Court

File No. K796104

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Joel Welder, Faribault County Attorney, Faribault County Courthouse, 1120 Giant Drive, P. O. Box 5, Blue Earth, MN 56013 (for respondent)

John M. Staurt, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 Univeisty Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Thoreen, Judge.

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

THOREEN, Judge

This appeal is from a judgment of conviction for obstructing legal process with force or violence. Minn. Stat. § 609.50, subds. 1(2), 2(2) (1996). Appellant David Pourrier argues that the jury's verdict is legally inconsistent with its verdict finding him not guilty of fifth-degree assault. We affirm.

FACTS

Pourrier was charged with two counts of fifth-degree assault and one count of obstructing legal process for an incident in the early morning hours of March 31, 1996, when he allegedly assaulted his girlfriend at their house, then resisted a police officer's attempts to arrest him, committing an independent assault on the police officer. There were several eyewitnesses to the incident, including the two officers who responded to a 911 call from the house. The officer who approached Pourrier and attempted to arrest him testified that Pourrier swung at him, hitting him with his hand, knocking his hat off, and nearly knocking his glasses off. The defense witnesses testified that the officer had accidentally fallen to the floor as he tugged at Pourrier's arm.

The jury found Pourrier not guilty of both counts of fifth-degree assault, but guilty of the charge of obstructing legal process with force or violence.

D E C I S I O N

Pourrier argues that the jury's verdicts of not guilty of assault and guilty of obstructing legal process are legally inconsistent, entitling him to a new trial.

Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). Thus, only guilty verdicts have been held legally inconsistent with each other. See, e.g., State v. Moore, 458 N.W.2d 90, 94 (Minn. 1990) (verdict of guilty of premeditated murder was legally inconsistent with verdict of guilty of culpable negligence manslaughter).

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).

The reason that guilty and not guilty verdicts are not held to be legally inconsistent is that the jury has the power of lenity, allowing it to acquit on one count of a multiple-count complaint even in disregard of logic or of the evidence. See id. at 874 (citing State v. Jones, 266 N.W.2d 706 (Minn. 1978)). Thus, even if the jury's acquittal on the assault charge involving the police officer is inconsistent with its verdict of guilty of obstructing legal process with force or violence, the inconsistency is merely a logical inconsistency that entitles Pourrier to no relief.

Pourrier also argues that the evidence is insufficient to support his conviction. He bases this argument, however, upon an assumption that the jury's acquittal on the assault charges means that it disbelieved the police officers' testimony. This is just another way of claiming that logically inconsistent guilty and not guilty verdicts require reversal. Sufficiency-of-the-evidence review should not be confused with the problems posed by allegedly inconsistent verdicts. United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478 (1984). The testimony of the two police officers is sufficient to support the verdict, given our standard of review, which requires that we assume the jury believed their testimony. See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).

Affirmed.

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