Stearns County District Court

File Nos. K4-96-2255 & K6-96-2256

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant Crider)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant Gottwald)

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

In a consolidated appeal, appellants challenge their convictions for first-degree burglary, arguing that: (1) the evidence presented at trial was insufficient to establish their guilt beyond a reasonable doubt; and (2) the prosecutor violated their right to a fair trial by committing prejudicial misconduct during his closing argument. We affirm.

FACTS

On June 26, 1996, Todd Sorvari and Leonna Norling were getting ready for bed when they heard people pounding at the door of Sorvari's home. They looked out the window and saw appellants Michael Crider and Troy Gottwald at their door. They were shouting, "Where is Alonzo?" Sorvari replied that Alonzo was not there. Alonzo was an acquaintance of all those involved.

Appellants allegedly entered the house by lifting the garage door off its track, smashing the glass window on the inner entry door, and prying the locked kitchen door open with a screwdriver or crowbar. Appellants do not deny being in the house, but claim Sorvari gave them permission to enter. Both Sorvari and Norling testified that appellants did not have permission and broke in.

Sorvari testified that he met appellants in the kitchen and both were screaming and demanding to know where Alonzo was because they wanted to find him "to kick his ass." Sorvari testified that Crider was holding a knife, and Gottwald was carrying an empty beer bottle.

After searching the home, Norling testified that Crider held the knife to her chin, and told her he was not afraid to use it, so she better tell him where Alonzo was. She told Crider that she did not know where Alonzo was, at which point Crider then held the knife to Sorvari's throat and repeated his threat. Norling further testified that she was very scared and did not know whether appellants were going to hurt her or Sorvari.

Sorvari testified that he ran from the kitchen into the garage in an effort to reach the neighbor's house where he could call the police because his phone was out of order. Norling testified that while Sorvari was running to the neighbor's house, Crider stabbed his knife though the metal refrigerator door. He and Gottwald then left through the garage, breaking a window on their way out.

Appellants were arrested and charged with three counts of first-degree burglary and two counts of second-degree assault. At trial, both appellants elected to testify in their own defense. Each testified that Sorvari gave them permission to enter his home and look for Alonzo. Gottwald testified that he had a beer bottle but did not threaten anyone with the bottle. Crider testified that he did not have a knife and did not threaten anyone. He also testified that he did not believe Sorvari when Sorvari first told him that Alonzo was not in the house, and he was going to find out if Alonzo was in the house, whether Sorvari liked it or not.

The jury found appellants guilty of two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a), (c) (Supp. 1995) (occupied dwelling and assault committed). The jury found them not guilty of a violation of Minn. Stat. § 609.582, subd. 1(b) (burglar possesses a dangerous weapon) and not guilty of two counts of second-dgree assault (one as to Sorvari and one as to Norling) in violation of Minn. Stat. § 609.222, subd. 1 (1994) (with a dangerous weapon).

D E C I S I O N

I.

In reviewing a sufficiency of the evidence claim, we are limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom.

State v. Wallace, 558 N.W.2d 469, 472 (Minn. 1997). We must review

the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The weight and credibility of the testimony of individual witnesses is for the jury to determine. State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).

Minn. Stat. § 609.582, subd. 1(c) (Supp. 1995) provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the first degree * * *, if:

* * *

* * * the burglar assaults a person within the building or on the building's appurtenant property.

Minn. Stat. § 609.02, subd. 10 (1994), defines assault to include:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or

(2) The intentional infliction of or attempt to inflict bodily harm upon another.

Appellants contend that the state did not present sufficient evidence to prove beyond a reasonable doubt that they committed an assault within Sorvari's house. They claim that since the jury acquitted them of second-degree assault and of possession of a dangerous weapon during a burglary, the jury clearly rejected the claim that Crider had a knife and used it to assault Sorvari and Norling. Therefore, appellants conclude that since the state presented no evidence that they committed any other assaults, the state failed to prove that appellants committed first-degree burglary. We disagree.

In the present case, the jury did reach logically inconsistent verdicts by finding appellants guilty of first-degree burglary with assault, but acquitting them of the first-degree burglary charge based on possession of a dangerous weapon and two counts of second-degree assault. However, logically inconsistent verdicts do not entitle a defendant to a new trial. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989); see also State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) ("defendant is not entitled to relief simply because two verdicts--for example, a guilty verdict of one offense and a not guilty verdict of a similar offense--by the same jury are logically inconsistent").

The rationale for this approach is that the not guilty verdict may have been based on jury lenity and that "[t]he exercise of such leniency, which is an aspect of the right to jury trial, is preferable to a system in which jurors, whenever they believe the defendant guilty, `would be strong-armed into rendering an all-or-nothing verdict.'"

Netland, 535 N.W.2d at 331 (quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 23.7(e) (1984 & Supp. 1991)).

This is ample evidence to sustain a finding by the jury that appellants entered the house without consent and committed an assault while in the dwelling. Sorvari and Norling both testified that appellants entered Sorvari's house at 12:30 a.m. without consent. Appellants screamed and demanded to know where Alonzo was, stating that they were going to "kick his ass." Crider testified that he did not believe Sorvari when he first told him that Alonzo was not there, and he was going to find out if Alonzo was in the house, whether Sorvari liked it or not. As appellants searched Sorvari's home, Crider carried a knife and Gottwald was holding an empty beer bottle. When appellants discovered that Alonzo was not in Sorvari's home, Crider held a knife to Norling's chin and demanded to know where Alonzo was. While he was holding the knife to Norling's chin, Crider stated that he was not afraid to use the knife. Crider also held the knife to Sorvari's throat and repeated his threat that he was not afraid to use the knife. This evidence was sufficient to support the jury's conclusion that appellants were guilty beyond a reasonable doubt of first-degree burglary.

II.

Appellants also claim that their convictions should be overturned because the prosecutor violated their right to a fair trial in closing arguments "by impermissibly introducing issues broader than guilt or innocence and by seeking to inflame the passions and prejudices of the jury."

No objections were made to the alleged instances of prosecutorial misconduct. Failure to object ordinarily forfeits a right to review. State v. Williams, 525 N.W.2d 538, 544 (Minn. 1985). A defendant may, however, "obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial." Id.; see also Minn. R. Crim. P. 31.02 (plain errors may be reviewed on appeal even when they were not brought to the trial court's attention).

[T]he trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object--and thereby present the trial court with an opportunity to avoid prejudice--should not forfeit his right to a remedy.

Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

In the present case, the prosecutor did make inappropriate statements in his closing argument about all society being violated when someone breaks the law. We do not condone the remarks, but they were not so prejudicial as to deny appellants a fair trial. First, the prosecutor did remind the jury that his comments about society's rules and laws were simply "the perspective that you might wish to put this case in, in looking at the evidence and fitting it into the elements of each of these cases." Second, the evidence was more than sufficient to support the jury's verdict. Third, appellants' counsel did not make an objection to the trial court concerning the comments made by the prosecutor and did not request a cautionary instruction. Failure to object or to seek curative jury instructions weighs heavily against granting the remedy of a new trial. State v. Langley, 354 N.W.2d 389, 401 (Minn. 1984).

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.