1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0708

Court of Appeals Chutich, J.
Concurring, Gildea, C.J.
State of Minnesota,

Appellant/Cross-Respondent,

vs. Filed: March 31, 2021
Office of Appellate Courts
Eric Joseph Coleman,

Respondent/Cross-Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Janet Reiter, Chisago County A ttorney, David Hemming, A ssistant County Attorney,
Center City, Minnesota, for appellant/cross-respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant State
Public Defender, Saint Paul, Minnesota, for respondent/cross-appellant.
_______________________

S Y L L A B U S
1. The mental-state element of third- degree depraved mind murder, Minnesota
Statutes section 609.195(a) (2020), is met when the attending circumstances show that the
defendant was indifferent to the loss of life that his eminently dangerous act could cause.
2. The defendant has not met his heavy burden of showing that the erroneous
unobjected-to jury instruction affected his substantial rights.
Affirmed.

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O P I N I O N
CHUTICH, Justice.
This case presents the issue of whether Er ic Coleman established that the instruction
given at his trial for third-degree murder, to which he did not object, materially misstated
well-established law and, if so, affected his substantial rights. A Chisago County grand
jury indicted Coleman on charges of third-degree depraved mind murder under Minnesota
Statutes section 609.195(a) (2020). This stat ute prohibits a person from “perpetrating an
act eminently dangerous to others and evincing a depraved mind, without regard to human
life.” Id. The indictment alleged that after consuming enough alcohol to raise his alcohol
concentration to twice the legal limit, Colema n drove his snowmobile at nearly 60 miles
per hour across a populated frozen lake, hitting and fatally injuring an 8-year-old boy, A.G.
Coleman pleaded not guilty and a jury trial ensued.
When instructing the jury, the district court used the model jury instruction for third-
degree depraved mind murder. The model instruction tells the jurors, among other things,
that the underlying act must be “committed in a reckless or wanton manner with the
knowledge that someone may be killed.” Coleman did not ob ject to this instruction, and
the jury found him guilty as charged. He a ppealed, and the court of appeals affirmed.
Having granted review, we now also affirm.
FACTS
A Chisago County grand jury indicted Eric Coleman for several offenses, including
third-degree depraved mind murder. See Minn. Stat. § 609.195( a) (2020). Coleman
pleaded not guilty and demanded a jury trial.

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At trial, the State presente d the following evidence. At 7:30 p.m. on January 26,
2018, the family of 8-year-old A.G. was setting up its portable ice-fishing house on South
Chisago Lake. Although the su n had set, it was “exceptionally bright” on the lake that
night. There were “a lot of other fish houses” in the area.
As A.G.’s father arranged the inside of the icehouse, which was over 6 feet tall and
had reflectors on all four corners, A.G. and hi s mother stood nearby, next to the family’s
parked pickup truck. When A.G. heard a snowmobile start “a little ways” from the pickup,
he “walked down to the end of the truck to watch the snowmobile go by.” His mother then
observed a snowmobile “coming right towards” them. As she tried to warn A.G., the
snowmobile hit the truck and A.G. before driving straight through the icehouse. A.G. and
his father were injured.
A.G. was airlifted to a hospital, where he died several days later. A.G.’s injuries
included fractured legs, internal bleeding, and a traumatic brain injury.
When police officers arrived at the scene, they spoke to Coleman, the driver of the
snowmobile, who was also injured during the crash. He told an officer that he “didn’t see
the vehicle[,] . . . the ice house[,] . . . or the people outside [of] the pick-up truck” and that
the truck “came out of nowhere and [he] didn’t have time to react.” After observing indicia
of impairment, including bloodshot and watery glassy eyes, the officers secured a sample
of Coleman’s blood, which late r revealed that he had an alcohol concentration of 0.165
(more than twice the legal limit). The State’s expert testifie d that Coleman’s alcohol
concentration “could only have been higher” when the accident occurred.

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Coleman chose to testify at trial. He to ld jurors that on th e day of the deadly
collision, he drank several higher-alcohol-c ontent beers, which he called “grenades,”
before driving his snowmobile on South Chisago Lake. There, he visited with his son and
his daughter’s boyfriend. During the visit, he consumed another beer. Coleman testified
that he had allowed both his son and his daughter’s boyfriend to take his snowmobile for a
ride. The boyfriend testified that, about 20 minutes before the accident, he had ridden the
same trail that Coleman would later take and had not seen any icehouses on the path. The
timeline provided by the family of A.G. suggests that they arrived at the lake and set up
their icehouse sometime after Coleman got there.
After the visit, Coleman sped away on hi s snowmobile, reaching the speed of 58
miles per hour just before hitting the parked pickup truck and A.G. He acknowledged that
he had an alcohol concentration of more than twice the legal limit when the crash occurred.
Coleman also admitted that he knew that drinking and driving is dangerous and that people
die from accidents caused by drunken driving. After acknowledging that these facts were
“general, public knowledge,” he told the jury that he had “a specific knowledge” of the
dangers of drinking and driving because on November 2, 2017 (less than 3 months before
the crash at issue here), he was involved in an alcohol-related crash in which the driver of
the other vehicle was seriously injured. Co leman testified to being “blacked out” during
that accident; the responding of ficer testified at trial th at Coleman had an alcohol
concentration of 0.304 after th at crash. The other driver was taken to the hospital by
ambulance.

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After Coleman and all other witnesses testified, the district court instructed the jury
on the standard to apply to determine Coleman’s guilt. Before doing so, the district court
discussed the proposed jury instructions with the parties on several occasions. Regarding
the third-degree depraved mind murder charge, the court proposed the following language
to describe the third element of the offense:
The defendant’s intentio nal act which caused the death of [A.G.] was
eminently dangerous to human beings and was performed without regard for
human life.

Such an act may not be specifically intended to cause death and may not be
specifically directed at [A.G.], but it was committed in a reckless or wanton
manner with the knowledge that someone may be killed and with a heedless
disregard of that happening.

(Emphasis added.) The proposed language essentially inserted A.G.’s name into the model
jury instruction, see 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction
Guides, Criminal, CRIMJIG 11.38 (6th ed. 2015). Coleman’s attorney did not object to
the final instructions proposed by the district court, and this instruction was read to the
jury. The jury found Coleman guilty on the third-degree murd er charge, and the district
court imposed a presumptive 150-month prison sentence.
On appeal, Coleman argued that the district court co mmitted plain error when it
instructed the jurors that Coleman need only have acted “with the knowledge that someone
may be killed.” According to Coleman, th e above-quoted phrase incorrectly defined
recklessness, which he claime d was the required mental stat e for third-degree depraved

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mind murder.1 Quoting State v. Zupetz, 322 N.W.2d 730, 733–34 (Minn. 1982), Coleman
explained that “a person acts ‘recklessly’ when he consciously disregards a substantial and
unjustifiable risk that the element of th e offense exists or will result from the conduct.”
(Emphasis added.) Because the phrase “someone may be killed” allowed the jurors to find
him guilty of third-degree depraved mind murder if they found that he disregarded “some
or any level of risk,” as opposed to a “substantial and unjustifiable risk,” Coleman argued
that the district court misstated the law.
Quoting State v. Barnes , 713 N.W.2d 325, 331 (Minn. 2006), the State conceded
that the mental state “for depraved mind is equivalent” to the mental state “for
recklessness.”2 Nevertheless, it claimed that Cole man was arguing that a defendant must
know that his reckless act would cause death. According to the State, such a heightened
standard of proof would effectively change third-degree depraved mind murder from an
unintentional crime to an intentional crime.
The court of appeals affirmed Coleman’s conviction of third-degree depraved mind
murder. State v. Coleman, 944 N.W.2d 469 (Minn. App. 2020). The court said, “[A]s both
parties recognize, the supreme court has held that the mental state required for third-degree

1 We use the term “mental state” in stead of the Latin phrase “mens rea.” See Bryan
A. Garner, A Dictionary of Mo dern Legal Usage 501–02 (2nd ed. 1 995) (“As a general
linguistic truth, the use of ar chaic Latin phrases does not fa cilitate understanding of the
adjudicatory process and should be avoided.”). As used in this opinion, the two terms are
synonymous.

2 After a “more careful and thorough review of the law,” the State has withdrawn this
earlier concession. It now asserts that the required mental state for third-degree depraved
mind murder is higher than recklessness.

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depraved-mind murder is ‘equivalent to a reckless standard.’ ” Id. at 478 (quoting Barnes,
713 N.W.2d at 332). Given that standard, the court of appeals concluded that because the
district court’s instruction allowed the jury “to find Coleman guilty if it found that Coleman
acted in a careless manner, and knew only that his conduct may result in someone being
killed,” the instruction did not “properly expl ain an element of th e charged offense.”
Coleman, 944 N.W.2d at 479. According to the co urt, the district court was required “to
instruct the jury that it could find Coleman guilty only if it found that Coleman was aware
that his conduct presented a substantial and unjustifiable risk of causing the death of
another and he consciously disregarded that risk.” Id. at 477 (emphasis added).
In assessing whether the error was plain, the court of appeals shifted its focus from
the district court’s use of the phrase “someone may be killed” to the district court’s failure
to use the phrase “substantial and unjustifiable risk of death to another person.” See id. at
480. Citing State v. Milton , 821 N.W.2d 789, 806 (Minn. 2012), the court of appeals
reasoned that a failure to provide a specific explanation of an element of the offense is not
plain if an appellate court has not yet cl early required such an explanation. Coleman,
944 N.W.2d at 480. Because no appellate court had ever required a district court to define
“recklessly” as a “conscious disregard of a substantial and unjustifiable risk” in the context
of a charge of third-degree depraved mind mu rder, the court concluded that the failure to
include that phrase in the jury instruction was not plain error. Id.
The State filed a petition for review and Coleman filed a cross-petition for review.
We granted both petitions.

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ANALYSIS
On appeal, the State contends that the jury instruction, taken as a whole, accurately
defined the required mental st ate by using terms that are c onsistent with the statutory
language, describing an “eminently dangerous act without regard for human life” that was
“committed in a reckless or wanton manner.” Ev en if the instruction was erroneous, the
State asserts that any error was not plain and did not affect Coleman’s substantial rights.
Coleman contends, by contrast, that the in struction was plainly erroneous because
it allowed a conviction if his mental state wa s merely careless or negligent, which is
impermissibly lower than a recklessness standa rd, which he claims is the proper mental
state. He asserts that this error affected his substantial rights.
“We review a district court’s jury inst ructions for an abuse of discretion.” State v.
Huber, 877 N.W.2d 519, 522 (Minn. 2016). Although a distri ct court has “considerable
latitude in selecting jury instructions and the language of those instructions,” id., they must,
when reviewed in their entirety, fair ly and adequately explain the law. State v. Peltier ,
874 N.W.2d 792, 797 (Minn. 2016). A district court abuses its discretion “when its jury
instruction materially misstates the law when read as a whole.” State v. Schoenrock ,
899 N.W.2d 462, 466 (Minn. 2017) (emphasis added).
A defendant who fails to object to a jury instruction at trial forfeits review of the
instruction. State v. Zinski , 927 N.W.2d 272, 275 (Minn. 2019). An appellate court,
however, has discretion to consider a forfeited issue if the defendant establishes: (1) an
error; (2) that was plain; (3) that affects the defendant’s substantial rights. Id. If all three

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prongs are satisfied, then the court evaluates “w hether reversal is required to ensure the
fairness, integrity, or public reputation of the judicial proceedings.” Id. at 275 n.5.
I.
Before we consider whether the jury instruction materia lly misstated the law, we
must first determine the proper mental stat e for third-degree depraved mind murder. If
after clarifying the mental state, we conclude that an error occurred that did not affect
Coleman’s substantial rights, we need not decide whet her the error was plain. See, e.g.,
State v. Griller, 583 N.W.2d 736, 742 (Minn. 1998).
The third-degree depraved mind murder statute reads:
Whoever, without intent to effect the death of any person, causes the death
of another by perpetrating an act eminently dangerous to others and evincing
a depraved mind, without regard for hu man life, is guilty of murder in the
third degree and may be sentenced to imprisonment for not more than 25
years.

Minn. Stat. § 609.195(a) (2020). The State must establish that the defendant committed an
act that (1) caused the death of another, (2 ) was eminently danger ous to others, and
(3) evinced a depraved mind without regard for human life. State v. Hall, 931 N.W.2d 737,
741 (Minn. 2019). The phrase “without the intent to effect the death of any person” is not
an element of the offense of third-degree de praved mind murder; instead, if the intent
referenced in this phrase exists, the offense at issue is elevated to a different, more serious,
criminal offense than third-degree murder, for example, second-degree intentional murder.
Id. at 741–43.

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As noted above, the district court instructed the jury on the required mental state as
follows:
Third, the defendant’s intentional act which caused the death of [A.G.] was
eminently dangerous to human beings and was performed without regard for
human life.

Such an act may not be specifically intended to cause death and may not be
specifically directed at [A.G.], but it was committed in a reckless or wanton
manner with the knowledge that someone may be killed and with a heedless
disregard of that happening.

(Emphasis added.) The district court’s instruction and CRIMJIG 11.38 include the phrase
“committed in a reckless or wanton manner with the knowledge that someone may be
killed.” This part of the instruction is an apparent effort to help jurors understand the
statutory language “causes the death of another by perpetrating an act eminently dangerous
to others and evincing a depraved mind, without regard to human life.”
3 As explained
below, the additional guidance misc onstrues our precedent, including State v. Lowe ,
68 N.W. 1094 (Minn. 1896), State v. Weltz , 193 N.W. 42 (Minn. 1923), and Barnes ,
713 N.W.2d 325.
In one of our earliest cases using the term “reckless,” State v. Lowe, we considered,
under the statute then in effect , whether an indictment sufficiently stated facts supporting
third-degree depraved mind murder. Similar to the current statute, Section 6440 prohibited
“[s]uch killing of a human bein g, when perpetrated by an act eminently dangerous to
others, and evincing a depraved mind, rega rdless of human life, although without a

3 See 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury instructions Guides,
Criminal, CRIMJIG 11.38 n.2 (6th ed . 2015) (“The phrase ‘committed in a reckless or
wanton manner’ is drawn from State v. Lowe, 68 N.W. 1094 (Minn. 1896).”).

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premeditated design to effect the death of any individual.” 68 N.W. at 1095 (quoting Minn.
Gen. Stat., ch. 92a, tit. 9, § 6440 (1894)). We said that the statute “was intended to cover
cases where the reckless, mischievous, or wanton acts of the accused were committed
without special regard to their effect on a ny particular person or persons, but were
committed with a reckless disr egard of whether they injure d one person or another.” Id.
(emphasis added).
In Lowe, we noted that the statutory language focused on acts that “were committed
without special regard to their effect on any particular person or persons.” Id. Because the
acts of the defendant in Lowe were committed with a “special reference” to a particular
victim, we concluded that the indictment failed to state facts that supported a charge of
murder in the third degree. Id. Having so concluded, we did not consider or determine
whether the facts alleged in the indictment satisfied the “reckless, mischievous, or wanton
acts” language quoted above, or whether the acts were co mmitted “with a reckless
disregard of whether they inju red one person or another.” Id. at 1096. As a result, the
“reckless, mischievous, or wanton acts” language is dicta. See Carlton v. State ,
816 N.W.2d 590, 614 (Minn. 2012) (concluding that a statement in an earlier opinion was
dicta because it was not necessary to the cour t’s ultimate holding). The same can be said
of our discussion of recklessness in Weltz, 193 N.W. at 42–45, and Barnes, 713 N.W.2d at
332.
In Weltz, the question was whether there must “be proof that one charged with
third-degree murder was inherently of depr aved mind, or may the act and the attending
circumstances be evidence enough of mental depravity?” 193 N.W. at 42. We began our

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analysis with a discussion of the common la w concept of “malice,” which distinguished
murder from manslaughter. Id. We said, “The malice whic h distinguished murder from
other species of homicide was not limited to particular ill will against the person slain.” Id.
When referring to a wanton and reckless indifference to human life that was not directed at
the person slain, we used the term “general malice.” See id. Common illustrations of
general malice “were the intentional driving of a carriage in among a crowd at a furious
speed, resulting in the death of one in the cr owd, or the discharging of a gun among a
multitude of people and killing one of them.” Id. at 42.
After we clarified the concept of general malice in Weltz, we considered the question
of whether the act and the attending circum stances were enough to prove the required
mental state. In answering this question, we said that “the statute was intended to formulate
the doctrine of the common law that, although malice was an essential element of the crime
of murder, it need not be proved directly, but might be inferred from the perpetration of
such an act as is described in the statute.” Id. at 43. Our conclusion relied on the principle
“that a sane [person] is pres umed to intend the natural and probable consequence of [the
person’s] own voluntary acts.” Id. We also observed that although in “a moral sense the
unintentional taking of human life by an act evincing a wanton and reckless disregard of
life in general [was] less wicked than the premeditated taking of the life of a particular
individual[,]” both were murder. Id. (emphasis added).
As part of our analysis, we cited approv ingly to a New York case interpreting a
statute almost identical to the Minnesota statute, id. at 42–43 (citing Darry v. People ,
10 N.Y. 120 (N.Y. 1854) (interpreting 2 R.S. 651, § 5)). Under the New York statute, the

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killing of a human being was mu rder when “perpetrated by an act imminently dangerous
to others and evincing a depraved mind, re gardless of human life, although without any
premeditated design to effect the deat h of any particular individual.” Id. (citing Darry,
10 N.Y. 120). In interpreting the statute, the Darry court said, the “acts may well be said
to evince that reckless disregard of and indifference to human life, which is fully equivalent
to a direct design to destroy it.” Darry, 10 N.Y. at 148.
In summarizing the holding in Darry, we said that the “act must evince a depraved
mind, regardless of human life. These words are exactly descriptive of general malice.
They define general recklessness . The act by which death is effected must evince a
disregard of human life.” Weltz, 193 N.W. at 43 (emphasis a dded). We agreed with the
New York court that “[s]uch acts evince a reckless disregard of human life, fully equivalent
to a direct design to destroy it.” Id. This quote accurately desc ribes the requisite mental
state; this issue, however, was not the question that we were asked to resolve in Weltz.
In Weltz, we noted that our decision in Lowe said that our statute “was intended to
cover cases where reckless, mischievous, or wanton acts were committed without special
regard to their effect on a particular person, but with a reckless disregard of whether they
injured one person or another.” Weltz, 193 N.W. at 43. These references to general
recklessness and to “reckless, mischievous or wanton acts” were not necessary to our
ultimate holding in Weltz; thus, they too were dicta. Carlton, 816 N.W.2d at 614. In
retrospect, the stand-alone reference to gene ral recklessness, as we ll as the “reckless,
mischievous, or wanton acts” language, were ill-advised because they led some to believe
that the statute requires a reckless act, as opposed to a mental state of reckless disregard of

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life. This erroneous belief led to ongoing confusion regarding the mental state required for
third-degree depraved mind murder.
This mistaken fo cus on a reckless act was carried forward in Barnes, when the
question before us was whether the firs t-degree domestic abuse murder statute
impermissibly overlapped with the third-degree depraved mind murder statute in violation
of the Equal Protection Clause of the Minneso ta Constitution. 713 N.W.2d at 329–30.
Barnes murdered his girlfriend and tried to cover it up by injecting her with heroin and
claiming that she had overdosed. Id. at 329. He was ultimately convicted of first-degree
domestic abuse murder, and sentenced to life in prison. Id. at 329. On appeal, he argued
that there was “no significant difference in the culpable mental state required by” the first-
degree domestic abuse murder and third-degree depraved mind murder statutes. Id. at 330
(internal quotation marks omitted).
We disagreed and first distinguished the two crimes by the acts required and the
differences between the types of victims. Id. at 331. We next explained that the two crimes
differ because the required mental states have a different focus. “Domestic abuse murder
requires that the extreme indifference be dire cted at the specific pe rson. Depraved mind
murder, on the other hand, cannot occur where the defendant’s actions were focused on a
specific person.” Id.
After we determined that the two crimes were materially distinguishable based on
their incompatible focuses, we added, “There is a further basis to distinguish the [required
mental states] of the two statutes. We have interpreted the ‘depraved mind’ standard from
depraved mind murder to be equivalent to a reckless standard.” Id. at 332 (citing State v.

15
Carlson, 328 N.W.2d 690, 694 (Minn. 1982)). We then not ed that the crimes underlying
domestic abuse murder have “an intent element.” Id. It is unclear whether this ambiguous
reference to a “reckless standard” is an ackno wledgment that the third-degree depraved
mind murder statute requires an act that evinces a mental state of reckless disregard of life,
or an adoption of the dicta in Lowe, and its progeny, which suggests that the third-degree
depraved mind murder statute requires a reckless act. Regardless, our precedents show
that we have established no clear directive as to the mental state required for third-degree
depraved mind murder.
We now clarify that the adjectives we first used in Lowe to describe the act involved
in a third-degree murder (“reckless, mischievous, or wanton”) did not create a mental-state
element that requires a showing that the act was committed in a reckless manner. Instead,
the mental-state element for third-degree de praved mind murder requires a showing that
the eminently dangerou s act was committed with a mental state of reckless disregard of
human life. As Justice Tomljanovich observed in her concurrence in State v. Netland, the
required recklessness or indifference “refer[s] to the risk of death, not to the manner in
which the act that produces that result is undertaken.” 535 N.W.2d 328, 332 (Minn. 1995)
(Tomljanovich, J., concurring).
Accordingly, we hold that a person commits an eminently dangerous act (one that
is highly likely to cause death) without regard to human life, when based on the surrounding
circumstances one can infer that the defendant was indifferent to the loss of life that the
defendant’s eminently dangerous act could cause. In other words, a defendant is guilty of
third-degree murder, when based on the attending circumstances: (1) he causes the death

16
of another without intent; (2) by committing an act eminently dangerous to others, that is,
an act that it is highly likely to cause death; and (3) the nature of the act supports an
inference that the defendant was indifferent to the loss of life that this eminently dangerous
activity could cause.
This articulation draws an important dis tinction between third-degree depraved
mind murder and second-degree culpable ne gligence manslaughter. The manslaughter
offense requires the State to prove that the person “ ‘causes the death of another . . . by the
person’s culpable negligence whereby the person creates an unreasonable risk, and
consciously takes chances of causing deat h or great bodily harm to another.’ ” State v.
Back, 775 N.W.2d 866, 869 (Minn. 2009) (quoting Minn. Stat. § 609.205 (2020)). By
contrast, third-degree depraved mind murder requires an eminently dangerous act that
supports an inference that th e defendant was indifferent to the loss of life that the
defendant’s eminently dangerous activity could cause.
The distinction that we have drawn betw een third-degree depraved mind murder
and second-degree culpable negligence manslaughter is consistent with the views of legal
commentator Wayne LaFave, who states that a reckless act alone does not amount to
murder. 2 Wayne R. LaFave, Substantive Criminal Law § 14 .4(a) (3rd ed. 2018). But
when an act is performed “under circumstances manifesting extreme indifference to human
life,” it is sufficient to distinguish thir d-degree murder from manslaughter. Id. (emphasis
added).
Our articulation of the mental state required for third-degree depraved mind murder
is consistent with our precedent that emphasi zes the need to judge a defendant’s mental

17
state based on the attending circumstances. Weltz, 193 N.W. at 42. When such
circumstances show that the defendant commi tted an eminently dangerous act with an
indifference to the loss of life that the eminently dangerous act could cause, the defendant
has the requisite mental state for third-degree murder. This state of mind demands a greater
showing than the “unreasonable risk” and “c onsciously takes a chance” requirements of
the second-degree manslaughter statute. Minn. Stat. § 609.205(1).
Both the district court’s jury instruction and CRIMJIG 11.38 include the phrase
“committed in a reckless or wanton manner with the knowledge that someone may be
killed.” This phrase incorrectly attaches the recklessness component to the act itself, and
allows for conviction based on an impermissibly low risk of d eath. Thus, the instruction
materially misstated the law.4
II.
We need not determine whethe r the jury instruction error was plain because, even
applying our clarified mental-state element here, Coleman has failed to establish that the
error affected his substantial rights. See State v. Kuhlmann, 806 N.W.2d 844, 853 (Minn.
2011) (explaining that if the error did not affect the defendant’s substantial rights, we need

4 One way to accurately state the law in a jury instruction without using the dicta from
State v. Lowe, 68 N.W. 1094 (Minn. 1896), could be to use the phrase “but it must have
been committed with an indifference to the loss of human life that the eminently dangerous
act could cause .” Such an approach would eliminate the unnecessary and confusing
“reckless or wanton” language, and removes the “with the knowledge that someone may
be killed” language that we have held materially misstates the required mental state.
Acknowledging that the model jury instructions are drafted by the Minnesota District
Judges Association, not this court, we merely illustrate one way in which the required
mental state could be communicated to a jury.

18
not consider whether an error was plain). In determining whether an erroneous jury
instruction affected the defendant’s substantial rights, we must determine whether there is
a reasonable likelihood that the instruction had a “significant effect” on the jury’s verdict.
State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998); State v. Watkins, 840 N.W.2d 21, 28
(Minn. 2013). Coleman bears this “heavy burden.” See Griller, 583 N.W.2d at 741.
Coleman asserts that the erro r in the jury instruction wa s particularly prejudicial
because “the question of whethe r [he] acted with a depraved mind was the only issue he
argued the state had not proven at trial, and in effect, the only issue the jury had to decide.”
He further asserts that a properly instructed jury would have found him not guilty because
the evidence shows that he was only aware of an appreciable risk, and not a “substantial
and unjustifiable risk” to human life when he drank and drove his snowmobile across the
lake that night. Coleman claims that his daughter’s boyfriend had also driven the path 20
minutes before, and had not seen anybody, and he therefore believed that he had a clear
path. He also asserts that the error was repeatedly reinfo rced to the jury through the
prosecutor’s use of the terms “may” and “mi ght” in his closing argument regarding the
requisite level of appreciable risk to human life.
The State counters that even if the jury had been instructed that Coleman needed to
be aware of a substantial and unjustifiable risk to human lif e, it would have reached the
same result. The State emphasizes that not only did Coleman concede that he had the
general public knowledge that drinking and dr iving is dangerous, he also had specific
knowledge of that danger based on his own re cent crash. Coleman testified that he knew
drinking and driving could kill someone, and yet he drove his snowmobile while

19
“extremely intoxicated.” The State thus qu estions how this cond uct could support a
reasonable inference that Coleman lacked the required mental state, and contends that any
reasonable jury would agree.
After carefully reviewing the evidence presented at trial, we conclude that Coleman
has not met his heavy burden of proving that the erroneous jury instruction affected his
substantial rights. This case is different legally and factually from other cases in which we
have concluded that an erroneous jury instruction affected a substantial right.5 Here, given
the overwhelming evidence the State presented at trial that Coleman was indifferent to the
loss of human life that his eminently dangerous conduct could cause, no reasonable
likelihood exists that the error had a si gnificant effect on the jury’s verdict . See State v.
Milton, 821 N.W.2d 789, 809 (Minn. 2012).
The overwhelming evidence of Coleman’s indifference to the loss of human life that
his eminently dangerous conduct could caus e included the testimony of many witnesses
who stated that when the crash occurred the lake was brightly lit and visibility was good
even though it was night. A poli ce captain at the scene testif ied that he could see other

5 In Huber, for example, we determined that an instruction, given in plain error,
substantially affected Huber’s rights because it would have allowed for a conviction based
solely on Huber’s presence at the murder scene, without evidence establishing the mental
state that the law required. 877 N.W.2d 519, 527 (Minn. 2016). Huber presented testimony
that he did not know that the principal was going to commit the murder and that he did not
intend his actions to further commission of the crime; under the erroneous instruction
requiring mere presence, the jury would have been required to convict him, even if it
believed his version of the events. Id. at 526. Therefore, the instruction given did not
accurately state the law, and no amount of testimony would have allowed the jury to acquit
based on permissible grounds. Id. at 527. Here, however, the jury had the benefit of
Coleman’s own testimony as to his mental stat e, and thus it was not forced to render a
verdict contrary to the proper standard even if it believed him.

20
objects on the lake without the use of the headlights on his police car. The State’s witnesses
further testified that many ice-fishing houses were located on the lake where Coleman was
driving. Testimony showed that, despite the presence of others on the lake, he was driving
fast—almost 60 miles an hour—before striking the family’s stationary pick-up truck,
parked right next to the 6-foot tall icehouse with reflective markers on all sides, and the
father and son. Despite the flat lake an d the good visibility, Co leman told the police
officers on the scene that he did not see the truck, the icehouse, or the people, and that the
parked truck “came out of nowhere.”
Coleman admitted that he ha d been drinking “grenades” —a malt beer with high
alcohol content—that night before driving his snowmobile. The evidence showed that he
was extremely intoxicated; a full three hours after the accident, Coleman had an alcohol
concentration of 0.165, more than twice the legal limit. Not only did Coleman concede a
general knowledge that drinki ng and driving can be fatal, he also admitted to having
first-hand knowledge of the dangers posed by driving drunk. Less than three months before
he hit and killed A.G., Coleman caused a crash that hosp italized another driver when he
drove his car with an alcohol concentration of 0.304. Coleman’s disregard of this specific
knowledge shows that he was indifferent to the loss of human life that his eminently
dangerous conduct could cause.
In sum, the level of Coleman’s intoxication, the speed at which he was driving, his
recent alcohol-related crash, a nd his general and specific kn owledge of the dangers of
drinking and driving support but one reasonable inference: Coleman acted with an
indifference to the loss of hum an life that his eminently dangerous act could cause when

21
he consumed several beers with high alcoho l content and then, fully aware that drinking
and driving could be fatal, drove his sn owmobile nearly 60 miles per hour across a
populated frozen lake, fatally injuring an 8-yea r-old boy, who was standing next to the
parked pickup truck and a 6-foot tall icehou se with reflector on all four corners, on an
“exceptionally bright” night. This overwhel ming evidence elimin ates any reasonable
likelihood that the erroneous instruction had a significant effect on the jury’s verdict. See
State v. Kelley, 855 N.W.2d 269, 284–85 (Minn. 2014). Because Coleman failed to show
that the erroneous instruction affected his substantial rights, we affirm his conviction.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

C-1
C O N C U R R E N C E
GILDEA, Chief Justice (concurring).
I agree with the majority th at we should affirm Cole man’s conviction. I write
separately because in my view , we need not resolve whether the district court erred in
instructing the jury. Even if the instructions were erroneous, as Coleman argues, we must
still affirm Coleman’s conviction because he has not demonstrated that any such error
impacted his substantial rights. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (noting
that defendant has “heavy burden” to show error impacted his rights); State v. Goelz ,
743 N.W.2d 249, 258 (Minn. 2007) (“If a defendant fails to establish that the claimed error
affected his substantial rights, we need not co nsider the other factors.”). As the majority
concludes, the evidence of Coleman’s guilt was “overwhelming.” And even if the district
court should have instructed the jury as Coleman argues, no reasonable jury could have
concluded, on this record, th at Coleman was not guilty. Ac cordingly, I would affirm
Coleman’s conviction under the third prong of our plain error analysis. See Lipka v. Minn.
Sch. Emps. Ass’n, Local 1980 , 550 N.W.2d 618, 622 (Minn. 1996) (“[J]udicial restraint
bids us to refrain from deciding any issue not essential to the disposition of the particular
controversy before us.”); see also United States v. Young , 470 U.S. 1, 15 (1985) (“Any
unwarranted extension of this exacting defin ition of plain error would skew the Rule’s
‘careful balancing of our need to encourage all trial participants to seek a fair and accurate
trial the first time ar ound against our insistence that obvious injustice be promptly
redressed.’ ” (quoting United States v. Frady, 456 U.S. 152, 163 (1982))).