State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0503

State of Minnesota,
Respondent,

vs.

Donald Jerome Harris,
Appellant.

Filed March 18, 2024
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CR-21-2956

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges his convictions of third-degree murder and criminal vehicular
homicide, arguing that the verdicts are l egally inconsistent. Appellant also filed a pro se
2
supplemental brief challenging the sufficiency of the evidence supporting his third-degree-
murder conviction. We affirm.
FACTS
On May 25, 2021, appellant Donald Harris drove to Minneapolis, purchased heroin,
“ingested a fingernail’s amount intranasally,” and proceeded to drive home. While driving
through New Brighton, Harris ’ vehicle struck Mary Preciado, who was standing in the
parking lane in front of her house cleaning up grass clippings. Harris’s vehicle struck
Preciado with such force that “her shoes were left behind where she had stood, and the
shovel she was using shattered into pieces.” The impact forced Preciado up and over
Harris’s vehicle, causing her head to hit the windshield. She ultim ately landed
approximately 100 feet away, and the “injuries she sustained were catastrophic and
immediately fatal.” After the impact, Harris did not stop or slow down, instead he
continued driving until he crashed into a grassy median and hit a sign, disabling his vehicle.
Respondent State of Minnesota charged Harris with third -degree murder (count I),
criminal vehicular homicide —any amount of schedule one or two controlled substance
(count II), criminal vehicular homicide—leaving the scene of an accident (count III), and
fifth-degree possession of a controlled substance (count IV). Following a bench trial, the
district court found Harris guilty as charged. The district court subsequently denied
Harris’s motion for a downward dispositional departure and sentenced Harris to 150
months in prison for the third -degree-murder offense. Although Harris was convicted of
counts I, III, and IV, guilt was not adjudicated on count II. This appeal follows.

3
DECISION
I.
Harris argues that the district court’s guilty verdicts for third -degree murder and
criminal vehic ular homicide are legally inconsistent. “Whether verdicts are legally
inconsistent is a question of law reviewed de novo.” State v. Laine, 715 N.W.2d 425, 434-
35 (Minn. 2006).
Under Minnesota law, an individual is guilty of third -degree murder if he or she,
“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 depra ved mind, without regard for
human life.” Minn. Stat. § 609.195(a) (2020). And
a person is guilty of criminal vehicular homicide . . . if the
person causes the death of a human being not constituting
murder or manslaughter as a result of operating a mot or
vehicle:

. . . .

(6) in a negligent manner while any amount of a
controlled substance listed in Schedule I or II . . . is present in
the person’s body; [or]

(7) where the driver who causes the collision leaves the
scene of the collision in violati on of section 169.09,
subdivision 1 or 6.

Minn. Stat. § 609.2112, subd. 1(a)(6), (7) (2020).
Harris argues that the district court’s guilty verdicts for criminal vehicular homicide
are “legally inconsistent with its guilty verdict [for third -degree murder] because proving
the necessary elements of either criminal vehicular homicide offense requires negating an
4
element of third -degree murder.” Specifically, Harris argues that, in order to find him
guilty of criminal vehicular homicide, the district court was required to find that he caused
the death of another in a manner “not constituting murder.” See Minn. Stat. § 609.2112,
subd. 1(a) (2020). Harris contends that, because the district court found him guilty of third-
degree murder, he cannot also be gui lty of criminal vehicular homicide for the same act
because a third-degree murder conviction has been deemed to constitute murder. As such,
Harris argues that his convictions of third-degree murder and criminal vehicular homicide
are legally inconsistent.
We acknowledge that , although Harris’s argument may demonstrate a logical
inconsistency, only a legal inconsistency will invalidate guilty verdicts . State v. Moore ,
458 N.W.2d 90, 93 -95 (Minn. 1990); State v. Juelfs , 270 N.W.2d 873, 873 -74 (Minn.
1978); State v. Christensen, 901 N.W.2d 648, 651 (Minn. App. 2017). To evaluate whether
two verdicts are legally inconsistent, courts consider the elements of the challenged
offenses. See Steward v. State , 950 N.W.2d 750, 755-56 (Minn. 2020). “Legal
inconsistency occurs only when proof of the elements of one offense negates a necessary
element of another offense.” Christensen, 901 N.W.2d at 651 (quotation omitted). “A
legally inconsistent verdict requires that two guilty verdicts be mutually exclusive.” Id.;
see Moore, 458 N.W.2d at 94 (“We are unable to reconcile the jury’s finding that [the]
defendant caused the death of his wife with premeditation and intent and at the same time
caused that death through negligence or reckless conduct.”).
Here, Harris’s legal-inconsistency argument is dependent upon “not constituting
murder” being an element of criminal vehicular homicide. But as the state points out, if
5
“not constituting murder” was an element of criminal vehicular homicide, the state wou ld
have been required to prove that the defendant is not guilty of first, second, or third-degree
murder in order to obtain a conviction for criminal vehicular homicide. Such a requirement
defies common sense and is inconsistent with caselaw addressing a similar clause in the
third-degree-murder statute.1
In State v. H all, the supreme court considered whether the third -degree-murder
statute requires the State to prove beyond a reasonable doubt that the defendant acted
without an “‘intent to effect the death of any person.’” 931 N.W.2d 737, 740 (Minn. 2019)
(quoting Minn. Stat. § 609.195(a)). In considering this issue, the supreme court analyzed
two different lines of precedent: the Stokely2 line, which “held that the ‘without’ clause of
the statute th at was the precursor to the current third -degree murder statute was not an
element of the offense,” and the Brechon3 line of precedent, which “viewed the ‘without’
clause [in a criminal-trespass] statute as either an element or an affirmative defense.” Id.
The supreme court first discussed Stokely, stating that, in that case, it “rejected the
defendant’s argument that the State was required to demonstrate that the killing ‘was
without a design to effect death’ in the statute that was the precursor to th e current third-
degree murder statute.” Id. (quoting Stokely, 16 Minn. at 293 -94). The supreme court

1 As both parties acknowledge, the pattern jury instruction on criminal vehicular homicide
does not list “not constituting murder” as an element. See 10A Minnesota Practice ,
CRIMJIG 26.01 (2023). But as the parties also acknowledge, the jury instructions are not
binding. State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993) (stating that the language
of the jury instruction guides does not control over the language of the statutes), rev. denied
(Minn. Oct. 19, 1993).
2 State v. Stokely, 16 Minn. 282 (Minn. 1871).
3 State v. Brechon, 352 N.W.2d 745 (Minn. 1984).
6
stated that it had called the defendant’s contention “‘a mistake,’” and “explained that ‘the
defendant’s theory would require the prosecution to negat[e], by affirmative proof, the very
fact which it has to prove affirmatively, to support the first -degree murder charge in the
indictment.’” Id. (quoting Stokely, 16 Minn. at 94).
After discussing Stokely, the supreme court in Hall acknowledged that it applied the
principle from Stokely to Staples, in which it held that the language “‘without a design to
effect death’ in the second -degree manslaughter statute . . . was meant to ‘dispense with’
the requirement that such design be proven.” Id. at 741 (quoting State v. Staples, 148 N.W.
283, 284 (Minn. 1914)). The supreme court stated that, in reaching that decision, it
reasoned:
It cannot be supposed that the Legislature meant thereby to
require affirmative allegation or proof by the state that the
killing was absolutely without design to effect death; for if the
state must allege and prove this, it would follow that the
defendant might base a defense on the ground that the
defendant in fact entertained a design to affect death. No such
absurdity was ever intended.

Id. (quoting Staples, 148 N.W. at 284). The supreme court in Hall further noted that, in
Walker, it “held that the purpose of the clause ‘without intent to inflict great bodily harm’
in an earlier version of a provision of the aggravated-assault statute . . . ‘is to relieve the
prosecution of the burden of proving such an intent, not to require affirmative proof that
there was no intent to inflict the serious injury.’” Id. (quoting State v. Walker, 157 N.W.2d
508, 509-10 (Minn. 1968)).
After analyzing the cases in the Stokely line of precedent, the supreme court
determined that “when the existence of the fact referenced in the ‘without’ clause of the
7
statute constitutes a more serious offense, the Stokely line of precedent applies, and the
State need not prove what follows the word ‘without.’” Id. at 742. In contrast, after
discussing the Brechon line of cases, the supreme court stated that, “when the existence of
the fact referenced in the ‘without’ clause of the statute makes the conduct not criminal, as
opposed to making the conduct a more serious criminal offense, the Brechon line of
precedent applies.” Id. at 743. The supreme court concluded that the Stokely line of
precedent applied in Hall because the “ existence of the fact referenced in the ‘without’
clause of the third-degree murder statute ([that] the defendant intended to effect the death
of a person) makes the defendant’s conduct a more serious offense, namely second-degree
intentional murder.” Id.
In his reply brief, Harris refers to language in Hall noting that the “arguments of the
parties foc us on two different lines of precedent rather than the plain language of the
statute.” Id. at 740. He argues that Hall is not applicable because, unlike the parties in
Hall, he is focusing on the plain language of the statute, and under the plain languag e of
the criminal -vehicular-homicide statute, he cannot be found guilty of both criminal
vehicular homicide and third-degree murder.
We are not persuaded. Recently, the supreme court considered whether
“unlawfully” was an element of the first -degree arso n statute. State v. Beganovic , 991
N.W.2d 638, 647 (Minn. 2023). In considering this question, the supreme court stated that
a determination of the elements of an offense is a question of statutory interpretation that
requires de novo review. Id. Therefore, Beganovic indicates that a determination of the
elements of an offense is a legal question for the courts to decide. See id. And in
8
considering this legal question, the supreme court looked to the plain language of the first-
degree-arson statute, a s well as caselaw analyzing statutes with similar language. Id. at
647-53 (acknowledging that its decision that the legislature intended “unlawfully” to be an
element of first -degree arson “is consistent with the court’s precedents analyzing the
distinction between an element of a crime and an exception to criminal liability in other
statutes”). Accordingly, under Beganovic, it is appropriate for us to consider the supreme
court’s reasoning in Hall because Hall construed a “without” clause similar to the clause
contained in the criminal-vehicular-homicide statute.
Harris also argues that, even if Hall is considered, it “does not require a finding in
[the state’s] favor because the phrase at issue here (‘not constituting murder’) does not fit
squarely along the narrower ‘without’ clauses addressed in the Stokely line of precedent.”
Indeed, the “without” clause contained in section 609.195(a), and discussed in Hall, is not
identical to the “not constituting murder” clause contained in the criminal -vehicular-
homicide statute. Compare Minn. Stat. § 609.195(a) with Minn. Stat. § 609.2112, subd.
1(a). But the two clauses are nearly identical and functionally equivalent. For example,
“without” could be substituted for “not” in section 609.2112, subdivision 1(a ), without
changing the meaning of the statute. In this scenario, the statute would read that a person
is guilty of criminal vehicular homicide “if the person causes the death of a human being
[without] constituting murder or manslaughter as a result of o perating a motor vehicle.”
Minn. Stat. § 609.2112, subd. 1(a). Thus, in light of the similarity between the “without”
clause discussed in Hall, and the “not constituting murder” clause contained in section
609.2112, subdivision 1(a), the reasoning set forth in Hall is applicable to this case.
9
Applying the reasoning set forth in Hall, the Brechon line of precedent is clearly not
applicable here because the “not constituting murder” clause contained in the criminal -
vehicular-homicide statute does not make t he conduct of causing the death of a human
being not criminal. See Hall , 931 N.W.2d at 742 (stating that “the Brechon line of
precedent applies when the existence of the fact referenced in the ‘without’ clause of the
statute makes the conduct not criminal ”). Instead, the Stokely line of precedent is
applicable because the existence of the fact referenced in the “not constituting murder”
clause, which would be murder in the first, second, or third degree, makes the offense more
serious. See id. (stating that “when the existence of the fact referenced in the ‘without’
clause of the statute constitutes a more serious offense, the Stokely line of precedent
applies”). Under Hall, an application of the Stokely line of precedent to this case
demonstrates that “not constituting murder” is not an element of criminal vehicular
homicide. See 931 N.W.2d at 743 (“Applying the Stokely line of precedent to this case, we
conclude that the ‘without intent to effect the d eath of any person ’ clause of the third -
degree murder statute, Minn. Stat. § 609.195(a), does not require the State to prove beyond
a reasonable doubt that the defendant lacked an ‘intent to effect the death of any person.’”);
see also Steward, 950 N.W.2d at 755 (stating that “a ‘without’ clause in which existence
of the fact referenced in the clause would constitute a more serious offense does not set out
an element of the offense—it merely causes one offense to be a lesser -included offense to
the other”). Therefore, we conclude that, because “not constituting murder” is not an
element of criminal vehicular homicide under Minn. Stat. § 609.2112, subd. 1(a), the
10
district court’s guilty verdicts for criminal vehicular homicide and third-degree murder are
not legally inconsistent.
II.
Harris filed a pro se supplemental brief challenging only the sufficiency of the
evidence supporting his conviction of third -degree murder. In considering a claim of
insufficient evidence, this court conducts a painstaking analysis of the record to determine
whether the evidence, when viewed in the light most favorable to the verdict, is sufficient
to allow the factfinder to reach its verdict. State v. Webb , 440 N.W.2d 426, 430 (Minn.
1989). We assume that “the [factfinder] believed the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Ordinarily,
we will not disturb the verdict if the finder of fact , acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the charged offense. Bernhardt v.
State, 684 N.W.2d 465, 476-77 (Minn. 2004).
To prove that Harris is guilty of third-degree murder, the state was required to prove
that Harris committed an act that (1) cause d the death of another, (2) was eminently
dangerous to others, and (3) evinced a depraved mind without regard for human life. Hall,
931 N.W.2d at 740 -41 (listing the elements of third-degree murder). Harris appears to
argue that the state failed to prove that he is guilty of third -degree murder because “the
evidence shows his diminished physical capacity and proves [that] he did not have the
actual ability to be able to commit this crime.” (Emphasis omitted.) We disagree.
11
Whether Harris had diminished capacity is not a defense recognized in Minnesota.
See Leake v. State, 737 N.W.2d 531, 542 (Minn. 2007). But “[d]iminished mental capacity
is different from diminished physical capacity.” State v. Willey , 480 N.W.2d 127, 130
(Minn. App. 1992), rev. denied (Minn. Mar. 19, 1992). This court in Willey recognized
that diminished physical capacity is a defense in Minnesota. Id.
To the extent that Harris is arguing that he did not have the physical capacity to
commit third-degree murder, this argument fails. The record reflects, and Harris does not
dispute, that he drove the vehicle that struck and killed Preciado. As such, Harris had the
physical capacity to commit the offense. Moreover, the record reflects that Harris struck
and killed Preciado after driving to Minneapolis, snorting a fingernail’s worth of heroin,
and then driving erratically through well -populated, residential neighborhoods in an
intoxicated state. And the record reflects that Harris admitted that he knew that his conduct
was wrong and dangerous. This evidence satisfies the elements needed to prove third -
degree murder. Accordingly, the evidence is sufficient to support the district court’s
finding that Harris is guilty of third-degree murder.4
Affirmed.

4 We note that there is no argument by either party that the district court violated section
609.04, subdivision 1, by entering convictions for both third -degree murder and criminal
vehicular homicide—leaving the scene of an accident. See Minn. Stat. § 609 .04, subd. 1
(2022) (stating that “[u]pon prosecution for a crime, the actor may be convicted of either
the crime charged or an included offense, but not both”).