                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0478

                                  State of Minnesota
                                     Respondent,

                                         vs.

                              Brian Leonard Anderson,
                                     Appellant.

                              Filed February 23, 2015
                                     Affirmed
                               Stoneburner, Judge

                           Kandiyohi County District Court
                               File No. 34-CR-13-222


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

John E. Mack, Mack and Daby, P.A., New London, Minnesota (for appellant)


      Considered and decided by Stauber, Presiding Judge; Worke, Judge; and

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

STONEBURNER, Judge

       Appellant challenges his misdemeanor conviction of improper passing in violation

of Minn. Stat. § 169.18, subd. 3(3) (2012), arguing that (1) the statute does not apply to

his conduct because he was unaware that he was passing a bicycle; (2) the district court

erred by refusing to instruct the jury that in order to find him guilty it must find that he

knew or should have known he was passing a bicycle; and (3) the district court erred by

imposing a misdemeanor sentence absent a jury finding of endangerment or submission

of the issue to a Blakely jury. We affirm.

                                         FACTS

       On a very dark early October morning in 2012, appellant Brian Leonard Anderson,

driving a semi-truck without a trailer on Highway 71, struck and killed a bicyclist who

was traveling in the same direction on the highway. A portion of Anderson’s bumper

collided with the pedal area of the bicycle as his semi-truck traveled at about the 60-

miles-per-hour speed limit and overtook and began passing the bicycle.            The state

charged Anderson with misdemeanor careless driving in violation of Minn. Stat.

§ 169.13, subd. 2 (2012), and with failure to allow a safe distance when passing or

overtaking a bicycle in violation of Minn. Stat. § 169.18, subd. 3(3), penalized as a

misdemeanor under Minn. Stat. § 169.89, subd. 1(1) (2012).1


1
  Minn. Stat. § 169.89, subd. 1(1), in relevant part, makes it a misdemeanor “for any
person to do any act forbidden” by chapter 169 if “a violation . . . is committed in a
manner or under circumstances so as to endanger or be likely to endanger any person or
property.”

                                             2
       Although on other early morning trips Anderson and other truck drivers had

recently observed a bicyclist traveling on the area of the highway where the accident

occurred, the evidence at trial conclusively showed that, on the day of the accident,

Anderson did not see the bicyclist before the collision. The evidence also demonstrated

that the bicyclist was visible on the day of the accident from a distance that would permit

safe passing, including: (1) testimony from another truck driver, only minutes ahead of

Anderson on the day of the accident, who saw the bicyclist and safely passed him; (2) the

type of reflective vest worn by the cyclist was shown in reconstruction tests to be visible

from nearly 900 feet in high-beam headlights and nearly 600 feet in low-beam headlights;

and (3) the lack of any direct evidence of any conduct by Anderson or condition of his

equipment explaining his failure to see the cyclist.

       During the preparation of jury instructions, Anderson requested that the district

court instruct the jury that in order to find him guilty of failing to allow a safe distance

when passing, the jury had to find that he knew or should have known of the presence of

the cyclist on the highway. The district court declined to give the instruction, opining

that such an instruction would excuse inattentive driving and “change[] the substance of

the statute.”

       In closing argument, Anderson argued to the jury that he was not in the act of

passing, which, he asserted, requires an intentional movement around the other vehicle.

On rebuttal, the state argued that under any definition of passing, Anderson plainly

passed the bicycle and the law does not require more for a conviction.




                                             3
       During deliberations, the jury asked the district court for a definition of passing as

it applies to the statute and whether the definition contains an intent requirement. The

district court instructed the jury that the law does not contain a definition of passing and

that they should use their common sense understanding of the word. With regard to

intent, the district court referred the jury to the instructions given and again urged them to

use their common sense and good judgment.

       The jury found Anderson not guilty of careless driving but guilty of violating

Minn. Stat. § 169.18, subd. 3(3), by conduct that endangered persons or property. The

district court sentenced Anderson to 90 days in jail, stayed, a $1000 fine, and community

service. This appeal followed.

                                      DECISION

I.     Minn. Stat. § 169.18, subd. 3(3) (2012), applies to Anderson’s conduct.

       Anderson asserts the “inappropriateness of convicting someone of a crime for

which imprisonment is authorized where the defendant neither intended the action for

which he was convicted nor knew he was performing such an action.” To support this

assertion, he first argues that the statute under which he was charged does not apply to his

conduct. Minn. Stat. § 169.18, subd. 3(3), provides, in relevant part:

              The operator of a motor vehicle overtaking a bicycle or
              individual proceeding in the same direction on the roadway
              shall leave a safe distance, but in no case less than three feet
              clearance, when passing the bicycle or individual and shall
              maintain clearance until safely past the overtaken bicycle or
              individual.




                                              4
       Anderson asserts that this language “does not apply to the situation where a

vehicle inadvertently sideswipes a bicyclist without intending to pass him.” Anderson

premises his argument on the assertions that (1) the jury found his failure to see the

bicyclist was not due to negligence and (2) one cannot pass without intending to, so

therefore he was not engaged in the act of passing within the meaning of Minn. Stat.

§ 169.18, subd. 3(3), a statute he believes contains a scienter requirement.

       The flaw in this argument is Anderson’s assertion that the jury found him “not

negligent” in failing to see the bicyclist. The jury found that Anderson is not guilty of

careless driving, but for that charge the jury was not asked to decide if he was negligent

in failing to see the bicycle. We do not construe that verdict as precluding a jury finding

that Anderson, albeit unknowingly, drove his semi-truck such that it overtook and began

passing a visible cyclist without leaving a safe distance.2

       We view Anderson’s argument as a challenge to the sufficiency of the evidence to

support the verdict.    When reviewing the sufficiency of the evidence supporting a

conviction, we carefully review the record to determine if the evidence produced at trial,

viewed in the light most favorable to the verdict, was sufficient to allow the jury to reach

a guilty verdict. State v. Berrios, 788 N.W.2d 135, 141 (Minn. App. 2010), review

2
  While not briefed on appeal, Anderson claimed, before the district court and this court
at oral arguments, that the verdicts were “perverse” and logically inconsistent. Even if
the verdicts could be said to be logically inconsistent, that does not make them legally
inconsistent, as “[n]othing in the constitution requires consistent verdicts.” State v.
Leake, 699 N.W.2d 312, 325 (Minn. 2005). “We have ruled in numerous cases that a
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.” State v. Netland, 535 N.W.2d 328, 331 (Minn. 1995) (noting that
jury lenity is an aspect of the right to jury trial).

                                              5
denied (Minn. Nov. 16, 2010). Because Anderson’s vehicle moved alongside the bicycle,

struck its pedal area, and proceeded past the bicycle, the evidence plainly establishes that

Anderson overtook and passed the cyclist. Further, the evidence also establishes that the

cyclist was visible from a distance that permitted safe passing. The evidence is sufficient

to support the verdict.

II.    Even if the district court erred by failing to give Anderson’s requested
       instruction, such error was harmless.

       Anderson argues at length that the district court erred by failing to instruct the jury

that in order to find him guilty of violating Minn. Stat. § 169.18, subd. 3(3), it had to find

that Anderson was aware or should have been aware of the presence of the bicycle on the

roadway.      Anderson argues that without this instruction, the statute imposes strict

liability; the state does not disagree and argues that the statute does impose strict liability.

       The district court’s refusal to give a jury instruction is reviewed for an abuse of

discretion.   State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012).               We review the

instructions “to determine whether they fairly and adequately explained the law of the

case,” and error results if the instruction “materially misstates the law.” State v. Kuhnau,

622 N.W.2d 552, 556 (Minn. 2001). But even if the jury instructions were in error, a new

trial is not required if the error is harmless beyond a reasonable doubt. See id. at 558–59.

       Anderson contends that by failing to use his jury instruction, the district court

failed to instruct the jury on an essential element of the offense. “[T]he omission of an

element of a crime in a jury instruction does not automatically require a new trial.” State

v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). Instead, the supreme court has directed us



                                               6
to examine several factors in determining whether the instruction was sufficiently

prejudicial as to constitute reversible error: “whether (1) the defendant contested the

omitted element and submitted evidence to support a contrary finding, (2) the State

submitted overwhelming evidence to prove that element, and (3) the jury’s verdict

nonetheless encompassed a finding on that element.” Id. at 29. In light of these factors,

the error is harmless if, “beyond a reasonable doubt, [it] had no significant impact on the

verdict rendered.” State v. Hall, 722 N.W.2d 472, 477 (Minn. 2006).

       We conclude that any potential error of the district court did not significantly

impact the jury’s verdict due to the evidence produced at trial that the bicyclist was

visible to Anderson. The testimonies of another truck driver who successfully passed the

cyclist and the accident reconstruction expert who tested the visibility of the type of

reflective vest worn by the cyclist, demonstrated that the bicyclist was, at the relevant

time and place, visible from a distance that permitted safe passing. Anderson also

acknowledged having seen a bicyclist in the early morning hour in that vicinity several

times in the recent past. Anderson had no explanation for his failure to see the cyclist

that morning. We conclude with certainty beyond a reasonable doubt, that the verdict

would have been the same had the jury been instructed that it was required to find that

Anderson “should have been aware of the presence of the bicycle on the roadway” in

order to convict him of failing to allow a safe distance when overtaking.

       The parties debate whether section 169.18, when treated as a misdemeanor, is a

strict-liability statute. We conclude that we need not reach that issue in this case because

any potential error in the jury instructions would be harmless beyond a reasonable doubt.


                                             7
We leave for other circumstances a ruling on whether the statute imposes strict liability

when a misdemeanor penalty is sought for the violation.

III.   Anderson was not entitled to a Blakely jury.

       Anderson’s final argument is that the district court erred by “imposing a sentence

. . . which would have been proper if the jury had convicted him of careless driving

without a jury finding of endangerment or the submission of the issue of endangerment to

a Blakely jury.” In his brief on appeal, Anderson asserts that “neither the [district] court

nor the jury found that Mr. Anderson’s violation of § 169.18, subd. 3(3) was committed

‘under circumstances so as to endanger or be likely to endanger any person or property.’”

This assertion is not correct. The jury was instructed that in order to find Anderson guilty

of violating Minn. Stat. § 169.18, subd. 3(3), it had to find that: (1) Anderson operated a

vehicle upon a street or highway; (2) Anderson overtook a bicyclist; (3) Anderson failed

to maintain a safe distance when overtaking and passing; (4) Anderson’s driving conduct

endangered or was likely to endanger persons or property; and (5) that the accident

occurred on or about October 16, 2012, in Kandiyohi County.

       We are not persuaded by Anderson’s argument that the failure of the complaint to

state the endangerment requirement in the narrative portion of the charge resulted in

Anderson being charged only with a petty misdemeanor that the state sought to

“enhance” to a misdemeanor, thereby requiring a Blakely jury to separately determine

endangerment. First of all, Anderson has likely waived such a challenge to the charging

document, because he raised this issue for the first time on appeal. See State v. Matthews,

779 N.W.2d 543, 553 (Minn. 2010) (providing that objections to the complaint must be


                                             8
made at least three days before the omnibus hearing or they are waived); see also Roby v.

State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that issues not raised in district court,

including “constitutional questions of criminal procedure,” are generally not considered

for the first time on appeal).

       And even if we reach the merits of Anderson’s complaint challenge, he has not

shown any prejudice to his substantial rights resulting from the deficient narrative

statement. See Minn. R. Crim. P. 17.06, subd. 1. The complaint expressly states that the

charge is subject to the penalty contained in Minn. Stat. § 169.89, subd. 1(1). The record

demonstrates that this matter was tried as a misdemeanor and the bulk of Anderson’s

arguments on appeal assert that he was charged with a misdemeanor violation of Minn.

Stat. § 169.18, subd. 3(3), undermining his assertion at oral argument that he had the right

to assume that he was being tried for a petty misdemeanor violation of Minn. Stat.

§ 169.18, subd. 3(3), and would be entitled to a Blakely jury on the issue of

endangerment.

       Therefore, we find no merit in Anderson’s challenge to the complaint in this case,

and because the jury was asked to determine and did determine endangerment as an

element of the offense charged, his argument that his sentence was illegally enhanced is

equally unavailing.

       Affirmed.




                                             9
