                          This opinion will be unpublished and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
                                     A15-1426

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                    Daniel Lee Kruse,
                                       Appellant.

                                  Filed June 27, 2016
                                       Affirmed
                                   Connolly, Judge

                             Hennepin County District Court
                               File No. 27-CR-14-27853


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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Kirk,

Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges his conviction of felony possession of burglary or theft tools,

arguing that the district court abused its discretion and committed reversible error in

instructing a deadlocked jury. Because the jury instruction was not an abuse of discretion,

we affirm.

                                          FACTS

       On March 3, 2015, appellant Daniel Kruse had a jury trial on a charge of felony

possession of burglary or theft tools. Before the jury retired on March 3, the district court

read 10 Minnesota Practice CRIMJIG 3.04 (2014) as part of the instructions. The jury

deliberated for an hour and a half, until 4:30 p.m., during which time it sent two notes to

the district court, one concerning a witness’s testimony and the other about the “weight of

eyewitness testimony.”

       About an hour after the jury reconvened the next morning, it sent the district court

another note. This note said, “Your Honor, at this point we struggle for a unanimous

decision. After [choosing] to sleep on it, we find for various reasons we are divided six-

six.” The district court read the note aloud to the attorneys and remarked that the jurors

“haven’t really been deliberating awfully long . . . [I]t was only an hour [this morning and]

an hour-and-a-half last night.” Both attorneys agreed that deliberations should continue.

       The district court then repeated to the jury some of the instructions it had heard the

previous day:




                                             2
              Your job will be to find what the facts are in this case by
              considering the evidence. Your best guide is your own good
              judgment, experience and common sense. You must decide
              what testimony to believe and how much weight to give it.
              You must decide the facts. You and only you can decide the
              facts. Do not take anything I say or do as a sign of what the
              verdict should be.
                      Once facts are decided you must follow the law. You
              must follow the law, even if you don’t agree with it. It is your
              duty to decide the questions of fact in this case. It is my duty
              to give you the rules of law you must apply in arriving at your
              verdict. You must follow and apply the rules of law as I give
              them to you, even if you believe the law is or should be
              different. Deciding questions of fact is your exclusive
              responsibility.
                      Finally, in order for you to return a verdict, whether
              guilty or not guilty, each juror must agree with that verdict.
              Your verdict must be unanimous.
                      You should discuss the case with one another and
              deliberate with a view toward reaching agreement if you can
              do so without violating your individual judgment. You should
              decide the case for yourself, but only after you have discussed
              the case with your fellow jurors and have carefully considered
              their views. You should not hesitate to reexamine your views
              and change your opinion[s] if you become convinced they are
              erroneous, but you should not surrender your honest opinion
              simply because other jurors disagree or merely to reach a
              verdict.
                      So I’ll ask you to go back and deliberate again, and
              obviously the deputy will take you to lunch if it gets to be
              lunchtime.

Appellant did not object to these instructions, which are verbatim renderings of parts of 10

Minnesota Practice CRIMJIG 1.02 (2014) and of CRIMJIG 3.04.

       The jury returned with a guilty verdict; the verdict form indicated that the time was

12:43 p.m. Appellant challenges his conviction on the ground that the instruction in

response to the deadlocked jury’s note was an abuse of discretion.




                                             3
                                      DECISION

         “We apply our abuse of discretion standard when reviewing a district court’s charge

to a jury to continue deliberating after the jury has indicated it was deadlocked.” State v.

Cox, 820 N.W.2d 540, 550 (Minn. 2012).

         Appellant argues that the instructions repeated after the jury reported a deadlock

were coercive and that the district court “instructed jurors in such a way that jurors

concluded that they were required to reach a verdict or that a deadlock was not an option.”

But the district court specifically told the jurors to “deliberate with a view toward reaching

agreement if you can do so without violating your individual judgment,” thus

acknowledging the possibility that the jurors would not be able to come to an agreement if

doing so would violate the individual judgment of even one juror.

         Appellant relies on State v. Jones, 556 N.W.2d 903 (Minn. 1996) to argue that

“simply reinstructing the jury on CRIMJIG 3.04 after instructions using the mandatory

language of CRIMJIG 1.02 was not a cure-all.” His reliance is misplaced: the language to

which he refers in the Jones instruction, “giving the proper charge, CRIMJIG 3.04, when

the jury reache[s] a deadlock . . . is not a panacea,” was given as part of a direction to

district courts to give jury instructions verbatim rather than to paraphrase them. Jones, 556

N.W.2d at 911. “Having earlier paraphrased CRIMJIG 3.04, the trial court properly

responded to the jury’s impasse by reading 3.04 verbatim.” Id. at 912. Here, the district

court read CRIMJIG 3.04 verbatim to the jury before it retired, then read CRIMJIG 3.04

verbatim again after the jury reported an impasse, so the problem of paraphrasing did not

arise.


                                              4
       Moreover, here as in Jones, the amount of time the jury spent deliberating was not

excessive, and instructing it to keep deliberating did not coerce it and did result in a verdict.

There was no abuse of discretion in the jury instructions. Indeed, this was a textbook

response by the district court to a deadlocked jury and we commend the district court for

its handling of this case.

       Affirmed.




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