944 N.W.2d 469

Minn. Ct. App.

2020

State of Minnesota, Respondent, vs. Eric Joseph Coleman, Appellant.

A19-0708

STATE OF MINNESOTA IN COURT OF APPEALS

Filed April 27, 2020

Cochran, Judge

Affirmed in part, reversed in part, and remanded. Chisago County District Court, File No. 13-CR-18-89

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

Janet Reiter, Chisago County Attorney, David Hemming, Assistant County Attorney, Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Cochran, Judge; and Segal, Judge.

S Y L L A B U S

The depraved-mind mens rea element of third-degree murder under Minn. Stat. § 609.195(a) (2016) requires the district court to instruct the jury that an actor evinces a depraved mind when the actor engages in conduct that the actor is aware creates a substantial and unjustifiable risk to human life and consciously disregards that risk.

OPINION

COCHRAN, Judge

A jury found appellant Eric Joseph Coleman guilty of third-degree murder, two counts of criminal vehicular homicide, two counts of criminal vehicular operation, and two counts of driving while impaired. The district court entered convictions for all seven offenses.

On appeal from his convictions, Coleman argues that (1) the district court plainly erred in instructing the jury on the mens rea element of third-degree murder; (2) the district court abused its discretion by admitting evidence of a prior alcohol-related driving incident; (3) the evidence was insufficient to sustain his conviction of third-degree murder; (4) the state committed prosecutorial misconduct during opening and closing arguments by inflaming the passions and prejudices of the jury; and (5) the district court erred by entering convictions for both counts of criminal vehicular operation and both counts of driving while impaired.

We affirm Coleman‘s conviction of third-degree murder. But with regard to the criminal-vehicular-operation convictions and the driving-while-impaired convictions, we conclude that the district court erred by imposing two convictions, rather than one conviction, for each of these offenses because the convictions arose out of the same behavioral incident. Accordingly, we affirm in part, reverse in part, and remand for the district court to vacate one of the criminal-vehicular-operation convictions and one of the driving-while-impaired convictions.

FACTS

On the night of January 26, 2018, Coleman drove his snowmobile at a speed of 58 miles per hour (mph) on a lake where people were ice fishing. Coleman did so after drinking several alcoholic beverages. Coleman struck an eight-year-old child with his snowmobile and then struck the child‘s father, injuring both father and son. The child later died.

Coleman was indicted by a grand jury on the following offenses: one count of third-degree murder; two counts of criminal vehicular homicide; two counts of gross misdemeanor criminal vehicular operation; and two counts of gross misdemeanor driving while impaired (DWI).

Before trial, respondent State of Minnesota filed notice of its intent to introduce evidence that, in November 2017, Coleman committed the offense of criminal vehicular operation. Over Coleman‘s objection, the district court granted the state‘s motion “to admit evidence of a prior alcohol-related crash.”

At trial, evidence was presented that on January 26, 2018, a father (father) and mother, one of their daughters, and their eight-year-old son (hereinafter “son” or “the child“) went to Chisago Lake to ice fish. It had been a “warm,” 40-degree day and there were a number of people on the lake. The family drove their pickup truck onto the lake and arrived at their ice-fishing spot at about 7:30 p.m. The spot they picked was in an area of the lake just south of where “there‘s a lot of other fish houses and different stuff on the lake.” Although it was “exceptionally bright” on the lake that night, the sun had set and it was “dark enough where you would have to turn your lights on.” But not all of the fish houses and vehicles on the lake had lights on.

After arriving at their spot, father began to set up the family‘s portable ice-fishing house. According to father, the fish house is over six feet tall when set up, and has reflectors on all four corners. As father was inside the fish house setting it up, the family heard a snowmobile start “a little ways” from their pickup truck. Mother and son were outside near the truck. The child was “very interested” in snowmobiles, and “walked down to the end of the truck to watch the snowmobile go by.” Mother then observed the snowmobile “coming right towards” them, and “tried to yell for her son to get out of the way.” But “as soon as [mother] could tell him to get out of the way,” the “snowmobile . . . hit the truck and hit [the child] and went straight through the [fish] house.” Both father and his son were injured. The child was airlifted to a hospital and died several days later from his injuries.

Responding officers testified that after arriving at the scene, they spoke with Coleman, who was injured after being thrown from his snowmobile. Coleman admitted driving his snowmobile and hitting the pickup truck. An officer testified that Coleman stated that the truck “basically came out of nowhere and he didn‘t have time to react.” The officer also testified that Coleman displayed bloodshot and watery or glassy eyes, consistent with possible impairment. A blood test revealed that Coleman had an alcohol concentration of 0.165 approximately three hours after the incident.

Coleman testified at trial and acknowledged that he drove the snowmobile that struck father and the child. According to Coleman, he drank several higher-alcohol-content beers on January 26, 2018, at his house and made plans to see where his son was ice fishing. Coleman, who testified that he has done “a lot” of ice fishing, then drove his snowmobile out to the lake where his son and his daughter‘s boyfriend were fishing. The three talked for a while and Coleman‘s son and daughter‘s boyfriend each took a turn riding Coleman‘s snowmobile. Coleman‘s daughter‘s boyfriend testified that he and Coleman‘s son traveled in a southerly direction away from where they were fishing near a cluster of fish houses, and that there were numerous snowmobile tracks on the lake “crisscrossing all directions.” Coleman consumed a beer, which he had brought with him, while talking with the others. Coleman then left on his snowmobile, heading in a southerly direction, and got up to speed. Coleman admitted that he operated the snowmobile at a speed of 58 miles per hour just before hitting the truck.

Coleman acknowledged that he had an alcohol concentration of more than twice the legal limit at the time of the crash. And Coleman admitted that he is aware that drinking and driving is dangerous, and that people die from drinking and driving, because that information is “general, public knowledge.” Coleman further admitted that “[t]o a certain extent,” he has a specific knowledge of the dangers of drinking and driving because on November 2, 2017, he was involved in an alcohol-related crash in which the driver of the other vehicle involved was injured. But Coleman testified that he does not remember anything from that crash because he had an alcohol concentration over 0.30, and was “blacked out” drunk.

The jury found Coleman guilty of all seven charged offenses. The district court then sentenced Coleman to 150 months in prison for third-degree murder and 365 days in jail for one count of gross misdemeanor criminal vehicular operation, to be served concurrently. Coleman was also convicted of, but not sentenced for, the remaining offenses.

This appeal follows.

ISSUES

I. Did the district court plainly err in instructing the jury on the mens rea element of third-degree murder?

II. Did the district court abuse its discretion by admitting evidence of Coleman‘s previous alcohol-related car accident?

III. Was the evidence sufficient to support Coleman‘s conviction of third-degree murder?

IV. Did the prosecution commit prejudicial misconduct by inflaming the passions and prejudices of the jury?

V. Did the district court err by entering convictions for both counts of criminal vehicular operation and both counts of DWI?

ANALYSIS

I.

We first address Coleman‘s argument that the district court erred in instructing the jury on the mens rea¹ element of third-degree murder. Jury instructions, reviewed in their entirety, must fairly and adequately explain the law. State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). A district court has “considerable latitude” in selecting jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). A jury instruction

is erroneous if it materially misstates the law. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

Because Coleman did not object to the jury instructions at trial, he has forfeited appellate review of the jury-instruction issue. State v. Zinski, 927 N.W.2d 272, 275 (Minn. 2019). “But, under the plain-error doctrine, an appellate court has the discretion to consider a forfeited issue if the defendant establishes (1) an error, (2) that was plain, and (3) that affected his substantial rights.” Id. “If the first three prongs are satisfied, the appellate court considers whether reversal is required to ensure the fairness, integrity, or public reputation of judicial proceedings.” Id. at 275 n.5 (quotation omitted). As explained below, we conclude that Coleman has established an error but the error was not plain.

A. Error

We begin by examining whether the district court properly instructed the jury on the mens rea element for third-degree murder. A person commits third-degree murder when he “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 human life.” Minn. Stat. § 609.195(a). Thus, the third-degree murder statute required the state to prove that Coleman: (1) caused the death of another, (2) committed an act that was eminently dangerous 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 district court instructed the jury with regard to the required mens rea or mental state as follows:

Third, [Coleman‘s] intentional act which caused the death of [the child] 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 [the child], 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.

The district court did not define any of the terms included in this instruction.

Coleman argues that this instruction was erroneous because it misstated the law. Coleman contends that to prove the existence of a “depraved mind” for third-degree murder, the evidence must establish that the defendant acted in knowing disregard of a substantial and unjustifiable risk that someone may be killed by the defendant‘s act. Because the third-degree murder jury instruction did not communicate “to the jury that it needed to determine that [Coleman] knew his conduct presented a substantial and unjustifiable risk of causing the death of another,” Coleman contends the instruction was erroneous. Coleman emphasizes that the district court‘s instruction “required only that the jury find [Coleman] acted ‘with knowledge that someone may be killed.‘” And Coleman argues that the district court‘s use of the word “may” “allowed the jury to convict [him] of murder so long as it found [that Coleman] knew of and disregarded some or any level of risk of causing death,” rather than requiring that the jury find that Coleman knew that his conduct presented a “substantial and unjustifiable risk of causing death.” (Emphasis omitted.) In support of his argument, Coleman points to caselaw equating the “depraved mind” mental state included in the third-degree murder statute with the mental state of recklessness.

The state acknowledges that a “depraved mind” mental state is equivalent to recklessness but argues that the jury instructions were not erroneous because the instructions included “specific phrasing [that] the jury must find the defendant‘s act to be ‘reckless or wanton.‘” The state further argues that the instructions need not define each word.

We agree with Coleman that the district court erred when it failed 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. Our conclusion is guided by the supreme court‘s precedent interpreting the mental state of recklessness.

As both parties recognize, the supreme court has held that the mental state required for third-degree depraved-mind murder is “equivalent to a reckless standard.” State v. Barnes, 713 N.W.2d 325, 332 (Minn. 2006). While there is no precedent defining the reckless standard in the context of third-degree murder, the reckless standard was examined in detail by the supreme court in State v. Engle, 743 N.W.2d 592, 593-95 (Minn. 2008), a case involving the reckless-discharge-of-a-firearm offense set forth in Minn. Stat. § 609.66, subd. 1a(a)(3) (2006). In Engle, the court began its analysis by recognizing that the term “reckless” is ambiguous. Id. at 594. The court then noted that two distinct lines of cases offer two different definitions of recklessness. Id.

The first line of cases holds that “‘[a] person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct. Both the reckless actor and the intentional actor create a risk of harm. The reckless actor is aware of the risk and disregards it.“’ Id. (quoting State v. Cole, 542 N.W.2d 43, 51-52 (Minn. 1996)). The supreme court noted that it used this definition in the case of State v. Zupetz, 322 N.W.2d 730, 733-34 (Minn. 1982) to define “recklessly” in the context of reckless homicide. Id. The court also explained that it later applied this definition in Cole, 542 N.W.2d at 51-52, to define recklessness for purposes of another reckless-firearm offense. Id. The supreme court emphasized that this definition “comports with the most common [legal] usage of the term.” Id. (citing 22 C.J.S. Criminal Law § 51 (2006) (“A person is said to act recklessly when he or she consciously disregards a substantial and unjustifiable risk that an injury will occur, or when his or her action is grossly heedless of consequences.“)).

The supreme court then discussed the “definition of ‘recklessness’ in the second line of cases.” Id. The court stated that under the alternative definition, “‘recklessly’ means a conscious and intentional act that the defendant knew, or should have known, created an unreasonable risk of harm to others.” Id. (quotation omitted). Citing State v. Bolsinger, 21 N.W.2d 480 (Minn. 1946), the court noted that “[t]his definition originated in our reckless driving jurisprudence.” Id. But the court determined that “the Bolsinger line of cases expressly limits its definition of ‘recklessness’ to the unique context of reckless driving” as related to Minn. Stat. § 169.13 (2006), and stated that there was “no indication that the legislature intended to apply a reckless driving standard to a wholly separate regulatory scheme.” Id. at 594-95. Thus, the supreme court adopted the definition set forth in the first line of cases and held that “for purposes of [the reckless-discharge-of-a-firearm offense], one acts recklessly by creating a substantial and unjustifiable risk that one is aware of and disregards.” Id. at 595.

After Engle was decided, the definition of “recklessly” was changed in the standard jury instructions in an “attempt to provide a clear explanation of the standard in terms a jury can understand.” 10 Minnesota Practice, CRIMJIG 3.32 cmt. (Supp. 2019) (stating that the “definition of ‘recklessly’ is based upon the decision in . . . Engle,” and “is the Committee‘s attempt to provide a clear explanation of the standard in terms a jury can understand“). “Recklessly,” as defined in the standard jury instructions, now “means that the defendant acted in conscious disregard of a substantial and unjustifiable risk.” 10 Minnesota Practice, CRIMJIG 3.32 (Supp. 2019).

Because the “depraved mind” mental state required for third-degree murder is the equivalent of a reckless standard, we conclude that the third-degree murder statute requires a showing of recklessness consistent with the definition adopted in the first line of cases discussed in Engle and now incorporated into the definition of “recklessly” in the criminal jury instruction guide.² Accordingly, we hold that the “depraved mind” element of the

third-degree murder statute requires proof that the defendant was aware that his conduct created a substantial and unjustifiable risk of death to another person and consciously disregarded that risk. As noted above, this definition of recklessness comports with most common legal usage of the term. See Engle, 743 N.W.2d at 594 (recognizing that the most common legal usage of the term reckless means that the actor consciously disregards a substantial and unjustifiable risk). And there is no indication that the legislature intended that a different standard apply to the third-degree murder statute.

Applying that definition of “recklessness,” we conclude that the jury instruction in this case failed to correctly explain the mens rea element for third-degree murder. Generally, a district court is not required to define words of common usage that are within the jurors’ ordinary understanding. See State v. Harlin, 771 N.W.2d 46, 52 (Minn. App. 2009) (stating that the failure to define “intent” was not error because “intent” has a common meaning), review denied (Minn. Nov. 17, 2009). But here, the ordinary definition of “reckless” differs from the legal definition, and so additional explanation was required to ensure that the instruction adequately explained the law. “Reckless,” as defined in the dictionary, means “[h]eedless or careless,” or “[i]ndifferent to or disregardful of consequences.” The American Heritage Dictionary of the English Language 1460 (4th ed. 2006). This ordinary definition of the term “reckless” is materially different than the legal definition of “reckless” applied in Engle, 743 N.W.2d at 595 (holding that “for purposes of [the reckless-discharge-of-a-firearm offense], one acts recklessly by creating a substantial and unjustifiable risk that one is aware of and disregards“).

Because the district court did not provide a definition of the term “reckless,” we conclude that a reasonable jury would not necessarily understand that before it could find Coleman guilty of third-degree murder, it had to find that Coleman was aware that his conduct created a substantial and unjustifiable risk to human life and that Coleman consciously disregarded that risk. Instead, under the instruction provided, the jury would have been allowed 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. Accordingly, the district court‘s instruction did not adequately explain the law concerning the mens rea element of third-degree murder.

Because the district court failed to properly explain an element of the charged offense, we conclude that the court erred when it instructed the jury on third-degree murder under Minn. Stat. § 609.195(a). See State v. Milton, 821 N.W.2d 789, 806 (Minn. 2012) (stating that the district court erred by failing to explain a required element of the charged offense).

B. Plainness of the Error

Next, we consider whether the district court‘s error in instructing the jury was plain. “An error is plain if it is clear or obvious, which is typically established if the error contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted). In determining whether an error is plain, we consider “the law in existence at the time of appellate review.” State v. Kelly, 855 N.W.2d 269, 277 (Minn. 2014). The supreme court has previously held that the district court‘s failure to provide a specific explanation of an element was not plain error because it had not yet clearly required courts to explain the element in question with the specificity sought by the defendant on appeal. Milton, 821 N.W.2d at 807.

Here, the instruction provided by the district court was essentially a verbatim rendering of the model jury instruction for third-degree murder. See 10 Minnesota Practice, CRIMJIG 11.38 (Supp. 2019). And the model instruction, in its current form, does not define “reckless” or incorporate the definition of “recklessly” included in CRIMJIG 3.32. Moreover, the instruction given by the district court did not contravene existing caselaw. Neither the supreme court, nor this court, has ever, in the context of a third-degree murder case under Minn. Stat. § 609.195(a), required that “recklessly” be defined as a conscious disregard of a substantial and unjustifiable risk. Although the supreme court in Engle applied that definition in a reckless-discharge-of-a-firearm case, that reasoning was applied only to that specific offense. See Engle, 743 N.W.2d at 595. Accordingly, the error in the jury instruction in this case was not plain. See Webster, 894 N.W.2d at 787 (holding that the district court‘s alleged error in its jury instructions was not plain where the instruction was consistent with the standard jury instruction and the supreme court had never required that the language at issue be included). Because Coleman has not established an error that was plain, the error in the jury instructions does not require reversal of the third-degree murder conviction.

II.

We next address Coleman‘s argument that the district court abused its discretion by admitting evidence of Coleman‘s previous alcohol-related offense. Evidence of other crimes or acts is commonly referred to as “Spreigl evidence” after our supreme court‘s decision in State v. Spreigl, 139 N.W.2d 167 (Minn. 1965). State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). “A district court‘s decision to admit Spreigl evidence is reviewed for an abuse of discretion. A defendant who claims the [district] court erred in admitting evidence bears the burden of showing an error occurred and any resulting prejudice.” State v. Griffin, 887 N.W.2d 257, 261-62 (Minn. 2016) (citation omitted).

Spreigl evidence “is not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b)(1); State v. Smith, 932 N.W.2d 257, 266 (Minn. 2019) (stating that “[g]enerally, other-crimes evidence is not admissible to demonstrate that the defendant (a) has a propensity to commit crimes and (b) acted in accord with that propensity“). But Spreigl evidence may be admitted for other limited purposes such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b)(1). To admit Spreigl evidence, the following conditions must be satisfied:

(1) the state must give notice of its intent to admit the evidence; (2) the state must clearly indicate what the evidence will be offered to prove; (3) there must be clear and convincing evidence that the defendant participated in the prior act; (4) the evidence must be relevant and material to the state‘s case; and (5) the probative value of the evidence must not be outweighed by its potential prejudice to the defendant.

State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006).

Coleman challenges the application of the fourth and fifth factors articulated in Ness. He argues that evidence of his prior alcohol-related hit-and-run was “not relevant or material in establishing [his] guilt of third-degree murder because whether drinking and driving is dangerous and could result in someone‘s death is common knowledge and was not disputed at trial.” Coleman also contends that the Spreigl evidence was “unduly prejudicial and was only minimally probative to the only disputed issue in this case.”

A. Relevancy

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. When determining whether Spreigl evidence is relevant and material, the district court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the prior offense and the charged offense in terms of time, place, or modus operandi. State v. Courtney, 696 N.W.2d 73, 83 (Minn. 2005). “[T]he district court must identify the precise disputed fact to which the Spreigl evidence would be relevant.” Ness, 707 N.W.2d at 686 (quotation omitted).

As addressed above, to convict Coleman of third-degree murder, the state was required to prove that Coleman knew that his actions of driving a snowmobile while intoxicated, under the circumstances presented in this case, created a substantial and unjustifiable risk to human life. See Minn. Stat. § 609.195(a). In granting the state‘s motion to admit Spreigl evidence, the district court determined that evidence of Coleman‘s prior alcohol-related hit-and-run “speaks directly to the issue of whether or not [Coleman] had knowledge that his actions were dangerous and could result in someone‘s death.”

The state may use Spreigl evidence to prove knowledge or intent if knowledge or intent is an element of the charged offense. State v. Boykin, 172 N.W.2d 754, 758 (Minn. 1969). In Boykin, the defendant was charged with intentionally receiving a stolen dryer. Id. at 756. The state introduced evidence that he also possessed a stolen TV. Id. The supreme court held that this evidence “makes it difficult for [the defendant] to argue that he did not know the dryer was stolen also.” Id. at 758. The court explained, “[i]t may be possible to be unaware that one has one stolen item, but when he has two stolen items, it is harder to argue that he does not know what is happening.” Id.

Here, similar to Boykin, Coleman‘s prior alcohol-related hit-and-run was relevant to Coleman‘s knowledge of the dangers of driving while intoxicated. The proffered Spreigl evidence consisted of evidence that approximately three months before the snowmobile accident, Coleman was driving with an alcohol concentration of 0.304, hit another vehicle, injured the driver, caused “heavy” damage to the other driver‘s car, fled the scene, and was later arrested and charged with criminal vehicular operation. This evidence demonstrated that Coleman has a particularized knowledge of the dangers of driving while intoxicated. Although, as the state concedes, there is some common knowledge of the dangers of drinking and driving in light of government agencies’ “public service announcements on driving while impaired throughout the years,” these public service announcements do not translate into the intimate, firsthand knowledge of the dangers of drinking and driving that Coleman possessed due to his prior alcohol-related hit-and-run.

Moreover, Coleman‘s argument that knowledge was not an issue due to his admission at trial that he knew of the danger of driving while intoxicated is unpersuasive. As the state points out, Coleman did not provide a statement to law enforcement indicating that he knew that drunk driving can kill. And the state had no ability to call Coleman as a witness, meaning that the state could not rely on the possibility of Coleman testifying at trial and admitting that he understood the risk of death posed by driving while intoxicated.

Finally, as the district court found, the prior offense was sufficiently close to the charged offense in terms of time, place, and modus operandi. First, the prior offense occurred approximately three months before the snowmobile accident. Second, both offenses involved Coleman operating a motor vehicle on public lands in Minnesota. And third, both offenses involved Coleman operating a motor vehicle while having an alcohol concentration of more than twice the legal limit, and ultimately crashing that motor vehicle and causing injuries to another. The Spreigl evidence was, therefore, relevant to the state‘s case by making it more probable that Coleman knew that his actions of driving while intoxicated presented a substantial and unjustifiable risk of death to another. See Minn. R. Evid. 401, 404(b).

B. Potential for Prejudice

Coleman also contends that the probative value of the Spreigl evidence is outweighed by its prejudicial effect. Indeed, as the state concedes, there “is no question [Coleman] suffered some prejudice when the jury heard testimony on the Spreigl incident.” But the relevant inquiry is whether the probative value of the Spreigl evidence outweighs its potential for unfair prejudice. Kennedy, 585 N.W.2d at 389. In the Spreigl context, unfair prejudice “does not mean the damage to the opponent‘s case that results from the legitimate probative force of the evidence; rather, it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” State v. Welle, 870 N.W.2d 360, 366 (Minn. 2015) (quotation omitted).

As addressed above, the Spreigl evidence was highly probative of Coleman‘s knowledge of a substantial risk that driving while intoxicated may result in someone being killed. And although the Spreigl evidence depicts egregious behavior, making it likely to be damaging evidence, the Spreigl evidence did not give the state an unfair advantage. As the state points out, there was virtually no other evidence that it could have offered to show that Coleman had a particularized knowledge that “his action[] of drinking and driving was eminently dangerous.” Moreover, the district court instructed the jury about the limited use of the Spreigl evidence, which lessens the probability of the jury giving undue weight to the evidence. See Kennedy, 585 N.W.2d at 392 (stating that the probability of undue weight being given by the jury to the Spreigl evidence was “lessened” by the reading of cautionary instructions by the district court). Therefore, the district court did not abuse its discretion by admitting the Spreigl evidence.

III.

We next consider Coleman‘s argument that the evidence was insufficient to support his conviction of third-degree murder. When evaluating the sufficiency of the evidence, this court carefully examines the record “to determine whether the facts and the legitimate inferences drawn from them would permit the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d 895, 900 (Minn. 2019) (quotation omitted). We view the evidence “in the light most favorable to the verdict” and assume that the jury “disbelieved any evidence that conflicted with the verdict.” Griffin, 887 N.W.2d at 263. The verdict will not be overturned if the jury, “upon application of the presumption of innocence and the State‘s burden of proving an offense beyond a reasonable doubt, could reasonably have found the defendant guilty of the charged offense.” Id.

To convict Coleman of third-degree murder, the state was required to prove that Coleman, “without intent to effect the death of any person, cause[d] the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” Minn. Stat. § 609.195(a). Coleman argues that there is insufficient evidence demonstrating that he possessed the requisite knowledge—that he acted with a depraved mind.

Knowledge, like intent, is usually proved by circumstantial evidence. See State v. Mattson, 359 N.W.2d 616, 617 (Minn. 1984); see also State v. Schneider, 402 N.W.2d 779, 782 (Minn. 1987) (stating that, generally, the state proves a criminal defendant‘s mental state through circumstantial evidence). Circumstantial evidence is “evidence from which the [fact-finder] can infer whether the facts in dispute existed or did not exist.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted).

In cases such as this one, where the state presents solely circumstantial evidence on one or more elements of an offense, we apply the circumstantial-evidence standard of review. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). The circumstantial-evidence standard requires a “review [of] the sufficiency of the evidence using a two-step analysis.” State v. Barshaw, 879 N.W.2d 356, 363 (Minn. 2016). The first step is to “identify the circumstances proved, deferring to the fact-finder‘s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State.” Id. (quotation omitted). Under the second step of the circumstantial-evidence test, the reviewing court must “independently examine the reasonableness of all inferences that might be drawn from the circumstances proved to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id. (quotation omitted). “Circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002). In this second step, no deference is given to the jury‘s verdict. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017).

Here, the following circumstances were proved at trial: (1) Coleman had ice-fished many times; (2) on January 26, 2018, Coleman drank several higher-alcohol content beers at his house before driving his snowmobile out to Chisago Lake to meet his son and his daughter‘s boyfriend who were ice fishing; (3) it was a “warm” day and there were a number of people on the lake; (4) Coleman‘s son and his daughter‘s boyfriend each briefly drove Coleman‘s snowmobile after Coleman arrived; (5) Coleman drank a beer while talking with the others; (6) when Coleman left on his snowmobile at about 7:30 p.m., it was dark and headlights were necessary; (7) there were numerous fish houses, snowmobiles, and other vehicles on the lake and not all of the fish houses and vehicles had their lights on; (8) there were snowmobile tracks “crisscrossing all directions” on the lake; (9) father and the child had arrived at their ice fishing spot at about 7:30 p.m. and were setting up to begin fishing when they were struck by the snowmobile; (10) Coleman‘s snowmobile reached a speed of about 58 mph shortly before he struck father and the child; (11) father and the child were both injured as a result of the crash, and the child later died from his injuries; (12) Coleman had an alcohol concentration of 0.165 within three hours after the accident; and (13) Coleman was involved in an alcohol-related hit-and-run approximately three months before the snowmobile accident in which the driver of the other vehicle was injured and Coleman had an alcohol concentration of 0.304.

Coleman argues that a reasonable inference from the circumstances proved is that he “did not act with the knowledge that there was a substantial and unjustifiable risk that he would cause [the child‘s] death.” But the facts belie Coleman‘s argument. The state proved, and Coleman does not dispute, that the accident occurred on Chisago Lake on a mild night in which there numerous people, fish houses, and vehicles on the lake. Common sense dictates that, on a popular lake like Chisago Lake, people are often coming and going from the lake, and that snowmobilers share the lake with ice fishermen and women, who are often exposed because they are outside of their fish houses or vehicles, fishing, or walking about. Coleman testified that he is an experienced ice fisherman. But despite being an experienced ice fisherman, Coleman knowingly drove his snowmobile at a speed of 58 mph, at night, on a popular ice-fishing lake, while intoxicated.

The only reasonable inference from these facts is that Coleman knew that his actions posed a substantial and unjustifiable risk of death to another person because he could have hit and killed someone at any time and that he consciously disregarded that risk. This conclusion is reinforced by the fact that just three months earlier, he was involved in a serious alcohol-related hit-and-run offense involving injury to the other driver. Thus, Coleman was well aware of the risks of driving while intoxicated. And the supreme court and this court have previously held that intentionally driving an automobile while intoxicated can constitute the “depraved mind” contemplated by the third-degree murder statute in certain circumstances. See State v. Weltz, 193 N.W. 42, 43 (Minn. 1923) (concluding that defendant‘s act of driving while intoxicated, and “the circumstances attending it may be prima facie evidence that the doer of the act was in fact a man of depraved mind“); see also State v. Montermini, 819 N.W.2d 447, 461-62 (Minn. App. 2012) (holding that the circumstantial evidence presented, including evidence of defendant‘s actions while driving the vehicle, as well as his actions after the crash, were sufficient to support the jury‘s finding that defendant‘s conduct of driving his vehicle while intoxicated evinced a depraved mind), review denied (Minn. Nov. 20, 2012).

Taken as a whole, the evidence demonstrates beyond a reasonable doubt that Coleman was aware that under the circumstances presented, his conduct of driving his snowmobile while intoxicated created a substantial and unjustifiable risk to human life, and Coleman consciously disregarded that risk. In other words, Coleman acted with a “depraved mind.” There is no reasonable inference to the contrary. Thus, the evidence was sufficient to sustain Coleman‘s conviction of third-degree murder.

IV.

We turn to Coleman‘s argument that the state committed prosecutorial misconduct by inflaming the passions and prejudices of the jury during both opening and closing remarks. Because Coleman failed to object at trial, we review the alleged prosecutorial misconduct under a modified plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The defendant bears the burden of establishing error that is plain, but the burden then shifts to the state to prove that the misconduct did not prejudice the defendant‘s substantial rights. Id. If these three elements are met, the court decides whether the error must be remedied to ensure fairness and the integrity of the judicial proceedings. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017).

A prosecutor has “an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt.” Ramey, 721 N.W.2d at 300. And a prosecutor need not present a colorless argument. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). But a prosecutor‘s closing arguments must be “based on the evidence produced at trial, or the reasonable inferences from that evidence.” Id. A closing argument is improper if it “could only have been intended to inflame the jury‘s passions and prejudices.” Id. at 364.

During both opening and closing remarks, the team of prosecutors made several comments about goals that parents have for their children, and emphasized that “[a] parent‘s ultimate goal is to keep their child safe.” The prosecutors also told the jury that it is “a good day when you can tuck your kid into bed at night safe and sound.” Coleman argues that the prosecutors’ statements during opening and closing remarks constitute misconduct because they “were not based on the evidence at trial and served no purpose other than to inflame the passions and prejudices of the jury.”

Assuming, but not deciding, that the prosecutors’ comments constitute plain error, we conclude that any error is not grounds for reversal because the state has shown that the prosecutors’ comments did not affect Coleman‘s substantial rights. An error does not affect substantial rights if “there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotation omitted).

This case was unquestionably an emotionally charged case involving the death of an eight-year-old child. The jury heard emotional testimony from the child‘s mother describing the events surrounding the accident, including finding her son lying “unconscious” on the ice after he was struck by Coleman‘s snowmobile. The jury also heard mother‘s 911 call and her testimony related to the decision to take her son off life support. In addition, the jury heard similar testimony from father related to seeing his son in the hospital, as well as father‘s testimony about not being able to help his son after the accident because of his own injuries. Moreover, the jury heard from the first responders, who described the child‘s condition immediately after the accident, and the procedures that were used to get the child off the ice and into the helicopter that took him to the hospital. And the jury heard evidence pertaining to the extent of the child‘s severe injuries, including (1) injuries to his tibia and fibula that “were broken out of the skin,” (2) an injury to his “adrenal gland,” (3) an injury to his esophagus, (4) “significant fractures to his face” (5) broken right and left femurs that “were completely in half,” (6) significant bleeding, and (7) the most life-threatening, a “severe traumatic brain injury.”

In light of the extensive emotional testimony presented by a number of witnesses at trial, the inflammatory comments made in both the opening and closing remarks likely added little, if any, more emotion to the case. Therefore, because there is no reasonable likelihood that the alleged misconduct had a significant effect on the jury‘s verdict, Coleman is not entitled to a new trial based on his prosecutorial-misconduct claim.

Coleman further argues that even if the alleged prosecutorial misconduct did not in-and-of-itself warrant a new trial, the cumulative effect of the error in admitting the Spreigl evidence, and the prosecutorial misconduct and jury-instruction errors, deprived him of a fair trial. Indeed, in “rare cases,” the effect of cumulative trial errors “can deprive a defendant of his constitutional right to a fair trial when the errors and indiscretions, none of which alone might have been enough to tip the scales, operate to the defendant‘s prejudice by producing a biased jury.” State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012) (quotation omitted). This is not such a “rare” case. As addressed above, the district court did not abuse its discretion by admitting the Spreigl evidence, the error in instructing the jury was not plain, and the evidence was sufficient to sustain Coleman‘s conviction of third-degree murder. Coleman has failed to demonstrate that the cumulative effect of any errors deprived him of his right to a fair trial.

V.

Finally, we consider whether the district court erred by entering two convictions, rather than one conviction, of each of the following offenses: criminal vehicular operation and DWI. “Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). An “included offense” includes “[a] lesser degree of the same crime” and “[a] crime necessarily proved if the crime charged were proved.” Id., subd. 1(1), (4). The supreme court has interpreted section 609.04 to “bar[] multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Whether a conviction violates section 609.04 is a legal question that this court reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).

Coleman was found guilty of all seven counts of the indictment: third-degree murder in violation of Minn. Stat. § 609.195(a); two counts of criminal vehicular homicide in violation of Minn. Stat. § 609.2112, subd. 1(a)(2)(i) (under the influence of alcohol), subd. 1(a)(3) (alcohol concentration of 0.08 or more) (2016); two counts of gross misdemeanor criminal vehicular operation in violation of Minn. Stat. § 609.2113, subd. 3(2)(i) (under the influence of alcohol), subd. 3(3)(3) (alcohol concentration of 0.08 or more) (2016); and two counts of gross misdemeanor DWI in violation of Minn. Stat. § 169A.20, subd. 1b(1) (operate a snowmobile under the influence of alcohol), subd. 1b(5) (operate a snowmobile with an alcohol concentration of 0.08 or more) (2016). Although Coleman was sentenced for only the third-degree murder offense and one of the gross-misdemeanor-criminal-vehicular-operation offenses, the district court entered convictions for all seven offenses.

Coleman argues that the district court erred by entering convictions for both counts of criminal vehicular operation and both counts of DWI because these offenses “arose from the same behavioral incident and derive from two subsections of the same criminal statute.” We agree. In State v. Clark, this court stated that driving under the influence of alcohol and driving with an alcohol concentration over the legal limit “do not necessarily rest upon the same proof and are not lesser-included offenses of each other,” but instructed that section 609.04 “[n]onetheless . . . forbids” multiple convictions under the same statute for the acts committed during a single behavioral incident. 486 N.W.2d 166, 170 (Minn. App. 1992). This court held that it was plain error for the district court to convict the defendant both of driving while under the influence of alcohol and driving with an alcohol concentration over the legal limit because the defendant‘s dual DWI convictions stemmed from the same series of acts. Id. We concluded that “[o]ne of the convictions must be vacated.” Id. at 171.

Similar to Clark, Coleman was convicted of both driving under the influence of alcohol and driving with an alcohol concentration over the legal limit. And Coleman was convicted of criminally operating a motor vehicle under the influence of alcohol and criminally operating a motor vehicle with an alcohol concentration over the legal limit. Applying this court‘s precedent in Clark, it was error for the district court to convict Coleman of both DWI offenses and both criminal-vehicular-operation offenses because the offenses were based on the same behavioral incident. Therefore, we reverse in part and remand with instructions to vacate one of each of Coleman‘s DWI and criminal vehicular operation convictions, but to leave the findings of guilt for these offenses in place.³ See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (stating that when a defendant is found guilty of two offenses that were committed during a single behavioral incident, the proper procedure is “to adjudicate formally and impose sentence on one count only,” but leave the finding of guilt in place so it can be later formally adjudicated if “the adjudicated conviction is later vacated for a reason not relevant to the remaining unadjudicated conviction(s)“).

D E C I S I O N

The district court erred when it instructed the jury on third-degree murder under Minn. Stat. § 609.195(a) because it failed to properly explain a required element of the charged offense. But Coleman is unable to show that the jury-instruction error is plain, or that he is otherwise entitled to a new trial. And Coleman is unable to demonstrate that the evidence is insufficient to sustain his conviction of third-degree murder. Finally, the district court erred by entering convictions for two counts, rather than one count, of each of the following offenses: criminal vehicular operation and DWI. Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

Notes

Mens rea means “[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.” Black‘s Law Dictionary 1134 (10th ed. 2014).

We also note that in 2015, the legislature amended the reckless standard included in the reckless driving statute, Minn. Stat. § 169.13 (2006), that the supreme court referenced in in its discussion of the second line of cases—the line of cases. 2015 Minn. Laws ch. 65, art. 6, § 3, at 523; see . The amendment deleted language stating that “[a]ny person who drives any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving,” and inserted language stating that “[a] person who drives a motor vehicle while aware of and consciously disregarding a substantial and unjustifiable risk that the driving may result in harm to another . . . is guilty of reckless driving.” 2015 Minn. Laws ch. 65, art. 6, § 3, at 523 (emphasis added).

We note that Coleman does not argue that any of his other convictions should be vacated because they arose from the same behavioral incident. We therefore do not address whether convictions were impermissibly entered for the other offenses of which Coleman was convicted. See (“[I]ssues not argued in briefs are deemed waived on appeal.“).