State v. Ostlund, 416 N.W.2d 755 (Minn. App., 1987)

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Page 755

416 N.W.2d 755

STATE of Minnesota, Respondent,

v.

Janet Marie OSTLUND, Appellant.

No. C5-87-390.

Court of Appeals of Minnesota.

Dec. 15, 1987.

Review Denied Feb. 24, 1988.

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Syllabus by the Court

1. A conviction may be based on circumstantial evidence and will be upheld if the reasonable inferences from such evidence are consistent only with guilt and inconsistent with any rational hypothesis except that of guilt.

2. Where reputable doctors present conflicting expert opinions on the cause of death, the trier of fact must determine the credibility of the witnesses and the weight to be given their testimony.

3. Prosecutor's cross-examination did not amount to prejudicial misconduct.

4. Cross-examination of defendant concerning a prior inconsistent statement made to detective and contained in the

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sworn complaint is proper, and not inadmissible hearsay, even though the detective was not called as a witness at trial.

5. Trial court properly limited defense closing argument by not allowing comment on the state's failure to call a particular witness where witness's name had been disclosed before trial and both parties knew the nature of his testimony.

6. Trial court did not err in admitting Spreigl evidence.

7. Trial did not err in failing to give a jury instruction on the lesser included offense of first degree manslaughter.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, J. Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.

Ronald I. Meshbesher, Steven J. Meshbesher, John P. Sheehy, Meshbesher, Singer & Spence Ltd., Minneapolis, for appellant.

Heard, considered and decided by WOZNIAK, P.J., and FOLEY and CRIPPEN, JJ.

OPINION

FOLEY, Judge.

Appellant Janet Marie Ostlund was charged by complaint 1 with second degree murder in the unintentional killing of her infant daughter Maria by shaking her and causing massive injury to her brain. After a jury trial, appellant was convicted. The trial court denied defense motions for a judgment of acquittal at the close of the state's case and after the verdict. The trial court also denied appellant's motion for a new trial. We affirm.

FACTS

Appellant married David Ostlund in January 1983. The couple wanted to have children but experienced problems of infertility. They decided to adopt a child in the fall of 1983.

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