This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Frank Gregory Jennings,



Filed April 11, 2000


Willis, Judge


Ramsey County District Court

File No. K6974171


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN  55102 (for respondent)


John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of second-degree felony murder, arguing that the district court erred by refusing to instruct the jury on the lesser-included offense of second-degree manslaughter.  We affirm.


            Appellant Frank Gregory Jennings was charged with one count of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1996), and one count of second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1996), following an altercation with Bret Olson, who had stolen a car belonging to a friend of Jennings’s.  After chasing Olson by car and on foot, Jennings claims that he pulled out a knife in an attempt to convince Olson to wait for the police to arrive.  Olson received two stab wounds, one of which entered his heart, killing him.  At trial, the district court denied Jennings’s request that the jury be given an instruction on the lesser-included offense of second-degree manslaughter.  The jury acquitted Jennings of second-degree intentional murder and found him guilty of second-degree felony murder. 


Jennings contends on appeal that, although he behaved in a culpably negligent manner in his zeal to apprehend Olson, he did not intend to harm or to kill Olson when he displayed the knife; rather, he only intended to frighten Olson into waiting until the police arrived.  On this basis, Jennings argues, the jury could have rationally convicted him of second-degree manslaughter under Minn. Stat. § 609.205 (1) (1996), and the district court therefore abused its discretion in refusing to give the jury an instruction on that offense.

            The decision to instruct the jury on lesser-included offenses is within the district court’s discretion, “but where the evidence warrants an instruction, the [district] court must give it.”  State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999) (quoting Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986)).  We use a two-part test to determine whether the district court should have instructed the jury on a lesser-included offense: 

(1) whether the offense in question is an included offense; and (2) whether “a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime.” 


Chambers, 589 N.W.2d at 478 (quoting State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997)). 

The parties do not dispute that second-degree manslaughter is a lesser-included offense of both second-degree intentional murder and second-degree felony murder.  Because the first part of the test is satisfied, we must determine whether the record evidence would reasonably support a conviction of second-degree manslaughter and acquittal on the greater offense, second-degree felony murder.  We first consider whether the jury rationally could have convicted Jennings of second-degree manslaughter. 

A person commits second-degree manslaughter when the person causes the death of another “by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”  Minn. Stat. § 609.205 (1).  “Culpable negligence” has been defined as “intentional conduct which the actor may not intend to be harmful but which an ordinary and reasonably prudent man would recognize as involving a strong probability of injury to others.”  State v. Beilke, 267 Minn. 526, 534, 127 N.W.2d 516, 521 (1964).

The district court determined that, on the basis of the evidence presented, the jury could not rationally acquit Jennings of second-degree felony murder and convict him of second-degree manslaughter.  Jennings testified that when he pulled out his knife to convince Olson to wait until the police arrived, Olson kicked at the knife and missed.  Jennings further testified that Olson was moving toward him when he “lunged out with the knife,” striking Olson.  The county medical examiner, who performed the autopsy on Olson, testified that the fatal wound was 10 cm. deep, 1 cm. deeper than the length of the blade of Jennings’s knife, and parallel to the ground.  He further explained that the angle and depth of the wound were inconsistent with Jennings’s testimony.  See generally State v. Mitjans, 408 N.W.2d 824, 833 (Minn. 1987) (upholding refusal to submit lesser offense to jury where unimpeached expert medical testimony inconsistent with defendant’s version of events precluded jury from rationally acquitting defendant of felony murder and convicting him of culpably negligent manslaughter); State v. Werman, 388 N.W.2d 748, 750-51 (Minn. App. 1986) (finding that facts precluded conviction for lesser offense requiring culpable negligence where defendant did not claim at trial that actions were reckless or culpably negligent and where defendant testified that he had intended to scare his wife, but instead shot her with rifle), review denied (Minn. Aug. 13, 1986).  Accordingly, the district court did not abuse its discretion in determining that the jury could not rationally have convicted Jennings of second-degree manslaughter.

Furthermore, there was no rational basis for the jury to acquit Jennings of second-degree felony murder.  Second-degree felony murder is committed when one

causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense * * * with force or violence * * * . 


Minn. Stat. § 609.19, subd. 2(1) (1996).  Here, the predicate felony was second-degree assault (assault with a dangerous weapon) in violation of Minn. Stat. § 609.222 (1996).  Assault is defined as:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or

(2) The intentional infliction of or attempt to inflict bodily harm upon another.


Minn. Stat. § 609.02, subd. 10 (1996).  The record includes Jennings’s testimony that he took out the knife with the intent to scare Olson into waiting until the police arrived and that he “poked” Olson with the knife later while holding him on the ground, thus providing sufficient evidence for the jury to conclude that the state had proved the statutory elements of second-degree assault[1] and, ultimately, second-degree felony murder.  The supreme court has recently held that where “[e]ach of the elements of second-degree felony murder was satisfied and undisputed,” the jury could not rationally have acquitted the defendant of the offense, and “the [district] court did not abuse its discretion in refusing to instruct the jury on the lesser-included offenses.”  Chambers, 589 N.W.2d at 479.

            Accordingly, we conclude that because no evidence was introduced that could reasonably have supported both a conviction of second-degree manslaughter and an acquittal on the charge of second-degree felony murder, the district court here did not abuse its discretion in refusing to instruct the jury on the lesser-included offense of second-degree manslaughter.




[1] Citing United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), Jennings argues that by refusing to instruct the jury on the lesser-included offense of second-degree manslaughter, the district court determined sua sponte that Jennings was engaged in felonious activity when the stabbing occurred and thus removed this element of the charged offense from the jury’s consideration.  But this argument fails because the district court did not decide an essential element of the offense as a matter of law, but rather instructed the jury on the elements of both second-degree assault and second-degree felony murder.