This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





James H. Merchant,



Filed February 13, 2001


Willis, Judge


Hennepin County District Court

File No. 99036235


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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of fourth-degree criminal sexual conduct, claiming the district court erred in denying a jury instruction on a lesser-included offense.  Because the evidence did not provide a rational basis for the jury to convict appellant of the lesser offense and acquit him of the greater offense, we affirm.


In the early morning of March 27, 1999, C.J. and her friend, A.S., returned to C.J.’s apartment after drinking at several Minneapolis bars.  They were accompanied by appellant James Merchant, whom A.S. had dated nearly four years earlier.  Shortly after their arrival, C.J. told A.S. and Merchant that she was tired and went into her bedroom, where she fell asleep.  Merchant and A.S. subsequently had consensual sex in the living room.

            At about 6:00 a.m., A.S. woke to the sound of C.J. screaming.  A.S. went into the bedroom, where C.J. was yelling at Merchant, telling him to leave.  When he refused to leave, C.J. called 911 and reported that she had been raped.  Merchant, who was naked, began dressing and attempted to leave.  The two women tried to prevent him from leaving before the police arrived.  After a brief scuffle, he fled.  While they waited for the police, C.J. told A.S. that when she woke up, Merchant was lying next to her in bed, naked, with his fingers “in her.”  After the police arrived, they took C.J. to the hospital for a sexual-assault examination; no physical evidence of sexual penetration was found.

Merchant was arrested several weeks later.  In his statement to the police he claimed that he did not know A.S. or C.J. and that he did not remember going to C.J.’s apartment.  He was charged with third-degree criminal sexual conduct, under Minn. Stat. § 609.344, subds. 1(d) and 2 (2000).  At trial, Merchant admitted that he had at one time dated A.S. and that he and A.S. had consensual sex at C.J.’s apartment.  He denied having any sexual contact with C.J. and testified that he was awakened by her yelling at him, telling him to leave, and threatening to accuse him of rape if he did not.  At the close of evidence, Merchant moved the district court to instruct the jury on the lesser-included offenses of fourth- and fifth-degree criminal sexual conduct.  The court denied his motion for a fifth-degree instruction but did instruct the jury on both third- and fourth-degree criminal sexual conduct. 

The jury convicted Merchant on the fourth-degree charge.  The district court stayed imposition of the sentence for five years and placed Merchant on probation.  Merchant appealed.


Merchant asserts that the district court abused its discretion in denying the jury instruction on fifth-degree criminal sexual conduct.  A defendant may be convicted either of the crime charged or of a lesser-included offense, but not both.  Minn. Stat. § 609.04, subd. 1 (2000).  The decision whether to submit a lesser-included offense to the jury “lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.”  State v. Brocks, 587 N.W.2d 37, 40 (Minn. 1998) (quotation omitted).

An instruction on a lesser-included offense is warranted where (1) the offense for which the instruction is requested “is an ‘included’ offense and (2) a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime.”  Id. (citation omitted).  The parties do not dispute that fifth-degree criminal sexual conduct is a lesser-included offense of fourth-degree criminal sexual conduct.  Therefore, the only issue before the district court was whether the evidence provided a rational basis for the jury to convict Merchant of fifth-degree criminal sexual conduct and acquit him of the greater crime.  A jury has a rational basis to convict a defendant of a lesser crime and acquit him of the greater crime when “proof of the elements which differentiate the two crimes [is] sufficiently in dispute so that a jury may make this distinction.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (quotation omitted).  Here, the only element distinguishing the two offenses is that fourth-degree criminal sexual conduct requires that the victim be “physically helpless,” while fifth-degree criminal sexual conduct does not.  Compare Minn. Stat. § 609.345, subd. 1(d) (2000), with Minn. Stat. § 609.3451 (2000).  One of the statutory definitions of “physically helpless” is “asleep or not conscious.”  Minn. Stat. § 609.341, subd. 9 (2000).

Merchant’s testimony did not support the theory that he was guilty of fifth-degree criminal sexual conduct.  At no point did he present any evidence suggesting that he had sexual contact with C.J. but that she was awake at the time.  Rather, he testified that he did not have any sexual contact with her.

The fact that the defendant’s own testimony does not support the theory that he is guilty only of a lesser offense does not preclude submission if the record on the whole


 provides a rational basis for acquittal on the charged offense and conviction on the lesser offense.  Brocks, 587 N.W.2d at 40-41 (quotation omitted).  But here, given C.J.’s testimony that when she woke up Merchant was lying next to her in bed fondling her and A.S.’s testimony as to C.J.’s alarmed reaction when she woke, there was no rational basis for the jury to find that Merchant had sexual contact with C.J. but that she was not asleep at the time.  The district court, therefore, did not abuse its discretion in denying a jury instruction on fifth-degree criminal sexual conduct.



                * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.