This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Corey Lee Claflin,



Filed August 5, 2003

Klaphake, Judge


Hennepin County District Court

File No. 01104051


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


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


Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)


            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Corey Lee Claflin challenges his conviction for first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1 (2000), arguing that the district court erred by failing to sua sponte instruct the jury on the lesser-included offense of second-degree criminal sexual conduct.  Because the evidence supports appellant’s conviction and because appellant failed to request an instruction on second-degree criminal sexual conduct or to otherwise object to the instructions that were given, we affirm.


            The district court has the discretion to determine whether and which lesser-included offenses should be submitted to the jury.  State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).  If the “evidence provides a rational basis for an acquittal on the offense charged and a conviction on the lesser offense,” an instruction on the lesser-included offense must be given.  Id.  Conversely, where the evidence supports the verdict, there is no error by not instructing on a lesser-included offense.  See State v. Pelawa, 590 N.W.2d 142, 147-48 (Minn. App. 1999), review denied (Minn. Apr. 28, 1999).

            A defendant’s failure to request or object to instructions can constitute a waiver of the defendant’s right to have a particular instruction read.  See State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (holding that defendant’s failure to request a self-defense instruction or to object to district court’s instruction constitutes a waiver); State v. Belssner, 463 N.W.2d 903, 911 (Minn. App. 1990) (holding that objections to instructions waived by failure to raise issue or request other instruction during trial), review denied (Minn. Feb. 20, 1991).  Where a defendant has not “raised, argued, or requested” an instruction on a lesser-included offense, the district court does not have a responsibility to independently give the instruction unless the record as a whole provides a rational basis for acquitting the defendant of the charged offense and convicting him of the lesser offense.  Gustafson, 610 N.W.2d at 320; State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994). 

            Second-degree criminal sexual conduct involves “sexual contact” between the defendant and victim, as opposed to first-degree criminal sexual conduct, which here involved “sexual penetration.”  Minn. Stat. §§ 609.342, subd. 1, .343, subd. 1 (2000). Appellant’s counsel discussed the different bases for first-degree criminal sexual conduct and the differences between “sexual contact” and “sexual penetration” at some length during his motion to dismiss at the close of the state’s case.  As he sought to draw a distinction between these two bases, it was evident that he knew and appreciated the difference between “sexual contact” and “sexual penetration,” which also essentially differentiate first- and second-degree criminal sexual conduct.  It is very possible that appellant’s attorney chose, as a deliberate tactic, this type of “all-or-nothing approach” of giving the jury only the more serious charge to consider, particularly when the victim’s testimony at trial was more equivocal than her videotaped statement.  See Bellcourt v. State, 390 N.W.2d 269, 274 (Minn. 1986) (opining that defendant waived submission of lesser-included offense to opt for “all-or-nothing” approach). 

            The victim’s testimony in its totality supports a verdict of first-degree criminal sexual conduct, particularly if her young age and the lapse of time between offense and trial date are taken into consideration.  With credible testimony supporting the charge and no request by appellant for an instruction on second-degree criminal sexual conduct or other objection to the instructions, the district court did not abuse its discretion by failing to sua sponte give such an instruction.