This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Clinton Trass III,
Filed December 26, 2006
Hennepin County District Court
File No. 04042399
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart,
State Public Defender, Davi E. F. Axelson, Assistant State Public Defender,
Considered and decided by Klaphake, Presiding Judge, Worke, Judge, and Ross, Judge.
Appellant Clinton Trass III was convicted of second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2(1)(2002), for his role in the shooting death of Ronzell Jones at a crowded after-hours hangout. On appeal, he claims that the district court abused its discretion by refusing to instruct the jury on the lesser-included offense of second-degree manslaughter. Because there was evidence to acquit on the second-degree felony murder charge and convict on the lesser-included charge of second-degree manslaughter, we conclude that the district court abused its discretion and reverse.
D E C I S I O N
In Minnesota, a defendant “may be convicted of either the crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2004). Every lesser degree of the charge of murder constitutes a lesser-included offense. State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975).
“In determining whether a lesser-included offense instruction should be given, trial courts must consider only whether a rational basis exists in the evidence to acquit of the greater charge and convict of the lesser—without considering either the strength of the evidence or the credibility of the witnesses.” State v. Dahlin, 695 N.W.2d 588, 596 (Minn. 2005). In making this determination, district courts must “view the evidence in the light most favorable to the party requesting the instruction.” Id. at 597. Even where the defendant’s testimony does not support a finding of guilt only on a lesser-included offense, if the record as a whole “provides a rational basis” for submitting the lesser included-offense to the jury, the district court must instruct the jury on the lesser-included offense. State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994). On a challenge to a district court’s decision not to give a lesser-included offense instruction, appellate courts “review the record in the light most favorable to the party requesting the instruction to determine whether the trial court abused its discretion in deciding the instruction was not warranted by the evidence.” Dahlin, 695 N.W.2d at 598.
Appellant claims that the district court abused its discretion by failing to instruct the jury on second-degree manslaughter in addition to the second-degree murder instruction that it did provide. A person commits second-degree manslaughter if “by the person’s culpable negligence . . . the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Minn. Stat. § 609.205(1) (2002). “Culpable negligence” is 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. Chambers, 589 N.W.2d 466, 478 (Minn. 1999).
Viewing the evidence in the light most favorable to appellant, we find that the jury could have disbelieved appellant’s trial testimony that he did not shoot the gun but believed the testimony of two other witnesses whose testimony could support a finding that appellant did not intend to hit anyone and negligently shot the gun with the intent only to disperse a crowd. A witness who was present at the time of the shooting told police just after the shooting that appellant had admitted to him that he had shot the gun but “didn’t think [he] hit anybody.” An acquaintance of appellant’s who was also a witness to the crime was housed with appellant in jail and received a reduced sentence on a separate charge for his testimony. This witness testified that appellant told him that “he wasn’t really trying to hit nobody, he was trying to get people off of them.” This testimony is also supported by the fact that the victim was shot as he stood out in the street, apparently separate from the crowd. Without considering either the credibility of these witnesses or the strength of their testimony, we find that this evidence provided a rational basis for submitting the second-degree manslaughter instruction to the jury.
Respondent cites two cases for the proposition that the district court is under no duty to give a lesser-included second-degree manslaughter instruction when there is no evidence that reasonably supports giving the instruction. See Chambers, 589 N.W.2d at 478-79 (holding lesser-included offense instruction of second-degree manslaughter unwarranted when defendant’s conduct in aiming his car at and accelerating toward a deputy’s squad car at 93 to 98 miles per hour would not support finding of negligence in regard to deputy’s death from collision); State v. Werman, 388 N.W.2d 748, 750-51 (Minn. App. 1986) (holding lesser-included offense instruction of second-degree manslaughter unwarranted when husband took nine separate steps to retrieve and set up rifle before shooting wife, and wife’s wounds indicated defensive posture inconsistent with negligent firing of rifle), review denied (Minn. Aug. 13, 1986).
These cases are distinguishable: neither case provides a rational basis for a lesser-included offense instruction. The facts of this case include evidence that reasonably supports giving a lesser-included instruction. For this reason and following the reasoning of Dahlin, we conclude that the district court abused its discretion by refusing to instruct the jury on the lesser-included offense of second-degree manslaughter. The jury here found appellant guilty of the least serious charged offense, so respondent may not argue that the jury implicitly rejected a lesser-included offense by finding appellant guilty of a more serious offense. “When an appellate court determines that a requested lesser-included offense instruction was warranted by the evidence, and the denial of that instruction prejudiced the defendant, reversal is required.” Id. at 599.
Reversed and remanded.
 Because of our decision to reverse appellant’s conviction, we decline to address appellant’s claim of prosecutorial misconduct.