This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-290

State of Minnesota,

Respondent,

vs.

Richard A. McLemore,

Appellant.

Filed December 31, 1996

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K9951308

Hubert H. Humphrey III, Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center-West, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Lansing, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

On appeal from conviction for second degree intentional murder, Richard McLemore challenges the district court's refusal to instruct on the lesser-included offense of second degree manslaughter and the court's general instruction on witness credibility. The district court acted well within its discretion in withholding the first instruction and in giving the second. We affirm.

FACTS

A grand jury indicted Richard McLemore for premeditated murder in the first degree in violation of Minn. Stat. § 609.185, cl. 1 (1994); murder in the first degree during felony sale of cocaine in violation of Minn. Stat. § 609.185, cl. 3; and second degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1).

At trial it was undisputed that Richard McLemore shot and killed Boney Green. McLemore presented evidence, including his own testimony, that the shooting was in self-defense. McLemore, then a seventeen-year-old high school senior, had responded to a page requesting drugs. Armed with a loaded .45 caliber handgun, McLemore went to a second-floor apartment where he sold an acquaintance four rocks of crack cocaine. After he completed the sale, but before he left the building, he decided to return to the apartment to speak to Green who was in the apartment during the transaction. According to McLemore, Green had sold him an electronic benefits card which Green said had a $100 balance but turned out to be worthless.

McLemore testified that when he and Green went into the hallway to discuss the electronic card, Green became angry and advanced toward him, saying he was going to kill him. Green was not armed. McLemore testified that he fired at Green once, paused, closed his eyes, and began firing again when Green "charged" him. McLemore testified that he shot quickly and that the entire episode was over in seconds, but he admitted that his gun required a separate trigger pull each time it was fired. McLemore said that when he opened his eyes Green was gone, and McLemore fled.

Police officers responding to a call from the apartment found Green's body at the bottom of the stairway between the building's first and second floors. Green had been shot three times, once fatally in the head.

The jury acquitted McLemore of first degree intentional murder and first degree murder during the felony sale of cocaine. McLemore was convicted of second degree intentional murder and appeals.

D E C I S I O N

Generally, the refusal to give a requested jury instruction lies within the discretion of the district court and no error results if no abuse of discretion is shown. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989). In instructing the jury in a homicide case, the supreme court has emphasized that it is "preeminently the district court's duty in the exercise of its discretion to determine what lesser degrees of homicide to submit to the jury." State v. Cole, 542 N.W. 2d 43, 50 (Minn. 1996) (citing State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975)).

In deciding whether to instruct on a lesser-included offense, the district court applies a two-part test: (1) whether the lesser offense is necessarily included under Minn. Stat. § 609.04 (1994); and (2) whether the evidence adduced at trial would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified. Cole, 542 N.W.2d at 50. The second part of this test is called the "rational basis" test. Id. (citing State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994)).

The first part of the two-part test is not at issue in this case. Second degree manslaughter is a lesser-included offense of second degree intentional murder. See Minn. Stat. § 609.04 (1994) (every lesser degree of homicide is intended to be characterized as an included offense); Leinweber, 303 Minn. at 421, 228 N.W.2d at 125. With respect to the second prong, McLemore asserts that the evidence would reasonably support a conviction for second degree manslaughter, and a finding of guilty on the second degree intentional murder is unjustified.

Second degree manslaughter is defined as causing the death of another by "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, cl. 1 (1994). This negligence consists of intentional conduct which a reasonable person would realize as involving a strong probability of harm to others, even though there is no intent to be harmful. State v. Zupetz, 322 N.W.2d 730, 734 (Minn. 1982).

McLemore argues that the jury could have found him negligent in firing "blindly-recklessly" at Green, but could also have concluded that he did not intend to kill Green. But both medical examiners and McLemore's gun and ammunition expert testified that the physical evidence was inconsistent with McLemore's version of the facts. Both medical examiners testified that Green was wounded first in the hand, moved away from the site of the first shot and was mortally wounded while near or on the apartment stairway. Even under McLemore's version of the facts, after firing at Green, McLemore paused before again firing a gun that required a separate trigger pull for each shot. See State v. Jackman, 396 N.W.2d 24, 30 (Minn. 1986) (finding of intent and premeditation supported by testimony that appellant moved toward murder victim during successive shots and that there was a pause between shots). It was not reversible error for the trial court to refuse to instruct the jury on second degree manslaughter.

McLemore presents a second issue, pro se, that the district court erred in reading the standard witness credibility portion of CRIMJIG 3.12. 10 Minnesota Practice, CRIMJIG 3.12 (1990). Because McLemore failed to object to the jury instruction as given, he is precluded from obtaining appellate review on the instructions unless they may be considered "plain error." State v. Witucki, 420 N.W.2d 217, 220 (Minn. App. 1988), review denied, (Minn. Apr. 15, 1988). The district court's jury instructions on witness credibility were those set forth in the Minnesota Jury Instructions Guide, CRIMJIG 3.12. These instructions did not constitute "plain error" by the district court.

McLemore has also moved to strike a sentence from the state's brief. Although the sentence was not a factor in our decision, we deny the motion because the disputed sentence is supported by the evidence.

Affirmed.