This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Sheldon Raymond King,


Filed December 15, 1998


Harten, Judge

Ramsey County District Court

File No. K8-97-1109

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

Hubert H. Humphrey, III Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.



Appellant challenges his jury conviction of second-degree possession of methamphetamine with intent to sell, arguing that the district court erred by refusing to instruct the jury on the lesser included offense of fifth-degree possession of a controlled substance. Because the district court had a rational basis for its refusal and did not abuse its discretion, we affirm.


Police executed a search warrant at appellant's house and found 36 grams of methamphetamine. Eighteen grams were in the walk-in closet of appellant's and his girlfriend's bedroom and 18 grams were in a structure attached to the house.

The state charged appellant with possession with intent to sell methamphetamine under Minn. Stat. § 152.022, subd. 1(3) (1996). At trial the state presented evidence supporting the charge, including an electronic scale, sandwich bags, and a razor blade that were found in appellant's house. A police officer testified that these items and the amount of methamphetamine found were typically possessed by a drug seller. The state also called appellant's girlfriend, brother, and friend as witnesses; on cross-examination by appellant's attorney, all three testified that appellant did not use drugs.

After hearing most of the evidence, the district court ruled that appellant was entitled to a jury instruction on the lesser included offense of fifth-degree possession of drugs. When the court actually instructed the jury, however, it did not give this instruction. Appellant moved for a new trial; the court denied appellant's motion at the sentencing hearing, explaining that appellant could not have possessed the drugs for anything but sale because all the evidence showed that he personally did not use drugs. This appeal followed. Appellant argues that the district court should have instructed the jury on the lesser included offense of fifth-degree possession of drugs.


The determination of what, if any, lesser offense to submit 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.

Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted). The instruction is warranted if

the evidence 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.

State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). "[P]roof of the elements which differentiate the two crimes must be sufficiently in dispute" so the jurors can make a distinction. State v. Adams, 295 N.W.2d 527, 532 (Minn. 1980).

Appellant argues that the district court abused its discretion by refusing to give an instruction on the lesser-included offense of simple possession under Minn. Stat. § 152.025, subd. 2(1) (1996). He argues that there was a rational basis for acquitting on the greater charge of possession with intent to sell under section 152.022, subd. 1(3) (1996), and convicting on the lesser charge of simple possession. Appellant therefore contends that under United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310 (1995), his right to a jury trial was violated because the court took away the factfinding role of the jury. Appellant claims that under Dale v. State, 535 N.W.2d 619, 624 (Minn. 1995), and State v. McKenzie, 532 N.W.2d 210, 223 (Minn. 1995), jurors are free to accept or disbelieve any testimony and should have been free to decide whether appellant possessed the methamphetamine with intent to sell.

Appellant's argument is misplaced. First, Gaudin, Dale, and McKenzie are distinguishable because they do not concern lesser included offenses. See Gaudin, 515 U.S. at 506, 115 S. Ct. at 2311-12 (whether refusal to submit the issue of the essential element of materiality to the jury was unconstitutional); Dale, 535 N.W.2d at 624 (sufficiency of evidence to sustain first degree criminal sexual conduct conviction); McKenzie, 532 N.W.2d at 223 (sufficiency of the evidence to support a first-degree murder conviction).

Second, appellant's argument is unsound because the district court did not make a factual finding that appellant possessed methamphetamine with intent to sell. The court only instructed the jury on possession with intent to sell; the jury was free to find that there was no intent to sell, regardless of the absence of an instruction on the lesser included offense of fifth-degree possession.[1]

Finally, we review a district court's decision to grant or deny a lesser included offense under an abuse of discretion standard. Bellcourt, 390 N.W.2d at 273. Appellant argues in his pro se supplemental brief that the district court abused its discretion and denied him a fair trial by not including an instruction on mere possession. The district court, however, reasoned that if appellant did not possess the drugs for personal use, he must have possessed them to sell. This was based on police testimony that the amounts of the drugs and evidence found at appellant's home were consistent with an individual who sold drugs and testimony from appellant's witnesses--a friend, girlfriend, and brother--that appellant did not use drugs.

Although we may have handled the matter differently, because there was a rational basis for the district court to find that it was unreasonable to give a jury instruction on the lesser included offense of possession, we conclude that the district court did not abuse its discretion. See State v. Gerring, 378 N.W.2d 94, 97 (Minn. App. 1985) (affirming district court where it refused to give an instruction on a lesser included offense because it found no probative evidence to show any offense other than criminal sexual conduct in the first degree).


[1] Appellant argues that the jury's written question of whether the appellant was considered by law to be in possession with intent to sell conclusively shows the court's usurpation of the jury's factfinding role. Appellant further argues in his pro se supplemental brief that the court abused its discretion because it determined intent. We disagree. The jury was free to find that appellant did or did not possess with intent to sell.