This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Albert Jones,

Filed November 2, 1999
Kalitowski, Judge

Hennepin County District Court
File No. 93090281

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

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Albert Jones contends he is entitled to a new trial on the charge of second-degree assault because the district court erred in failing to instruct the jury on the lesser-included offense of fifth-degree assault. We affirm.


"The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court." Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted). Generally,

a defendant who does not request submission or object to the lack of submission of a lesser offense forfeits his right to raise on appeal a claim that the lesser offense should have been submitted.

State v. Morales, 324 N.W.2d 374, 376 (Minn. 1982). See also Minn. R. Crim. P. 26.03, subd. 18(3). An exception to this rule exists where the failure to instruct on the lesser offense constitutes "plain error of a prejudicial nature." State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995) (citations omitted).

Jones was convicted of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1992), as a result of an incident in a gas station in which he brandished a handgun at a store clerk during an argument and verbally threatened to shoot the clerk through a tray in the bulletproof glass. At trial, Jones denied that he brandished a handgun, and instead testified that the alleged handgun was actually a pair of pliers.

Jones contends that he is entitled to a new trial because the district court did not instruct the jury on the lesser offense of fifth-degree assault. He concedes that he never requested a fifth-degree assault instruction at trial. Jones did request a disorderly conduct instruction, which the district court refused. Jones acknowledges that disorderly conduct is not a lesser-included offense of second-degree assault, but argues that he "should not be penalized because his counsel requested the wrong lesser offense verdict option."

A defendant's waiver of lesser-included offenses can occur either expressly or implicitly by failure to make a proper request. State v. Keenan, 289 Minn. 313, 318, 184 N.W.2d 410, 413 (1971) (citing State v. Jordan, 272 Minn. 84, 86, 136 N.W.2d 601, 604 (1965)). When such a waiver occurs, it is not the function of the appellate court "to second-guess defense counsel's choice of trial strategy, even where, with the benefit of hindsight, that choice seems erroneous." Keenan, 289 Minn. at 319, 184 N.W.2d at 414 (citation omitted).

Jones's request for a misdemeanor disorderly conduct instruction does not suffice to preserve his appeal of the district court's failure to give, sua sponte, a fifth-degree assault instruction. Jones offers no factual support for his assertion that his failure to request a fifth-degree assault instruction was due to a mistake rather than trial strategy. To the contrary, after conferring with his attorney during the conference on jury instructions, Jones expressly rejected the district court's proposed submission of an instruction on the lesser offense of terroristic threats. He therefore rejected a lesser verdict option that would have allowed the jury to find that he did not have a gun, but still committed unlawfully threatening behavior.

Because Jones did not request a fifth-degree assault instruction, the district court's failure to submit it sua sponte is reversible error only if it constituted plain error of a prejudicial nature, such that there was a reasonable likelihood that it substantially affected the verdict. See State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990) (citing State v. Shamp, 427 N.W.2d 228, 231 (Minn. 1988)). Jones speculates that the jury could have convicted him of fifth-degree assault if they had come to a different determination about whether he wielded a pair of pliers rather than a handgun. But if the jury accepted his version of the facts it could have acquitted him of second-degree assault pursuant to the instructions it was given. Because Jones provides no evidence indicating the jury was improperly affected by the absence of a fifth-degree assault instruction, or that any prejudice resulted from the district court's instructions as given, we conclude the district court did not commit plain error of a prejudicial nature.

Finally, Jones requests that we remand this case to the district court for consideration of his claim of ineffective assistance of trial counsel. Jones has not otherwise raised or argued the issue in this direct appeal. Without reaching the merits of his claim, we deny his request for remand of the issue as part of this proceeding.