This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
K.J.B., Child.
Filed July 2, 2002
Benton and Stearns County District Courts
File Nos. J80150343 and J50150198
John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant K.J.B.)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; Michael S. Jesse, Benton County Attorney, Courthouse, 531 Dewey Street, Foley, MN 56329; and Roger S. Van Heel, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, 705 Courthouse Square, Administration Center, RM 448, St. Cloud, MN 56303-4701 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
WILLIS, Judge
Appellant challenges the district court order adjudicating him delinquent following an extended-juvenile-jurisdiction prosecution for second-degree assault, arguing that the district court abused its discretion by refusing to instruct the jury on fifth-degree assault because (1) a charge of second-degree assault includes the lesser offense of fifth-degree assault and (2) a rational basis existed for the jury to find that appellant did not commit second-degree assault and committed fifth-degree assault. He contends that the district court’s refusal to give the instruction entitles him to a new trial. Because the district court did not abuse its discretion, we affirm.
In January 2001, St. Cloud police officers responded to a call from dispatch regarding an assault. At the scene, the victim gave the officers the names of the two people who she said assaulted her. She told the officers that during the assault one of the alleged perpetrators, appellant K.J.B., held what she thought was a knife to her throat and threatened to kill her. The officers located K.J.B. and the other alleged perpetrator and arrested them. During a pat-down search, one of the officers found a folding knife in K.J.B.’s pants pocket.
The state filed a petition for delinquency against K.J.B., alleging second-degree assault. K.J.B. was tried in Stearns County. At trial, he requested a jury instruction on the lesser-included offense of fifth-degree assault; the district court denied that request. The jury found that K.J.B. committed second-degree assault. The district court transferred venue to Benton County, and appellant was adjudicated delinquent for that offense. This appeal follows.
Appellant argues that the district court’s failure to instruct the jury on the lesser-included offense of fifth-degree assault entitles him to a new trial. The refusal to give a requested jury instruction lies within the discretion of a district court, and this court will not reverse absent an abuse of that discretion. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). If the district court erred by refusing to give an instruction, this court will examine all relevant factors to determine, beyond a reasonable doubt, whether the error significantly affected the verdict. State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989). If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial. Id. at 481.
A defendant is entitled to an instruction on the elements of a lesser included offense if (1) the offense in question is an “included” offense, as set forth in Minn. Stat. § 609.04, subd. 1 * * * and (2) there is a rational basis for the jury to acquit a defendant of a charged offense and to convict him of the lesser offense.
State v. Pelawa, 590 N.W.2d 142, 147 (Minn. App. 1999) (citing State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994)), review denied (Minn. Apr. 28, 1999).
The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the [district] court, but where the evidence warrants an instruction, the [district] court must give it.
Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).
A defendant may be convicted of a crime charged or of a lesser-included offense, but not both. Minn. Stat. § 609.04, subd. 1 (2000). Lesser-included offenses include lesser degrees of the same crime. Id., subd. 1(1). The state does not dispute that fifth-degree assault is a lesser-included offense of second-degree assault. The issue, then, is whether the jury could have rationally found that K.J.B. committed fifth-degree assault and did not commit second-degree assault.
A defendant who “commits an act with intent to cause fear in another of immediate bodily harm or death” or who “intentionally inflicts or attempts to inflict bodily harm upon another” commits fifth-degree assault, a misdemeanor. Minn. Stat. § 609.224, subd. 1 (2000). The use of a dangerous weapon during an assault elevates the offense to second-degree assault, a felony. Minn. Stat. § 609.222, subd. 1 (2000); see Minn. Stat. § 609.02, subd. 2 (2000) (defining “felony”).
K.J.B. argues that although at trial he offered an alibi defense, he also challenged the victim’s testimony that he used a knife to assault her. He contends that the jury could have rationally found that he assaulted the victim but that he did not use a knife during the assault or that he assaulted the victim with a knife but that the knife that he used was not a dangerous weapon. See Minn. Stat. § 609.02, subd. 6 (2000) (defining “dangerous weapon”).
For a jury to rationally conclude that a defendant committed a lesser-included offense but did not commit the charged offense,
proof of the elements which differentiate the two crimes must be sufficiently in dispute so that [the] jury may make th[e] distinction.
State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986) (citation omitted). A district court does not err by refusing to instruct the jury on a lesser-included offense
if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi, or the only issue is identity, unless the defendant argues [that] the evidence at most shows guilt only of the [lesser-included] offense.
Loftus v. State, 357 N.W.2d 419, 423 (Minn. App. 1984) (quotation omitted), review denied (Minn. Mar. 6, 1985).
In State v. Tuomi, this court upheld a district court’s decision not to instruct the jury on a lesser charge of criminal sexual conduct because the defendant “denied committing or attempting to commit any crime, including sexual contact.” 396 N.W.2d 847, 852 (Minn. App. 1986), review denied (Minn. Jan. 21, 1987). Similarly, in Loftus, this court affirmed a district court’s refusal to instruct the jury on a lesser-included offense on the ground that the defendant completely denied the charged offense; there was, therefore, no dispute over the elements differentiating the two offenses. 357 N.W.2d at 422-23.
Here, the victim testified at trial that she felt a knife held against her throat during the assault but that she did not see the knife. On cross-examination, defense counsel questioned the victim regarding the knife and regarding other details of the assault, apparently to discredit her testimony and to bolster its theory that the assault never happened. K.J.B. offered an alibi defense; he did not argue that the evidence at most showed that he committed fifth-degree assault. See id. at 423. The evidence did not, therefore, place the elements of second- and fifth-degree assault sufficiently in dispute to allow the jury to distinguish between them. See Murphy, 380 N.W.2d at 772. Because K.J.B. denied altogether that he assaulted the victim, the jury could not have found that he committed fifth-degree assault and did not commit second-degree assault.
Affirmed.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.