Jeffrey R. Edblad, Isanti County Attorney, G. Paul Beaumaster, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for appellant)

Marc S. Berris, David G. Roston, Commerce at the Crossings, 250 Second Avenue South, Suite 225, Minneapolis, MN 55401-2161 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Parker, Judge.[*]

Appellant State of Minnesota contends the trial court abused its discretion in granting the posttrial motion of respondents Rick Bruce Anderson and Thomas Harlan Gunnufson to dismiss with prejudice a felony charge of fleeing a peace officer in a motor vehicle. The state argues that the trial court erroneously determined that failure to yield to an emergency vehicle is a lesser-included offense of the felony charged. Anderson and Gunnufson move for attorney fees on appeal. We reverse and remand and grant Anderson and Gunnufson's motion.

A defendant may be convicted of either the crime charged or an included offense, but not both. Minn. Stat. § 609.04. A lesser-included offense is necessarily included in a greater offense if it is impossible to commit the greater offense without also committing the lesser. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). In determining whether an offense is a lesser-included offense, the court must look to the elements of the offense, not the facts of the particular case. Id. If the lesser offense requires an element not required by the greater offense, then the lesser offense is not a necessarily-included offense. State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985).

One commits the felony of fleeing a peace officer in a motor vehicle, if one

[1] by means of a motor vehicle flees or attempts to flee a peace officer [2] who is acting in the lawful discharge of an official duty, and [3] the perpetrator knows or should reasonably know the same to be a peace officer

the immediate approach of an authorized emergency vehicle equipped with at least one lighted lamp exhibiting red light visible under normal atmospheric conditions * * * and * * * when the driver is giving audible signal by siren, the driver of each other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in this position until the authorized emergency vehicle has passed * * *.

Minn. Stat. § 169.20, subd. 5(a).

A comparison of these provisions reveals that one could commit the felony offense of fleeing a peace officer in a motor vehicle without committing the misdemeanor of failing to yield to an emergency vehicle. While the failure-to-yield statute requires that an emergency vehicle operate a red light and siren, there is no such requirement to fleeing a peace officer in a motor vehicle. Indeed, one could commit the felony of fleeing a peace officer in a motor vehicle where the peace officer is on foot. Even where a peace officer is in an emergency vehicle, one could yield as required by Minn. Stat. § 169.20, subd. 5, and then subsequently flee in violation of Minn. Stat. § 609.487, subd. 3. Furthermore, unlike the felony of fleeing a peace officer in a motor vehicle, the misdemeanor of failing to yield to an emergency vehicle is limited to vehicles traveling on streets and highways. See Melby v. Commissioner of Public Safety, 367 N.W.2d 527, 529 (Minn. 1985) (holding Minn. Stat. ch. 169 is inapplicable to snowmobile operation not on street or highway).

Accordingly, we remand for retrial of the unresolved felony charge of fleeing a peace officer in a motor vehicle. See State v. Sater, 588 N.W.2d 512, 514 (Minn. App. 1998) (stating defendant may be retried for any charges on which jury did not reach verdict).

Anderson and Gunnufson moved for $2,010 in attorney fees and $48.15 in briefing and postage expenses. See Minn. R. Crim. P. 2804, subd. 2(6) (allowing reasonable costs and attorney fees to defendant for services made necessary when prosecution appeals). Based on our review of the supporting documents and awards in similar cases, we grant Anderson and Gunnufson $1,340 for attorney fees and $48.15 for briefing and postage expenses.

Reversed and remanded; motion granted.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.