State v. McDonald, 46069

• Decision Date: 11 March 1977
• Docket Number: No. 46069,46069
• Citation: 251 N.W.2d 705,312 Minn. 320
• Parties: STATE of Minnesota, Respondent, v. Timothy Michael McDONALD, Appellant.
• Court: Minnesota Supreme Court

Page 705

251 N.W.2d 705

312 Minn. 320

STATE of Minnesota, Respondent, v. Timothy Michael McDONALD, Appellant.

No. 46069.

Supreme Court of Minnesota.

March 11, 1977.

C. Paul Jones, Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, William B. Randall, County Atty., Darrell C. Hill, Asst. County Atty., St. Paul, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

Defendant was found guilty by a district court jury of a charge of felonious theft (theft of property over $100 in retail market value), Minn.St. 609.52, subd. 2(1) and subd. 3(2), and was sentenced by the trial court to a maximum term of 5 years in prison with the sentence stayed on condition that defendant serve a term of 1 year in the workhouse (which term expired in June 1976). On this appeal from judgment of conviction, defendant does not challenge the sufficiency of the evidence that he committed a theft, but contends that the trial court prejudicially erred in ruling that the evidence did not warrant submission of the included offense of misdemeanor theft (theft of property having a retail market value of $100 or less), Minn.St. 609.52, subd. 3(5). We reverse and grant defendant a new trial.

The test which must be applied in determining whether or not to submit a lesser-included offense is whether there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense. ¹ See, State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125 (1975). One commentator explains the applicability of this test as follows:

" * * * Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser offense instruction. While a jury could acquit him of the crime charged, despite all the evidence, this does not mean that he has the right to have a jury choose to find him guilty of a lesser crime without some basis in the evidence for such a choice.

"The controverted evidence to dispute the proof of the element separating the crime charged from the lesser offense can be supplied by inference as well as by direct testimony. A court must appraise all of the testimony and evidence to determine whether it is capable of more than one reasonable inference. These different inferences can arise solely from the testimony of the prosecution's witnesses such as instances where different versions of an incident are recited. Where controverting evidence is present, even conflicting testimony or inconsistent statements by a defendant will not affect his right to have his version of an occurrence presented for a jury's determination although such inconsistencies might damage his credibility." Barnett, The Lesser-Included Offense Doctrine, 5 Conn.L.Rev. 255, 273.

The issue in this case is whether or not a jury could rationally have found that the value of the stolen property an electric power saw and a cordless electric screwdriver was less than $100, the statutory demarcation between felonious theft and misdemeanor theft. The owner of the store from which the goods...