STATE v. GEGENFURTNER, 312 Minn. 579 (1977)

251 N.W.2d 694

STATE v. JON MICHAEL GEGENFURTNER.

No. 46160.Supreme Court of Minnesota.
March 4, 1977.

Criminal law — trial — failure to request submission of lesser-included offense — effect.

Appeal by Jon Michael Gegenfurtner from a judgment of the St. Louis County District Court, Patrick D. O’Brien, Judge, whereby he was convicted of the unauthorized use of a motor vehicle. Affirmed.

C. Paul Jones, State Public Defender, and Gregory A. Gaut, Assistant State Public Defender, for appellant.

Warren Spannaus, Attorney General, Keith M. Brownell, County Attorney, and John E. DeSanto, Assistant County Attorney, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

Defendant was found guilty by a district court jury of unauthorized use of a motor vehicle, Minn. St. 609.55, subd. 2,[1] and was sentenced to a maximum term of 3 years in prison. Appealing from the judgment of conviction defendant contends that there was as a matter of law insufficient evidence of guilt and that the trial court erred

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in failing to submit the included offense of riding in a motor vehicle driven by another without the owner’s permission, Minn. St. 609.605-(10).[2] We affirm.

We have reviewed the evidence and find that it fully supports the verdict. We also find that under the facts of this case defendant would have been entitled to submission of the lesser included offense if he had requested it, State v. Gafner, 283 Minn. 466, 168 N.W.2d 680 (1969), and the trial court on its own could have submitted the offense even if defendant had not requested it, State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120 (1975). However, defendant did not request submission or object to the failure of the court to do so, and therefore he must be deemed to have waived the issue for appeal. State v. Jordan, 272 Minn. 84, 136 N.W.2d 601 (1965).

Affirmed.

[1] Minn. St. 609.55, subd. 2, provides: “Whoever intentionally takes or drives a motor vehicle without the consent of the owner or his authorized agent may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $3,000, or both.”

[2] Minn. St. 609.605 provides in part: “Whoever intentionally does any of the following is guilty of a misdemeanor:

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“(10) Without the permission of the owner, tampers with or gets into or upon a motor vehicle as defined in section 609.55, subd. 1, or rides in or upon such motor vehicle knowing it was taken and is being driven by another without the permission of the owner.”