State v. Myers

PER CURIAM.

Defendant, indicted for first-degree premeditated murder, was found guilty by a district court jury of the lesser-included offense of third-degree felony murder, Minn.St. 609.195, the jury determining that the killing occurred in the course of an aggravated assault by defendant upon the victim. Defendant, who is now serving a 3-to 15-year term in prison, appeals from judgment of conviction. He contends first that his conviction should be reversed outright because the evidence was such as to mandate a finding that the killing was in self defense or that he should be granted a new trial in the interests of justice because of the closeness of the evidence. Secondly, although defense counsel at trial requested submission of third-degree felony murder, defendant now argues that his conviction should be reversed and a new trial granted on lesser charges because it is improper to convict a defendant of third-degree murder under the felony-murder doctrine when the collateral felony is aggravated assault. We affirm.

After a careful review of the record, we conclude that the evidence, viewed most favorably to support a finding of guilty, was sufficient to permit the jury to convict defendant of third-degree felony murder. The jury was properly instructed on the elements of self defense and reasonably concluded on the basis of the evidence that the prosecution had met its burden of proving that defendant did not act in self defense. See, State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969), and State v. Johnson, 277 Minn. 368, 152 N.W.2d 529 (1967).

The determination of whether or not to submit third-degree felony murder is a matter for decision by the trial court based upon the facts of the particular case. In this case, we will not review the submission of third-degree felony murder as raised on appeal by the defendant, since the submission by the trial court was at the request of the defendant.

Affirmed.