The district court had jurisdiction under N.D. Const. The appeal from the district court was Filed in a timely manner under N.D.R.App. This Court has jurisdiction under N.D. Const. II McDonell contends the trial court erred in not instructing the jury on the lesser included offense of sexual assault. The defendant concedes he did not request the instruction.
Sexual assault is a lesser included offense to gross sexual imposition.
The fact that McDonell had sex with the victim is undisputed. At trial, McDonell contested the issue of consent. Since the only issue was the consent of the victim, an instruction on the lesser included offense of sexual assault would have been improper because the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater. The district court properly did not give an instruction on the lesser included offense of sexual assault. III McDonell contends the district court erred in allowing testimony concerning his prior conviction to be elicited, warranting reversal.