Anderson and Gunnufson move for attorney fees on appeal. We reverse and remand and grant Anderson and Gunnufson's motion. During trial, the court granted their motion to submit to the jury as a lesser-included offense, the misdemeanor charge of failure to yield to an emergency vehicle in violation of Minn. Stat. The court denied their motion for a jury instruction on lesser crimes. The jury convicted Anderson and Gunnufson for failure to yield to an emergency vehicle but was unable to agree on the charge of fleeing a peace officer in a motor vehicle.
Statutory interpretation is a question of law subject to de novo review.
A defendant may be convicted of either the crime charged or an included offense, but not both. 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. 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. If the lesser offense requires an element not required by the greater offense, then the lesser offense is not a necessarily-included offense. 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.