
    STATE v. ERIC W. SINGER.
    250 N. W. 2d 832.
    January 14, 1977
    No. 45844.
    
      C. Pond Jones, State Public Defender, for appellant.
    
      Warren Spannaus, Attorney General, William B. Randall, County 'Attorney, and Steven C. DeCoster, Assistant County Attorney, for respondent.
   Considered and decided by the court without oral argument.

Per Curiam.

Defendant was charged by information with (a) aggravated rape in violation of Minn. St. 609.291, subd. 2 (resistance prevented by fear of immediate and great bodily harm), (b) aggravated rape, Minn. St. 609.17, 609.291, subd. 2, and (e) indecent liberties, Minn. St. 609.296. At the trial in district court these three offenses were submitted along with the lesser-included offense of simple assault, Minn. St. 609.22. The jury found defendant guilty of attempted aggravated rape and the trial court sentenced defendant to a maximum indeterminate term of 15 years’ imprisonment.

Singer contends that the evidence will not support a verdict of guilty of rape where resistance was prevented by fear of immediate and great bodily harm. Minn. St. 609.291, subd. 2. Rather, he contends that resistance was overcome by force, Minn. St. 609.291, subd. 3, for which act he was not charged. We have reviewed the record and find sufficient evidence of fear testified to by the victim. This fact distinguishes this case from our decisions in State v. Jones, 266 Minn. 523, 124 N. W. 2d 727 (1963), and State v. Christofferson, 149 Minn. 134, 182, N. W. 961 (1921), which are relied upon by Singer.

Affirmed.  