§ 300.40 Court's charge; submission of indictment to jury; counts to

be submitted.

The court may submit to the jury only those counts of an indictment
remaining therein at the time of its charge which are supported by
legally sufficient trial evidence, and every count not so supported
should be dismissed by a trial order of dismissal. The court's
determination as to which of the sufficient counts are to be submitted
must be in accordance with the following rules:

1. If the indictment contains but one count, the court must submit
such count.

2. If a multiple count indictment contains consecutive counts only,
the court must submit every count thereof.

3. If a multiple count indictment contains concurrent counts of murder
in the first degree, the court must submit every such count. In any
other case, if a multiple count indictment contains concurrent counts
only, the court must submit at least one such count, and may submit more
than one as follows:

(a) With respect to non-inclusory concurrent counts, the court may in
its discretion submit one or more or all thereof;

(b) With respect to inclusory concurrent counts, the court must
submit the greatest or inclusive count and may or must, under
circumstances prescribed in section 300.50, also submit, but in the
alternative only, one or more of the lesser included counts. A verdict
of guilty upon the greatest count submitted is deemed a dismissal of
every lesser count submitted, but not an acquittal thereon. A verdict
of guilty upon a lesser count is deemed an acquittal upon every greater
count submitted.

4. If a multiple count indictment contains two or more groups of
counts, with the counts within each group being concurrent as to each
other but consecutive as to those of the other group or groups, the
court must submit at least one count of each group, in the manner
prescribed in subdivision three. If an indictment contains one or more
of such groups of concurrent counts, and also one or more other counts
each of which is consecutive as to every other count of the indictment,
the court must submit each individual consecutive count and at least one
count of each group of concurrent counts.

5. If an indictment contains two inconsistent counts, the court must
submit at least one thereof. If a verdict of guilty upon either would
be supported by legally sufficient trial evidence, the court may submit
both counts in the alternative and authorize the jury to convict upon
one or the other depending upon its findings of fact. In such case, the
court must direct the jury that if it renders a verdict of guilty upon
one such count it must render a verdict of not guilty upon the other.
If the court is satisfied that a conviction upon one such count, though
supported by legally sufficient trial evidence, would be against the
weight of the evidence while a conviction upon the other would not, it
may in its discretion submit the latter count only.

6. Notwithstanding any other provision of this section, the court is
not required to submit any particular count to the jury when:

(a) The people consent that it not be submitted; except that nothing
contained in this paragraph limits the right accorded a defendant by
section 300.50 to the submission, in certain situations, of counts
charging lesser included offenses; or

(b) The number of counts or the complexity of the indictment requires
selectivity of counts by the court in order to avoid placing an unduly
heavy burden upon the jury in its consideration of the case. In such
case, the court may submit to the jury a portion of the counts which are
representative of the people's case.

7. Every count not submitted to the jury is deemed to have been
dismissed by the court. Where the court, over objection of the people,
refuses to submit a count which is consecutive as to every count
actually submitted, such count is deemed to have been dismissed by a
trial order of dismissal even though no such order was expressly made by
the court.