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Lesser-Included Offenses

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by: Ryan • February 13, 2013 • no comments

The Oregon Court of Appeals has been quite consistent regarding a particular legal issue, and it reflects well on them.

The issue is whether the failure of the trial court to submit a lesser-included instruction to the jury -- when it's requested and when facts support it -- is reversible error. The Court has said it is, but it's not merely the "error" part that reflects well on them. It's the "reversible" part.

The State has argued -- with strict adherence to stone-cold logic -- that given the "acquittal first" instruction (that is, the jury must acquit on the greater offense before considering the lesser offense), any failure to give a lesser-included instruction is harmless.

While there is -- as I said -- some very Vulcanesque logic in that argument, it ignores the reality of how human beings actually consider and decide issues of guilt. There is no question -- as the COA has recognized -- that most if not all jurors are going to approach the decision to convict differently if the juror knows that acquittal on the greater offense would result in complete exoneration. It's a very human impulse to find the middle ground, especially when there is some question whether defendant might be overcharged. But if you deny the jury the middle ground, it's also more realistic to expect them to convict of something -- in this case the greater offense -- than to acquit on everything.

In sum, the jury knows -- before they decide guilt or innocence on the greater offense -- what options remain available to them, and that can't help but impact the decision-making process.

Today, the COA stuck by that ruling, in a case called St v. Cluver. The Cluver court also rejected the state's argument that, even though a lesser-included offense was justified by the facts, it wasn't justified by the defendant's theory of defense. Fortunately, the court rejected that argument, recognizing -- I believe -- that the jury is not limited to acquitting a defendant based only on the arguments put forward by defense counsel.

"As the emphasized text makes clear, whether a requested lesser included offense instruction must be given depends on the evidence adduced at trial, not on the logical consistency between the instruction and the theory, or theories, advanced by its proponent. We therefore reject the state's contrary assertion.

Most prosecutors know by now not to object to a defense-requested lesser-included instruction. And the Court has recently held that failure to ask for a lesser-included instruction can constitute ineffective assistance of counsel. I think the trick for defense lawyers is to find and ask for lesser-included instructions that aren't immediately obvious. Here are some from case law:

In a charge of attempted aggravated murder, you can get an instruction for recklessly endangering another person.State v. Moses, 165 Or App 317, 997 P2d 251, rev den, 331 Or 334, 23 P3d 986 (2000).

Menacing and Attempted Assault in the First Degree can be lesser-included of Attempted Murder with a Firearm. Trotter v. Santos, supra. (“We have previously held that attempted murder with a firearm includes both attempted first-degree assault with a firearm and menacing as lesser-included offenses. 1 State v. Fox, 98 Or App. 356, 357, 779 P2d 197, rev den, 308 Or 608, 784 P2d 1101 (1989); State v. Rainwater, 26 Or App 593, 597, 553 P2d 1085 (1976).”)

I am currently arguing on appeal that "recklessly endangering" is a lesser-included of Assault III, when the assault III alleges recklessness, physical injury and a dangerous weapon. While recklessly endangering requires a risk of "serious physical injury," not mere injury, the fact that a dangerous weapon was used (which requires a weapon capable of causing serious physical injury in the manner in which it was used), I think I'll prevail (though I'm arguing it as plain error, so you never know). This is in the context of merger, rather than the failure to give a lesser-included instruction, but the principles are roughly the same.