Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Also see Jury
Instructions; Jury Matters;
For cases on when one offense is a lesser
included offense of another, see sections on specific offenses.
Criminal Rule 30 --
R.C. 2945.74, Rule 31(C) -- Defendant may be
found guilty of lesser included offense or attempt.
State v. Evans,
122 Ohio St. 3d 381,
2009-Ohio-2974 – State v. Deem decided in 1988
is deemed to have imposed an overly strict standard for comparison of elements
in determining whether one offense is a lesser included offense to another.
Paragraph 3, subsection (ii) of the Deem syllabus is softened by removing the
word "ever." This is calculated to reduce the incidence of incongruous and
illogical results, though the evil viewed is defendants going free if the
indictment does not include both offenses. A more fact based test will ensure an
implausible scenario does not prevent recognition of a logical lesser included
offense. Syllabus: "(1) Robbery as defined in
is a lesser included offense of aggravated robbery as defined in
2911.019(A)(1). (2) In determining whether an offense is a lesser included
offense of another, a court shall consider whether one offense carries a greater
penalty than the other, whether some element of the greater offense is not
required to prove commission of the lesser offense, and whether the greater
offense as statutorily defined cannot be committed without the lesser offense as
statutorily defined also being committed. (State v. Deem
(198), 4 Ohio St. 3d 205, 533 N.E. 2d 294, clarified."
Smith, 117 Ohio St. 3d 447,
2008-Ohio-1260 – Syllabus: "(1) In determining whether an
offense is a lesser included offense of another when a statute
sets forth mutually exclusive ways of committing the greater
offense, a court is required to apply the second part of the
test established in State v. Deem
(1988), 40 Ohio St. 3d 205, 533 N.E. 2d 294, paragraph three of
the syllabus, to each alternative method of creating the greater
offense. (2) Theft, as defined in
2913.02, is a lesser included offense of robbery, as defined
R.C. 2911.02." From the body of the opinion it appears this
does not apply to robbery premised on attempted theft which is a
mutually exclusive way of committing the greater offense. The
degree of the theft conviction is not limited to M-1 theft as
the court views value as a special finding to determine the
degree of the offense and not a part of the definition of the
Smith, 121 Ohio St. 3d 409,
2009-Ohio-787 – Same case as 117 Ohio St. 3d 447 on
reconsideration. The elements of theft are as set forth in
2913.02(A). Additional matters affecting punishment are
deemed "special findings" and are not elements. In an indictment
for theft, due process requires such matters be alleged, but the
fact the defendant has been indicted for robbery is sufficient
to place him on notice that if found guilty of the lesser
included offense of theft his penalty might be increased by
"special findings" such as value.
State v. Jones, 193
Ohio App. 3d 400,
2011-Ohio-1717 – Defendant was indicted for F-2 robbery
premised on the threat of harm, but the jury was instructed only
on F-3 robbery premised on force. The F-3 offense is a
lesser-included. Instructing on only the lesser offense
constitutes a partial acquittal. This was the apparent
understanding of the parties. Conviction may be entered only on
the F-3. Ineffective assistance for trial counsel not to
recognize the problem. Defendant was not entitled to an
instruction on petty theft by force.
State v. Kvasne,
168 Ohio App. 3d 167,
2006-Ohio-5235 -- Abduction is a lesser included offense to kidnapping. In
determining what constitutes a lesser included offense some attention must be
given to the facts of the case. Abstract comparison of the elements may allow
"criminal defendants to walk away from their crimes." ¶59: "What has been bound
together in law for centuries, therefore, should not be rent asunder by a too
literal application of Deem and conflated by Rance."
State v. Daugherty, 166 Ohio App. 3d
2006-Ohio-1133 -- Assault is not a lesser-included offense to misdemeanor
domestic violence. Though the elements are congruent for purposes of steps two
and three of Deem
analysis, assault does not carry a lesser penalty. Additional consequences with
respect to bail and expungement are not a part of the penalty.
State v. Watson, 154 Ohio App. 3d 150,
2003-Ohio-4664 -- Robbery premised on the threat or use of immediate force is a
lesser included offense to some, but not all, alternative theories of
culpability for robbery premised on threat, infliction or threat of physical
harm. Applying Whalen v. United States (1980), 445 U.S. 684 to preempt
stricter Ohio views on lesser-included offenses and allied offenses of similar
import, court applies analysis to individual theories of culpability. Result
here is conclusion defendant was properly convicted of a lesser included
offense, but same analysis might undermine Rance
analysis concerning allied offenses of similar import.
State v. Parker, 149 Ohio App. 3d 681,
2002-Ohio-5536 -- Disorderly conduct as a fourth degree misdemeanor is not a
lesser-included offense to assault. Minor misdemeanor disorderly is a
lesser-included, but the M-4 offense requires proof of persistence, which is an
element and not merely a factual basis supporting an enhanced penalty.
State v. Davis, Clark App. No. 2002-CA-43,
2003-Ohio-4839, ¶ 25-34 -- Second indictment charged defendant with a
lesser-included offense to one of the counts in the original indictment. Waiver
of speedy trial rights with respect to the first indictment held to carry over
to second indictment on which time would otherwise have run. State v. Adams
(1989), 43 Ohio St. 3d 67 distinguished on the basis that the additional charge
there arose from the same facts, but was not a lesser-included offense.
State v. Mays, 161 Ohio App. 3d 175,
2005-Ohio-2609 -- Plain error found in additional instructions to jurors after
they handed down a verdict finding the defendant guilty of felonious assault
without considering aggravated assault. Aggravated assault is an offense of
lesser degree and not a lesser included offense. It is not an offense to be
considered only if the jury concludes the elements of felonious assault were not
proven. Error also extends to the related felony-murder count, as that was
premised on commission of a first or second degree felony. Vague indictment also
faulted for not expressing which counts were premised on beating an elderly man
with a digital camera and which on poisoning him with antifreeze.
State v. Wilkins (1980), 64 Ohio St. 2d
383 -- A jury should be instructed on a lesser included offense when they might
reasonably find against the state on one or more elements of the principal
offense charged, and against the defendant on the remaining elements, which by
themselves constitute an offense. "The persuasiveness of the evidence regarding
the lesser included offense is irrelevant. If under any reasonable view of the
evidence it is possible for the trier of fact to find the defendant not guilty
of the greater offense and guilty of the lesser offense, the instruction on the
lesser offense must be given." Also see State v. Nolton (1969), 19 Ohio
St. 2d 133.
State v. Harris (May 25, 1982), Franklin
Co. App. No. 81AP-383 (1982 Opinions 1587) -- Even when defense is alibi, court
must charge on lesser included-offense if jury could reasonably find against the
state on one or more elements of the principal offense. Also see State v.
Williams (1981), 2 Ohio App. 3d 289.
State v. Osburn (1976), 52 Ohio App. 2d
146 -- The mere assertion of an affirmative defense does not prevent
consideration of a lesser-included offense.
State v. Thomas (1988), 40 Ohio St. 3d 213
-- A jury is not required to unanimously agree that the defendant is not guilty
of the crime charged before it may consider a lesser included offense.
State v. Osburn (1983), 9 Ohio App. 3d 343
-- When the jury is instructed on voluntary manslaughter in addition to more
serious homicide charges, it is error to instruct the jury not to consider the
lesser offense until had decided defendant was not guilty of the greater
offense. Also see State v. Carter
(1985), 23 Ohio App. 3d 27; State v. Shaw (1990), 65 Ohio App. 3d 821.
State v. Mabry (1982), 5 Ohio App. 3d 13
-- A trial court must instruct on a lesser-included offense where the jury may
reasonably infer from the evidence that an element of the greater offense has
not been established beyond a reasonable doubt, but the facts may reasonably
support the elements of a lesser-included offense. Also see State v. Solomon
(1981), 66 Ohio St. 2d 214.
State v. Deem (1988), 40 Ohio St. 3d 205
-- Offenses of inferior degree and lesser included offenses defined, paragraphs
2 and 3 of the syllabus: "2. An offense is an 'inferior degree' of the indicted
offense where its elements are identical to or contained within the indicted
offense, except for one or more additional mitigating elements. (R.C. 2945.74
and Crim. R. 31[C] construed.) 3. An offense may be a lesser included of another
if (i) the offense carries a lesser penalty than the other; (ii) the greater
offense cannot, as statutorily defined, ever be committed without the lesser
offense, as statutorily defined, also being committed; and (iii) some element of
the greater offense is not required to prove the commission of the lesser
offense. (State v. Kidder
, 32 Ohio St. 3d 279, 513 N.E. 2d 311, modified.)"
Hopkins v. Reeves (1998), 524 U.S. 88 --
State courts in capital murder cases are not required to instruct on lesser
included offenses unless under state law an offense is a lesser included to
capital murder. Under Nebraska law, there are no lesser included offenses to
felony murder. Beck v. Alabama (1980), 447 U.S. 625 is distinguished on
the basis that Alabama law prohibited instructions on lessers in capital cases,
but not in non-capital murder cases.
Spaziano v. Florida (1984), 468 U.S. 447
-- No obligation to instruct the jury on a lesser included offense in a capital
murder case where prosecution for such lesser offense would be barred by the
statute of limitations.
State v. Parra (1980), 61 Ohio St. 2d 236
-- Counsel must specifically state which lesser-included offense is to be
covered in instruction to preserve issue for appeal.
State v. Schmidt (1995), 100 Ohio App. 3d
167 -- A court may instruct a jury on a lesser included offense over the
objection of the defendant. Compare State v. Clayton (1980), 62 Ohio St.
2d 45, fn. 2.
State v. Roberts (1996), 109 Ohio App. 3d
634 -- It was plain error to instruct the jury that they could consider the
offense of lesser degree of aggravated assault only if they concluded the state
had failed to prove one or more of the elements of felonious assault.
State v. Furlow (1993), 90 Ohio App. 3d
699 -- Court of appeals reversed a robbery conviction and remanded for
resentencing on the lesser included offense of theft. In a second appeal, the
trial court was found to have erroneously sentenced the defendant for grand
theft, since the element of value, which elevates the degree of the offense, had
not been submitted to the jury at the robbery trial.
State v. Lytle (1990), 49 Ohio St. 3d 154
-- Syllabus: "Where a defendant is convicted of a third or fourth-degree felony
that is a lesser included offense of a felony of greater degree, and where the
felony of greater degree is charged in the indictment and is accompanied by a
firearm specification, pursuant to
R.C. 2941.141(A), the firearm specification
applies to the lesser included offense."
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