Lesser Included Offenses


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Criminal Rule 30 -- Instructions.
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-2974State 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 R.C. 2911.02(A)(2) is a lesser included offense of aggravated robbery as defined in R.C. 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."
State v. 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 R.C. 2913.02, is a lesser included offense of robbery, as defined in 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 crime.
State v. 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 R.C. 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 551, 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 [1987], 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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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.