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Lesser Included Offenses have been defined by the Oklahoma Court of Criminal Appeals as "an offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser." (See Shrum v State, 19999 OK CR 41, 991 P2d 1032 (Okla.Crim.1992))
A person can not be convicted of both a lesser included offense and the greater offense, this has important ramifications for those accused of crimes. For exmaple Assault and Battery is a lesser included offense to Domestic Assault and Battery. It would be impossible for someone to commit the offense of domestic assault and battery without committing the offense of simple misdemeanor assault and battery. Lesser included offenses are important to keep in mind when defending someone of a crime. The are a number of scenerios, both in plea negotiations and trial, where a defense attorney can save his client using lesser included offenses.
For example, I once represented a client who was charged with sexual battery, my client was a car salesman that was accussed of touching the decals on a woman's shirt. My client had legally lived in the United States for a number of years with a green card. My client was married and had two children. If my client was convicted of a felony he would be kicked out of the country. The prosecutor was very unreasonable and we had to try the case to a jury. I requested and the judge instructed that they could also consider the lesser included offense of simple misdemeanor assault and battery. The jury convicted my client of misdemeanor assault and battery instead of the felony sexual battery. This saved my client from jail, a felony conviction and being kicked out of the country and seperated from his family.
In another case I represented a client charged with Domestic Assault and Battery, my client had slapped her ex-boyfriend in public (and the state even had a video of the event), but he really deserved it. If my client would have pled to Domestic Assault and Battery she would have been required to attend 52 weeks of classes and would not be able to legally possess a firearm. Through plea negotiations I was able to negotiate a plea to the lesser included offense of midemeanor simple assault and battery. This saved my client 52 weeks of classes and preserved her right to own a firearm.
Lesser included included offenses are a great tool at trial and should be carefully considered. One of the reasons that lesser included offenses are so helpful to a defendant is because normally it takes an unanimous verdict from a jury to acquit a defendant of a crime. However, if a defendant is on trial, a defendant can be acquitted of the greater offense with a less than an unanimous verdict. The Oklahoma Jury Instruction that deals with lesser included offenses is OUJI-CR-10-24 and reads in part as follows:
You are not required to determine unanimously that the defendant is not guilty of the crime charged before you consider a lesser included offense. If you have a reasonable doubt as to which offense the defendant may be guilty of, you may find him/her guilty only of the lesser offense. if you have a reasonable doubt as to the guilt of the defendant on all such offenses, you must find him/her not guilty of any crime.
This is a great tool for a defendant at trial. Remeber that during deliberations jurors often disagree. Let's say that a defendant is on trial for first degree murder and gets the judge to instruct the jury they may consider a charge of second degree murder and during deliberations the jury can not agree unanimously regarding guilt or innocence on first degree murder. According to the lesser included offense instruction if the jury can not agree unanimously on guilt of first degree murder they can consider guilt or innocence on second degree murder. If the jury convicts of second degree murder the defendant is acquitted of first degree murder. There is a huge difference between the punishment for first and second degree murder. First degree murder has a minimum sentence of life. Second degree murder carries a minimum sentence of ten (10) years.