Section 24.11 Lesser-Included Offenses

• Library: Criminal Practice 2012 Supp

D. (§24.11) Lesser-Included Offenses

Missouri law with respect to submitting lesser offenses is full of surprises. The rules seem simple enough, but the application of the rules may require some research. Persuading the court to give a lesser-included offense may require more than merely offering a verdict director submitting the lesser offense because giving an instruction not supported by the charge or the evidence can lead to reversal if the defendant is convicted of the lesser charge; refusing to submit a lesser-included offense that is supported by the charge and the evidence can likewise lead to reversal.

If a defendant is convicted of a lesser offense that is not included in the charge, a reversal is required because the defendant is denied due process if the defendant is convicted of an offense not within the scope of the charge. Thus, in State v. Shipley, 920 S.W.2d 120 (Mo. App. E.D. 1996), the trial court erred in submitting stealing by deceit as a lesser offense of robbery. The appellate court explained:

Stealing by deceit requires proof of additional facts, not just “the same or less” facts. Those additional facts include the defendant’s deceit, the defendant’s statements, and the victim’s reliance thereon. See MAI-CR 3d 324.02.2, stealing by deceit, and compare with MAI-CR 3d 323.02, first degree robbery. Thus, stealing by deceit is not a lesser included offense of robbery.

Id. at 123. Shipley’s conviction was reversed, in spite of his trial attorney’s failure to object to the submission of the lesser offense, because “it is ‘elementary law that an accused cannot be charged
with one offense and convicted of another.’” Id. (quoting State v. Gant, 586 S.W.2d 755, 762 (Mo. App. W.D. 1979)).

On the other hand, the trial court risks reversal for failing to
submit a lesser offense that is warranted by both the charge and the evidence. In State v. Barnard, 972 S.W.2d 462 (Mo. App. W.D. 1998), the court reversed the defendant’s conviction for statutory sodomy, § 566.062, now RSMo 2000, because the trial court failed to submit the lesser offense of child molestation in the second degree. In arriving at this conclusion, the court applied the statutory elements test:

“If the greater of the two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.”

Barnard, 972 S.W.2d at 465 (quoting State v. Neighbors, 613 S.W.2d 143, 148 (Mo. App. W.D. 1980)). To apply this test, the court asked whether, under the evidence in the case, it is impossible to commit the greater without committing the lesser. Barnard testified that he did reach into the 13-year-old victim’s pants and touch her vagina but that he withdrew his hand immediately. He denied penetration. On this evidence, the court reasoned:

The question whether “it is impossible to commit the greater without committing the lesser” becomes, under the facts of this case, whether it is impossible to penetrate the vagina of the Victim with the Appellant’s finger without the Appellant touching the vagina of the Victim. It is.

Barnard, 972 S.W.2d at 465–66. Because credibility was the central issue in the case, the court found that the failure to submit the lesser offense required a new trial.

The author recommends that counsel ask two questions:

Is the lesser offense included in the offense charged?

Would the evidence support a verdict acquitting the defendant of the greater offense but finding the defendant guilty of the lesser offense?

The first question may not be as easy to answer as it seems. One must begin with the principle that it is denial of due process of law to be convicted of a crime other than the one charged. State v. Blair,
638 S.W.2d 739, 747 (Mo. banc 1982). Thus a “court may not instruct on an offense not specifically charged in the information or indictment unless it is a lesser included [or lesser degree] offense.” State v. Smith, 592 S.W.2d 165 (Mo. banc 1979). The question of what constitutes an offense that is included in the indictment or information is controlled by § 556.046.1, RSMo Supp. 2004:

1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It is specifically denominated by statute as a lesser degree of the offense charged; or

(3) It consists of an attempt to commit the offense charged...