What is a lesser included offense?

Sometimes, a person will plead guilty to a lesser included offense, or a jury will find a person guilty of a lesser included offense instead of the more serious offenses presented at trial. But what qualifies as a lesser included offense?

It’s not just a criminal charge that is less serious than the one you are charged with. Some offenses are lesser included offenses while others are not, and there is a specific legal test to determine whether a person can plead guilty to a less serious crime without being re-indicted or whether a jury can find someone guilty of a less serious crime.

Below, I’ll discuss the legal test for whether a crime is a lesser included offense of another crime and why it matters.

What is a Lesser Included Offense? 

A lesser included offense is a less serious crime that necessarily was committed if you committed the greater crime.

If you committed the greater crime, you definitely also committed the lesser crime. On the other hand, if you committed the lesser crime, you did not necessarily also commit the greater crime…

The Elements Test

The “elements test” is what determines whether a crime is a lesser included offense of another crime in most cases (but not all – see below).

If the elements of the lesser crime are all also elements of the greater crime, the lesser crime is a lesser included offense of the greater crime. If the lesser crime has some elements that are not also elements of the greater crime, then the lesser crime is not a lesser included offense.

For example, in State v. Watson in 2002, the SC Supreme Court held that reckless homicide is not a lesser included offense of murder.

The elements of the common-law offense of murder are codified at S.C. Code Ann. § 16-3-10 (1985): “‘Murder’ is the killing of any person with malice aforethought, either express or implied.” “Reckless homicide” is defined at S.C. Code Ann. §56-5-2910 (Supp. 2000). Section 56-5-2910 provides that “[w]hen the death of a person ensues within one year as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others, the person operating the vehicle is guilty of reckless homicide. . . .”

Reckless homicide requires proof that the defendant (1) operated an automobile (2) in reckless disregard for the safety of others; (3) the defendant’s conduct proximately caused injury to the victim, and (4) within one year, the victim died as a result of these injuries.

Murder does not require the operation of an automobile. In addition, murder requires malice, either express or implied, whereas reckless homicide requires recklessness. Strict application of the elements test leads to the conclusion that reckless homicide is not a lesser included offense of murder.

Murder does not require that a person was operating an automobile or reckless disregard, both of which are elements of reckless homicide, therefore reckless homicide is not a lesser included offense of murder.

Another example is the crime of trespass and the greater crime of burglary – is trespass a lesser included offense of burglary in SC?

In SC, trespass is not a lesser included offense of burglary because trespass has elements that are not required for a burglary conviction – trespass requires prior notice (or someone telling you to leave), whereas burglary requires only the entry of a dwelling without consent (it does not matter if you were warned not to enter):

First degree burglary requires the entry of a dwelling without consent with the intent to commit a crime therein, as well as the existence of an aggravating circumstance. S.C.Code Ann. § 16-11-311 (Supp.1993). Statutory criminal trespass involves either (1) the entry of a dwelling house, place of business or the premises of another within six months after being warned against such entry or (2) the failure to leave a dwelling house, place of business or premises of another after having been requested to leave. S.C.Code Ann. § 16-11-620 (1976).

Of course, things are never so simple. In addition to the elements test, some offenses are considered lesser included offenses because the courts say they are…

Common Law 

The SC Supreme Court in Watson also acknowledged that, sometimes, a crime is a lesser included offense because it “has traditionally been considered a lesser included offense.” Although it may not pass the elements test, it’s a lesser included offense if we say it is:

While the elements of murder do not include all elements of reckless homicide, State v. Elliott, supra, makes clear that the lesser included inquiry does not end with an application of the elements test. In Elliott we held that where an offense has traditionally been considered a lesser included offense of the greater offense charged, we will continue to construe it as a lesser included, despite the failure to strictly satisfy the elements test.

Although the Court identified one previous appellate opinion where they had stated reckless homicide is a lesser included offense of murder in dicta, nothing else “in the jurisprudence of this state indicates that reckless homicide is a lesser included offense of murder.”

In State v. Hernandez, decided last month, the SC Supreme Court held that ABHAN (assault and battery of a high and aggravated nature) is no longer a lesser included offense of CSC (criminal sexual assault) charges in SC.

Although ABHAN was a lesser included offense of CSC, it never met the elements test and it was considered a lesser included offense only because the Court said it was – and now it is not, because the Court says it is not…

Why Does it Matter if There is a Lesser Included Offense? 

If you are charged with trafficking cocaine and facing 30 years in prison, you probably would like to at least have the option of pleading guilty to possession or possession with intent to distribute and the hope of a lighter sentence…

Prosecutors are more likely to offer a lesser included offense as part of a plea bargain than an unrelated offense because you can plead under the same indictment. You cannot plead guilty to an offense for which you have not been indicted (although you can waive indictment in some cases).

More importantly, if you are going to trial, you may want the jurors to have the option of finding you guilty on a lesser included offense with a lesser punishment. If there are lesser included offenses that are supported by the evidence, the Court must charge them unless you and your prosecutor waive them…

SC Criminal Defense Lawyers in Myrtle Beach

If you have been arrested and charged with a crime in the Myrtle Beach, SC area, lesser included offenses can be important both for plea bargaining and at trial. Your attorney at Coastal Law will investigate your case, including whether any lesser included offenses apply to your charges, get your case dismissed, find a resolution that you can agree to, or take your case to trial.

Call the Myrtle Beach criminal defense attorneys at Coastal Law now at (843) 488-5000 or email us through our website to set up a free consultation to discuss your case.