A lesser-included offense could make the difference between prison time or probation, prison time or a fine, or substantial prison time or a short stint in the county jail, whether you are accepting a plea offer or taking your case to trial.
But what does it mean? How do you prove it?
Below, we will cover the basics of lesser-included offenses in SC law, including:
- The “elements test” to determine whether a crime is a lesser-included offense of another greater crime,
- Why lesser-included offenses matter in a guilty plea or criminal trial,
- Examples of lesser-included offenses, and
- Case law defining lesser-included offenses.
What is a Lesser Included Offense?
A lesser-included offense is a lesser crime that has some of the elements of a greater crime and that allows 1) the prosecutor to reduce the charges to the lesser-included offense for purposes of a plea agreement or 2) the jury to find a defendant guilty of the lesser-included offense at trial.
Why do lesser-included offenses matter?
Because the lesser-included offense carries a lower penalty – a person who is charged with possession with intent to distribute (PWID) marijuana, for example, may be facing years in prison.
If a jury finds them guilty of simple possession at trial, however, the judge can only sentence them to a maximum of 30 days in jail, and, depending on the judge and the facts of the case, the penalty may be only a fine…
Or, in some cases, the prosecutor may decide to reduce the PWID charge to a simple possession charge before the trial, giving the defendant the option of pleading guilty to a 30-day misdemeanor instead of going to trial on the more serious PWID charges.
The “Elements Test”
How do we know if a lesser charge is a “lesser-included offense” of a greater charge?
In most cases, it is defined by case law – if the greater offense includes all the elements of the lesser offense, the lesser offense is probably going to be considered a lesser-included offense, and, at trial, the judge must give the jury the option of finding the defendant guilty of the lesser offense:
The trial judge is to charge the jury on a lesser included offense if there is any evidence from which the jury could infer that the lesser, rather than the greater, offense was committed. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). The primary test for determining if a particular offense is a lesser included of the offense charged is the elements test. State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001). The elements test inquires whether the greater of the two offenses includes all the elements of the lesser offense. State v. McFadden, 342 S.C. 629, 632, 539 S.E.2d 387, 389 (2000).
In some cases, lesser-included offenses are defined by statute. For example, SC’s assault and battery laws expressly state that each level of assault and battery is a lesser-included offense of the greater levels, from assault and battery third-degree up to attempted murder charges.
Examples of Lesser Included Offenses in SC Law
Some common examples of lesser included offenses under SC law include:
- Assault and battery charges (statutory lesser-included offenses) – assault and battery third-degree carries up to 30 days in jail and is a lesser-included offense of attempted murder which carries up to 30 years in prison,
- Drug crimes (determined by the elements test) – simple possession of marijuana carries up to 30 days in jail and is a lesser-included offense of PWID marijuana which carries up to five years in prison,
- DUI 1st offense with no BAC result carries a maximum penalty of 30 days and is a lesser-included offense of DUI 4th or subsequent offense with a BAC of .15 or greater which carries a mandatory minimum of three years and up to seven years in prison, or
- DUI 1st offense with no BAC result carries up to 30 days and is a lesser included offense of DUI 1st offense with a BAC of .15 or greater which carries up to 90 days in jail.
Some examples of charges that are not lesser-included offenses include:
- Criminal sexual conduct (CSC) charges – CSC 3rd degree is not a lesser-included offense of CSC 1st degree, because it does not pass the elements test (see, State v. McFadden) and because the CSC statute does not specify that the offense is a lesser-included,
- Trespass is not a lesser-included offense of burglary – although both have entry without consent as an element, trespass has the additional element of notice that is not required for burglary charges (see, State v. Cross), and
- Reckless driving is not a lesser included offense of DUI because it does not pass the elements test – if a prosecutor offers reckless driving as part of a plea agreement to dismiss your DUI charges, they must write a new ticket or warrant for the new charge instead of pleading under the original ticket or warrant.
Voluntary Manslaughter or Murder?
In State v. Leggette, decided last week, the SC Court of Appeals held that the defendant’s trial lawyer was not ineffective for failing to object to the court’s instruction on voluntary manslaughter as a lesser-included offense of murder, because there was some evidence introduced at trial that would support a verdict of voluntary manslaughter.
First, voluntary manslaughter is a lesser-included offense of murder. Second, if there is any evidence that would support voluntary manslaughter, the court must charge it as a lesser-included offense, giving the jury the option of finding the defendant guilty of the lesser offense (which carries a maximum of 30 years in prison) instead of murder (which carries a mandatory minimum of 30 years in prison).
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
