lesser included offense instruction in Washington

2025Under the factual prong, “[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit [them] of the greater, a lesser included offense instruction should be given.” State v. Berlin, 133 Wn.2d 541, 551 , 947 P.2d 700 (1997); see also Workman, 90 Wn.2d at 448 .

2024Therefore, we apply “the lesser included offense analysis . . . to the offense[] as charged and prosecuted, rather than to the offense[] as [it] broadly appear[s] in [the] statute.” Id.

2021App. 56, 64 , 14 P.3d 884 (2000), and the Workman test is used to determine if a lesser included offense instruction is warranted, State v. Fernandez-Medina, 141 Wn.2d 448, 454 , 6 P.3d 1150 (2000) (citing Workman, 90 Wn.2d at 447-48 ). 15 Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563 , 947 P.2d 708 (1997)). 16 Hahn, 174 Wn.2d at 129 (citing State v. Wilson, 125 Wn.2d 212, 218 , 883 P.2d 320 (1994)). 10 No. 80768-4-I/11 included offense of an attempted touching occurred,17 the trial court did not abuse its discretion by refusing to give the lesser included ins

2021App. 56, 64 , 14 P.3d 884 (2000), and the Workman test is used to determine if a lesser included offense instruction is warranted, State v. Fernandez-Medina, 141 Wn.2d 448, 454 , 6 P.3d 1150 (2000) (citing Workman, 90 Wn.2d at 447-48 ). 15 Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563 , 947 P.2d 708 (1997)). 16 Hahn, 174 Wn.2d at 129 (citing State v. Wilson, 125 Wn.2d 212, 218 , 883 P.2d 320 (1994)). 10 No. 80768-4-I/11 included offense of an attempted touching occurred,17 the trial court did not abuse its discretion by refusing to give the lesser included ins

2011Id. (“In these circumstances, we can see no legitimate reason to fail to request a lesser included offense instruction.

2010RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wash.App. at 248 , 104 P.3d 670 ; see, e.g., Fowler, 114 Wash.2d at 67 , 785 P.2d 808 . ¶ 47 Under the factual prong of the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence must support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense.

2026Under the test first articulated in State v. Workman, 90 Wn.2d 443 , 584 P.2d 382 (1978), “a defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong).” State v. Coryell, 197 Wn.2d 397, 400 , 483 P.3d 98 (2021).

2026Under the test first articulated in State v. Workman, 90 Wn.2d 443 , 584 P.2d 382 (1978), “a defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong).” State v. Coryell, 197 Wn.2d 397, 400 , 483 P.3d 98 (2021).

2010App. 209, 216-17 , 211 P.3d 441 (2009). ¶24 A defendant is entitled to a lesser included offense instruction “if each of the elements of the lesser offense is a necessary element of the greater offense (the legal prong), and the evidence supports an inference that only the lesser offense was committed (the factual prong).” State v. Pittman, 134 Wn.

2010Mullins contends counsel was ineffective for failing to request an instruction on the lesser included offense. ¶ 23 In order to prevail on an ineffective assistance claim, the defendant must demonstrate "(1) deficient performance, that his attorney's representation fell below the standard of reasonableness, and (2) resulting prejudice that, but for the deficient performance, the result would have been different." State v. Hassan, 151 Wash.App. 209, 216-17 , 211 P.3d 441 (2009). ¶ 24 A defendant is entitled to a lesser included offense instruction "if each of the elements of the lesser offense

2024This court first considered Strickland in the context of counsel’s failure to request a lesser included offense instruction in State v. Grier, 171 Wn.2d 17 , 246 P.3d 1260 (2011).

2023Where a jury found the defendant guilty of second degree murder, the Supreme Court held there was no prejudice for failure to request a lesser-included offense instruction because “assuming, as this court must, that the jury would not have convicted [the defendant] of second degree murder unless the State had met its burden of proof, the availability of a compromise 15 No. 56202-2-II verdict would not have changed the outcome of [the] trial.” State v. Grier, 171 Wn.2d 17, 43-44 , 246 P.3d 1260 (2011).

2013The right to instruct the jury on a lesser included offense is a statutory right.1 Under the test enunciated by the supreme court in State v. Workman, a defendant is entitled to a lesser included offense instruction "iftwo conditions are met."2 First, under the legal prong of the test, each element of the lesser offense must be a necessary element of the charged offense.3 Second, under the factual prong, "the evidence must support an inference that the lesser crime was 1 State v. Bowerman. 115 Wn.2d 794, 805 , 802 P.2d 116 (1990); RCW 10.61.003, 10.61.006. 2 90 Wn.2d 443, 447 , 584 P.2d 382 (1

2013The right to instruct the jury on a lesser included offense is a statutory right.1 Under the test enunciated by the supreme court in State v. Workman, a defendant is entitled to a lesser included offense instruction "iftwo conditions are met."2 First, under the legal prong of the test, each element of the lesser offense must be a necessary element of the charged offense.3 Second, under the factual prong, "the evidence must support an inference that the lesser crime was 1 State v. Bowerman. 115 Wn.2d 794, 805 , 802 P.2d 116 (1990); RCW 10.61.003, 10.61.006. 2 90 Wn.2d 443, 447 , 584 P.2d 382 (1

2010App. at 218-19 . ¶17 We consider three factors “to gauge whether a tactical decision not to request a lesser included offense instruction is sound or legitimate: (1) The difference in maximum penalties between the greater and lesser offenses; (2) whether the defense’s theory of the case is the same for both the greater and lesser offenses; and (3) the overall risk to the defendant, given the totality of the developments at trial.” State v. Grier, 150 Wn.

2010Hassan, 151 Wash.App. at 218-19 , 211 P.3d 441 . *619 ¶ 17 We consider three factors "to gauge whether a tactical decision not to request a lesser included offense instruction is sound or legitimate: (1) The difference in maximum penalties between the greater and lesser offenses; (2) whether the defense's theory of the case is the same for both the greater and lesser offenses; and (3) the overall risk to the defendant, given the totality of the developments at trial." State v. Grier, 150 Wash.App. 619, 640-41 , 208 P.3d 1221 (2009), review granted, 167 Wash.2d 1017 , 224 P.3d 773 (2010); see a

2005Davis disposed of the lesser included offense issue in a less than clear manner by additionally stating that because of “[t]he myriad of alternative ways in which one may commit second degree felony murder ... it [is] unamenable to a lesser included offense instruction.” 121 Wn.2d at 7 .

2005The parties do not dispute this holding, and it is not at issue here. [6] Davis disposed of the lesser included offense issue in a less than clear manner by additionally stating that because of "[t]he myriad of alternative ways in which one may commit second degree felony murder ... it [is] unamenable to a lesser included offense instruction." 121 Wash.2d at 7 , 846 P.2d 527 .

2010RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wash.App. at 248 , 104 P.3d 670 ; see, e.g., Fowler, 114 Wash.2d at 67 , 785 P.2d 808 . ¶ 47 Under the factual prong of the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence must support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense.

2010RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wash.App. at 248 , 104 P.3d 670 ; see, e.g., Fowler, 114 Wash.2d at 67 , 785 P.2d 808 . ¶ 47 Under the factual prong of the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence must support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense.

2011Id. ("In these circumstances, we can see no legitimate reason to fail to request a lesser included offense instruction.

2010RCW 9.41.270(1); RCW 9A.36.011; Ward, 125 Wash.App. at 248 , 104 P.3d 670 ; see, e.g., Fowler, 114 Wash.2d at 67 , 785 P.2d 808 . ¶ 47 Under the factual prong of the Workman test, to justify a lesser included offense instruction for unlawful display of a weapon, the evidence must support an inference that Crace only displayed the sword and that he had no intent to create reasonable fear or apprehension of bodily injury, i.e., that he committed only the lesser offense.

2023Beck v. Alabama, 447 U.S. 625, 635 , 100 S. Ct. 2382 , 65 L.

2023Beck v. Alabama, 447 U.S. 625, 635 , 100 S. Ct. 2382 , 65 L.

2024As a result of this presumption, a defendant asserting ineffective assistance of counsel cannot show prejudice by arguing the absence of a lesser included offense instruction caused the jury to “convict the defendant despite having reasonable doubts.” Henderson, 182 Wn.2d at 736 (emphasis added).

2024Giving the jury a lesser included offense instruction is “crucial to the integrity” of the system, therefore the failure to do so “undermine[s] confidence in the outcome.” Henderson, 182 Wn.2d at 736 ; Strickland, 466 U.S. at 694 . 16 State v. Bertrand, No. 100953-4 Whitener, J., dissenting I would find Bertrand has satisfied both steps of the Strickland analysis.

2024Nevertheless, Hoskins argues that when there is some evidence to show that the defendant “committed a predicate felony but was not involved in that 10 No. 84939-5-I/11 offense at the time [the] death occurred,” they are entitled to a lesser included offense instruction, citing State v. Lyon, 96 Wn.

2020State v. Lyon, 96 Wn.

2010Mullins contends counsel was ineffective for failing to request an instruction on the lesser included offense. ¶ 23 In order to prevail on an ineffective assistance claim, the defendant must demonstrate "(1) deficient performance, that his attorney's representation fell below the standard of reasonableness, and (2) resulting prejudice that, but for the deficient performance, the result would have been different." State v. Hassan, 151 Wash.App. 209, 216-17 , 211 P.3d 441 (2009). ¶ 24 A defendant is entitled to a lesser included offense instruction "if each of the elements of the lesser offense

2010Mullins contends counsel was ineffective for failing to request an instruction on the lesser included offense. ¶ 23 In order to prevail on an ineffective assistance claim, the defendant must demonstrate "(1) deficient performance, that his attorney's representation fell below the standard of reasonableness, and (2) resulting prejudice that, but for the deficient performance, the result would have been different." State v. Hassan, 151 Wash.App. 209, 216-17 , 211 P.3d 441 (2009). ¶ 24 A defendant is entitled to a lesser included offense instruction "if each of the elements of the lesser offense

2015No. 71632-8-1/3 Instructing juries on lesser included offenses "is crucial to the integrity of our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free."2 This choice creates a risk that the jury will "resolve its doubts in favor of conviction."3 Consequently, courts "err on the side of instructing juries on lesser included offenses."4 Courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.5 We analyze whethe

2015No. 71632-8-1/3 Instructing juries on lesser included offenses "is crucial to the integrity of our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free."2 This choice creates a risk that the jury will "resolve its doubts in favor of conviction."3 Consequently, courts "err on the side of instructing juries on lesser included offenses."4 Courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.5 We analyze whethe

2021App. 56, 64 , 14 P.3d 884 (2000), and the Workman test is used to determine if a lesser included offense instruction is warranted, State v. Fernandez-Medina, 141 Wn.2d 448, 454 , 6 P.3d 1150 (2000) (citing Workman, 90 Wn.2d at 447-48 ). 15 Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563 , 947 P.2d 708 (1997)). 16 Hahn, 174 Wn.2d at 129 (citing State v. Wilson, 125 Wn.2d 212, 218 , 883 P.2d 320 (1994)). 10 No. 80768-4-I/11 included offense of an attempted touching occurred,17 the trial court did not abuse its discretion by refusing to give the lesser included ins

2019State v. Fernandez-Medina, 141 Wn.2d 448, 454 , 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891 , 948 P.2d 381 (1997)) (internal quotation marks omitted).1 1 The parties apply the test for giving a lesser included offense instruction.

2024Because of this, the decision to request a lesser included offense instruction implicates “the wide latitude counsel must have in making tactical decisions.” Strickland, 466 U.S. at 689 .

2024Giving the jury a lesser included offense instruction is “crucial to the integrity” of the system, therefore the failure to do so “undermine[s] confidence in the outcome.” Henderson, 182 Wn.2d at 736 ; Strickland, 466 U.S. at 694 . 16 State v. Bertrand, No. 100953-4 Whitener, J., dissenting I would find Bertrand has satisfied both steps of the Strickland analysis.

2024This court first considered Strickland in the context of counsel’s failure to request a lesser included offense instruction in State v. Grier, 171 Wn.2d 17 , 246 P.3d 1260 (2011).

2023Where a jury found the defendant guilty of second degree murder, the Supreme Court held there was no prejudice for failure to request a lesser-included offense instruction because “assuming, as this court must, that the jury would not have convicted [the defendant] of second degree murder unless the State had met its burden of proof, the availability of a compromise 15 No. 56202-2-II verdict would not have changed the outcome of [the] trial.” State v. Grier, 171 Wn.2d 17, 43-44 , 246 P.3d 1260 (2011).

2026Under the test first articulated in State v. Workman, 90 Wn.2d 443 , 584 P.2d 382 (1978), “a defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong).” State v. Coryell, 197 Wn.2d 397, 400 , 483 P.3d 98 (2021).

2026Under the test first articulated in State v. Workman, 90 Wn.2d 443 , 584 P.2d 382 (1978), “a defendant is entitled to a lesser included offense instruction if (1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong).” State v. Coryell, 197 Wn.2d 397, 400 , 483 P.3d 98 (2021).

2015Harris, like this case, involved attempted murder, which is not an alternative means crime, and the Court considered first degree murder "[a]s charged in this case."45 The Court has also acknowledged the viability of Harris after Berlin in State v. Turner, holding that the trial court properly declined to instruct the jury on fourth degree assault as a lesser included offense of attempted first degree murder.46 More recently, in State v. Boswell, Division II of this court rejected the same argument advanced here by Hubbard: 43 jd, at 548 ("Only when the lesser included offense analysis is appl

2006State v. Lucky, 128 Wn.2d 727, 731 , 912 P.2d 483 (1996). ¶18 “A lesser included offense instruction is proper only if each element of the lesser offense is necessarily included in the charged offense and ‘there is sufficient evidence to support an inference that the lesser crime was committed.’ ” State v. Charles, 126 Wn.2d 353, 355 , 894 P.2d 558 (1995) (quoting State v. Speece, 115 Wn.2d 360, 362 , 798 P.2d 294 (1990)).