basis for a lesser-included-offense instruction in Utah

2025Indeed, “counsel may have perfectly valid tactical reasons to forgo [a lesser-included-offense] instruction and to instead present an all or nothing defense that entails avoiding a lesser- included-offense instruction in the hopes the jury will find the defendant totally innocent of any wrongdoing.” Id. (cleaned up); accord State v. Hull, 2017 UT App 233, ¶ 16 , 414 P.3d 526 .

2020As we have explained, “even when there is a basis for a lesser-included-offense instruction, counsel can reasonably decide not to request one.” Hull, 2017 UT App 233, ¶ 16 .

2025See, e.g., Flynn, 2022 UT App 89, ¶ 18 (“Even when there is a basis for a lesser-included-offense instruction, counsel can reasonably decide not to request one.” (cleaned up)).

2025Indeed, “counsel may have perfectly valid tactical reasons to forgo [a lesser-included-offense] instruction and to instead present an all or nothing defense that entails avoiding a lesser- included-offense instruction in the hopes the jury will find the defendant totally innocent of any wrongdoing.” Id. (cleaned up); accord State v. Hull, 2017 UT App 233, ¶ 16 , 414 P.3d 526 .

2023See State v. Powell, 2020 UT App 63, ¶ 42 , 463 P.3d 705 (“Even when there is a basis for a lesser-included-offense instruction, counsel can reasonably decide not to request one.” (quotation simplified)).

2023See State v. Powell, 2020 UT App 63, ¶ 42 , 463 P.3d 705 (“Even when there is a basis for a lesser-included-offense instruction, counsel can reasonably decide not to request one.” (quotation simplified)).

2020“Depending on the facts of a particular case, counsel may have perfectly valid tactical reasons to forgo the instruction and to instead present an ‘all or nothing’ defense that entails avoiding a lesser-included-offense instruction in the hopes the jury will find the defendant ‘totally innocent of any wrongdoing.’” Id. (cleaned up); see also State v. Binkerd, 2013 UT App 216, ¶ 31 , 310 P.3d 755 (explaining that counsel’s decision not to request a lesser included offense instruction is entitled to considerable deference “in recognition of the fact that counsel is in the best position to gauge

2020“Depending on the facts of a particular case, counsel may have perfectly valid tactical reasons to forgo the instruction and to instead present an ‘all or nothing’ defense that entails avoiding a lesser-included-offense instruction in the hopes the jury will find the defendant ‘totally innocent of any wrongdoing.’” Id. (cleaned up); see also State v. Binkerd, 2013 UT App 216, ¶ 31 , 310 P.3d 755 (explaining that counsel’s decision not to request a lesser included offense instruction is entitled to considerable deference “in recognition of the fact that counsel is in the best position to gauge

2017We assume, for the purposes of this case, that criminal trespass is a lesser included offense of the burglary charged. 1 ¶15 A defendant is entitled to a jury instruction on a lesser included offense, so long as "the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States , 412 U.S. 205 , 208, 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973). 2 Thus, when there is a basis for a lesser-included-offense instruction in the evidence, and the defense requests one be given, the court must give the instruction.

2017We assume, for the purposes of this case, that criminal trespass is a lesser included offense of the burglary charged. 1 ¶15 A defendant is entitled to a jury instruction on a lesser included offense, so long as "the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States , 412 U.S. 205 , 208, 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973). 2 Thus, when there is a basis for a lesser-included-offense instruction in the evidence, and the defense requests one be given, the court must give the instruction.