lesser offense instruction in Colorado

2025But “the mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge.” People v. Ramirez, 18 P.3d 822, 827 (Colo. App. 2000). ¶ 62 The theory behind allowing a lesser offense instruction is that such an instruction “promotes . . . fairer verdicts” because it “helps ensure that a jury does not convict a defendant of a greater offense than the one actually committed merely because the greater offense is the only crime charged and the jury is persuaded that some crime was committed.” Naranj

2006Beaudoin v. People, 627 P.2d 739, 740 (Colo.1981); see People v. Hall, 59 P.3d 298, 300 (Colo.App.2002)(no lesser offense instruction needed "if the element that distinguishes the greater from the lesser offense is uncontested"); People v. Ramirez, 18 P.3d 822, 827 (Colo.App.2000)("[T}he mere chance that a jury may reject uncontroverted testimony and convict on the lesser charge does not require the trial court to instruct the jury on the lesser charge.").

2012Because reckless manslaughter was inconsistent with defendant's theory of defense, we reject this contention. 114 "'A trial court is not required to give a lesser offense instruction requested by a defendant unless there is some evidence tending to establish the lesser offense and a rational basis upon which the jury may acquit the defendant of the greater offense but con-viet him or her of the lesser" People v. Chaves, 190 P.3d 760, 769-70 (Colo.App.2007) (quoting People v. Gordon, 32 P.3d 575, 578 (Colo.App.2001)).

2012"No such rational basis exists where the lesser offense instruction is inconsistent with the defendant's theory of defense." Id. at 77O. { 15 At trial, defendant's theory of defense was that he did not cause the victim's death.

2024See Wade, ¶ 16 (“When the defense makes a tactical decision not to submit an alternative defense instruction, a trial court’s failure to sua sponte offer the instruction does not constitute error, much less plain error.”); cf. Arko v. People, 183 P.3d 555, 558 (Colo. 2008) (“[T]he decision to request a lesser offense instruction is strategic and tactical in nature, and is therefore reserved for defense counsel.”).

2016See Medrano-Bustamante, ¶ 89 (because the defendant specifically requested and received an instruction on a lesser non-included offense, he invited error asserted on appeal that the jury's verdict on that offense was inconsistent with its verdicts on other charged offenses); People v. Gross, 2012 CO 60 , ¶ 11, 287 P.3d 105 (applying invited error doctrine where defense counsel argued affirmatively for an instruction over the prosecution's objection). ¶ 15 Citing Arko v. People, 183 P.3d 555 (Colo.2008), defendant argues that he did not waive his right to contest the sufficiency of the evidence

2017As the result of pre-Criminal Code and pre-Rules case law, the prosecution is entitled to present the jury with only a lesser included offense, or its equivalent, see People v. Garcia, 940 P.2d 357 (Colo. 1997), as modified on denial of reh’g (Aug. 4, 1997); People v. Barger, 191 Colo. 152 , 550 P.2d 1281 (1976); People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974), while a criminal defendant is entitled to a lesser offense instruction, whether included in the charged offense or not, see People v. Rivera, 186 Colo. 24 , 525 P.2d 431, 434 (1974), as long as the evidence at trial presents a ratio

2017As the result of pre-Criminal Code and pre-Rules case law, the prosecution is entitled to present the jury with only a lesser included offense, or its equivalent, see People v. Garcia, 940 P.2d 357 (Colo. 1997), as modified on denial of reh’g (Aug. 4, 1997); People v. Barger, 550 P.2d 1281 (Colo. 1976); People v. Cooke, 525 P.2d 426 (Colo. 1974), while a criminal defendant is entitled to a lesser offense instruction, whether included in the charged offense or not, see People v. Rivera, 525 P.2d 431, 434 (Colo. 1974), as long as the evidence at trial presents a rational basis to acquit of the g

2017See People v. Garcia, 940 P.2d 357, 361-64 (Colo. 1997) (characterizing our approach to the prosecution’s entitlement to present the jury .with lesser offenses as closely resembling the “indictment/pleading theory” for determining whether offenses are included). 3 If the prosecution has not requested a lesser offense instruction to which it is entitled, however, it is for the defendant to elect—and in the absence of a request by the defendant, it may reasonably be assumed that he has elected—to take his chance on an outright acquittal or conviction of the principal charge rather than to provid

2017As the result of pre-Criminal Code and pre-Rules case law, the prosecution is entitled to present the jury with only a lesser included offense, or its equivalent, see People v. Garcia, 940 P.2d 357 (Colo. 1997), as modified on denial of reh’g (Aug. 4, 1997); People v. Barger, 550 P.2d 1281 (Colo. 1976); People v. Cooke, 525 P.2d 426 (Colo. 1974), while a criminal defendant is entitled to a lesser offense instruction, whether included in the charged offense or not, see People v. Rivera, 525 P.2d 431, 434 (Colo. 1974), as long as the evidence at trial presents a rational basis to acquit of the g

2017Because a trial court may only instruct the jury on a lesser -non-included offense if there is some evidence in the record to rationally .support conviction for that offense, Aragon, 653 P.2d at 720 n.5, a defendant who requests instruction on such an offense necessarily represents to the trial court that the evidence rationally supports conviction for the offense, a position that would be wholly contradicted by the defendant’s later argument on appeal that the evidence supporting conviction for this offense is insufficient, see Bennett, 515 P.2d at 469.

2017See Missouri v. Hunter, 459 U.S. 359, 366-69 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983); Lewis v. People, 261 P.3d 480, 481-82 (Colo. 2011).

2017See Missouri v. Hunter, 459 U.S. 359 , 366–69 (1983); People v. Lewis, 261 P.3d 480 , 481–82 (Colo. 2011).

2017See Mata-Medina, 71 P.3d at 979 (citing People v. Shaw, 646 P.2d 375, 379 (Colo. 1982), and Crawford v. People, 12 Colo. 290 , 20 P. 769 , 770 (1889)).

2017While the allowance of lesser non-included offense instructions by defendants has been explicitly criticized by the Supreme Court as hardly leading to reliable results, see Hopkins v. Reeves, 524 U.S. 88, 99 , 118 S.Ct. 1895 , 141 L.Ed.2d 76 (1998), and clearly represents a minority position, see generally Ronald G.

2017While the allowance of lesser non-included offense instructions by defendants has been explicitly criticized by the Supreme Court as hardly leading to reliable results, see Hopkins v. Reeves, 524 U.S. 88, 99 (1998), and clearly represents a minority position, see generally Ronald G.

2017See Mata-Medina, 71 P.3d at 979 (citing People v. Shaw, 646 P.2d 375, 379 (Colo. 1982), and Crawford v. People, 12 Colo. 290 , 20 P. 769 , 770 (1889)).

2017People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985). ¶10 Unless either the prosecution or the defense requests a lesser-included-offense instruction, the court is therefore not obligated to give one.

2017Co., 957 P.2d 1380, 1385 (Colo. 1998) (holding that invited error barred the defendant from challenging on appeal the trial court’s failure to give a particular instruction where defense counsel actively participated in the jury instruction conference, was notified by the trial court of its concerns with the defense’s proposed version of that instruction, and expressly declined to redraft the instruction). ¶34 Whether or not a meaningful distinction could be made, for some purpose, between challenging a lesser offense instruction as unsupported by the evidence and challenging a guilty verdict

2017See Missouri v. Hunter, 459 U.S. 359, 366-69 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983); Lewis v. People, 261 P.3d 480, 481-82 (Colo. 2011).

2017See Missouri v. Hunter, 459 U.S. 359 , 366–69 (1983); People v. Lewis, 261 P.3d 480 , 481–82 (Colo. 2011).

2017See Mata-Medina, 71 P.3d at 979 (citing People v. Shaw, 646 P.2d 375, 379 (Colo. 1982), and Crawford v. People, 12 Colo. 290 , 20 P. 769 , 770 (1889)).

2012See id. (reviewing de novo the trial court's legally erroneous determination that prosecutorial discretion precluded a lesser offense instruction); see also Arnt, 474 F.3d at 1163 (whether the elements of the lesser offense are a subset of the elements of the charged offense is a legal question subject to de novo review).

2012See id. (reviewing de novo the trial court's legally erroneous determination that prosecutorial discretion precluded a lesser offense instruction); see also Arnt, 474 F.3d at 1163 (whether the elements of the lesser offense are a subset of the elements of the charged offense is a legal question subject to de novo review).

2012Because reckless manslaughter was inconsistent with defendant's theory of defense, we reject this contention. 114 "'A trial court is not required to give a lesser offense instruction requested by a defendant unless there is some evidence tending to establish the lesser offense and a rational basis upon which the jury may acquit the defendant of the greater offense but con-viet him or her of the lesser" People v. Chaves, 190 P.3d 760, 769-70 (Colo.App.2007) (quoting People v. Gordon, 32 P.3d 575, 578 (Colo.App.2001)).

2008People v. Bustos, 725 P.2d 1174, 1175-76 (Colo.App.1986) (defendant was not entitled to a lesser non-included offense instruction that was inconsistent with his theory of defense that he did not know the substance in his possession was cocaine); cf. People v. Villarreal, 131 P.3d 1119, 1125 (Colo.App.2005) (defendant was not entitled to instruction on defense of voluntary intoxication where it was inconsistent with her theory of defense that she was not the person who attacked the victim).

2008See United States v. Mays, 466 F.3d 335, 342 (5th Cir.2006) (characterizing the decision not to request a lesser offense jury instruction as "a strategic choice"); Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (characterizing the decision not to request lesser offense jury instructions as "a permissible exercise of trial strategy"); Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.1997) (characterizing the decision not to request a lesser offense jury instruction as "reasonable trial strategy"); State v. Sheppard, 270 Mont. 122 , 890 P.2d 754, 757 (1995) (characterizing the decision not to

2008See United States v. Mays, 466 F.3d 335, 342 (5th Cir.2006) (characterizing the decision not to request a lesser offense jury instruction as "a strategic choice"); Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (characterizing the decision not to request lesser offense jury instructions as "a permissible exercise of trial strategy"); Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.1997) (characterizing the decision not to request a lesser offense jury instruction as "reasonable trial strategy"); State v. Sheppard, 270 Mont. 122 , 890 P.2d 754, 757 (1995) (characterizing the decision not to

2008"A trial court is not required to give a lesser offense instruction requested by a defendant unless there is some evidence tending to establish the lesser offense and a rational basis upon which the jury may acquit *770 the defendant of the greater offense but con-viet him or her of the lesser." People v. Gordon, 32 P.3d 575, 578 (Colo.App.2001); see § 18-1-408(6), C.R.S.2007; People v. Nhan Dao Van, 681 P.2d 932, 934-35 (Colo.1984).

2008See United States v. Mays, 466 F.3d 335, 342 (5th Cir.2006) (characterizing the decision not to request a lesser offense jury instruction as "a strategic choice"); Tinsley v. Million, 399 F.3d 796, 808 (6th Cir.2005) (characterizing the decision not to request lesser offense jury instructions as "a permissible exercise of trial strategy"); Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.1997) (characterizing the decision not to request a lesser offense jury instruction as "reasonable trial strategy'); State v. Sheppard, 2740 Mont. 122 , 890 P.2d 754, 757 (1995) (characterizing the decision not to

2008See United States v. Mays, 466 F.3d 335, 342 (5th Cir.2006) (characterizing the decision not to request a lesser offense jury instruction as "a strategic choice"); Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005) (characterizing the decision not to request lesser offense jury instructions as "a permissible exercise of trial strategy"); Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.1997) (characterizing the decision not to request a lesser offense jury instruction as "reasonable trial strategy"); State v. Sheppard, 270 Mont. 122 , 890 P.2d 754, 757 (1995) (characterizing the decision not to