lesser included offense instruction in New Mexico

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2024See State v. Baca, 1997-NMSC-059, ¶ 30 , 124 N.M. 333 , 950 P.2d 776 (holding that the defendant’s claim of ineffective assistance of counsel failed because the defense counsel may have decided, as a matter of strategy, not to request a lesser included offense instruction); State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (denying a claim of ineffective assistance in which defense counsel did not proffer an instruction for a lesser included offense because the defendant provided no argument that persuasively eliminated counsel’s decision as a “viable strategy”).

2024See State v. Baca, 1997-NMSC-059, ¶ 30 , 124 N.M. 333 , 950 P.2d 776 (holding that the defendant’s claim of ineffective assistance of counsel failed because the defense counsel may have decided, as a matter of strategy, not to request a lesser included offense instruction); State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (denying a claim of ineffective assistance in which defense counsel did not proffer an instruction for a lesser included offense because the defendant provided no argument that persuasively eliminated counsel’s decision as a “viable strategy”).

2023Having considered all the relevant materials, we reverse Defendant’s four reckless driving-based convictions, vacate his sentence for driving under a foreign license during suspension or revocation, and remand for resentencing on the latter conviction and for retrial on his convictions for vehicular homicide and great bodily harm by vehicle. {3} The State’s amended memorandum in opposition concedes that Defendant preserved his request for a lesser included offense instruction on careless driving as a step-down charge to the reckless driving offenses. [Amended MIO 6] The State pivots to arguing

2023Having considered all the relevant materials, we reverse Defendant’s four reckless driving-based convictions, vacate his sentence for driving under a foreign license during suspension or revocation, and remand for resentencing on the latter conviction and for retrial on his convictions for vehicular homicide and great bodily harm by vehicle. {3} The State’s amended memorandum in opposition concedes that Defendant preserved his request for a lesser included offense instruction on careless driving as a step-down charge to the reckless driving offenses. [Amended MIO 6] The State pivots to arguing

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2024See State v. Baca, 1997-NMSC-059, ¶ 30 , 124 N.M. 333 , 950 P.2d 776 (holding that the defendant’s claim of ineffective assistance of counsel failed because the defense counsel may have decided, as a matter of strategy, not to request a lesser included offense instruction); State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (denying a claim of ineffective assistance in which defense counsel did not proffer an instruction for a lesser included offense because the defendant provided no argument that persuasively eliminated counsel’s decision as a “viable strategy”).

2024See State v. Baca, 1997-NMSC-059, ¶ 30 , 124 N.M. 333 , 950 P.2d 776 (holding that the defendant’s claim of ineffective assistance of counsel failed because the defense counsel may have decided, as a matter of strategy, not to request a lesser included offense instruction); State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (denying a claim of ineffective assistance in which defense counsel did not proffer an instruction for a lesser included offense because the defendant provided no argument that persuasively eliminated counsel’s decision as a “viable strategy”).

2025See, e.g., State v. Contreras, 2007-NMCA-119, ¶ 23 , 142 N.M. 518 , 167 P.3d 966 (affirming the district court’s refusal to grant the defendant’s request for a lesser included offense instruction 1It appears there are two substantially similar tests this Court uses to assess whether a party is entitled to a lesser included offense instruction.

2025See, e.g., State v. Contreras, 2007-NMCA-119, ¶ 23 , 142 N.M. 518 , 167 P.3d 966 (affirming the district court’s refusal to grant the defendant’s request for a lesser included offense instruction 1It appears there are two substantially similar tests this Court uses to assess whether a party is entitled to a lesser included offense instruction.

2024See State v. Baca, 1997-NMSC-059, ¶ 30 , 124 N.M. 333 , 950 P.2d 776 (holding that the defendant’s claim of ineffective assistance of counsel failed because the defense counsel may have decided, as a matter of strategy, not to request a lesser included offense instruction); State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (denying a claim of ineffective assistance in which defense counsel did not proffer an instruction for a lesser included offense because the defendant provided no argument that persuasively eliminated counsel’s decision as a “viable strategy”).

2023See, e.g., State v. Jensen, 2005-NMCA-113, ¶¶ 12-16 , 138 N.M. 254 , 118 P.3d 762 (rejecting a claim of ineffective assistance of counsel based on a failure to submit a lesser-included offense instruction, where the record contained “no indication that Defendant’s counsel acted in derogation of his client’s wishes,” and where the defendant offered “no persuasive argument that eliminates any conceivable and viable strategy or tactic”).

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2019See State v. Juan, 2010-NMSC-041, ¶ 23 , 4The State cites a substantially similar test for determining whether a defendant’s request for a lesser included offense instruction should be granted.

2019See State v. Jernigan, 2006-NMSC-003, ¶ 21 , 139 N.M. 1 , 127 P.3d 537 (“Failure to instruct the jury on a lesser included offense of a charged offense is reversible error if: (1) the lesser 148 N.M. 747 , 242 P.3d 314 (applying the cognate approach to a defendant’s request for a lesser included offense instruction).

2002See State v. McGee, 2002-NMCA-090 , 132 N.M. 537 , 51 P.3d 1191, 1195 (Ct.App.2002); State v. Santillanes, 2001-NMSC-018, ¶29 , 130 N.M. 464 , 27 P.3d 456 ; State v. Meadors, 121 N.M. 38, 42 , 908 P.2d 731, 735 (1995); see also Schmuck v. United States, 489 U.S. 705, 717-18 , 109 S.Ct. 1443 , 103 L.Ed.2d 734 (1989) (“[t]he defendant may not have constitutionally sufficient notice to support a lesser included offense instruction requested by the prosecutor if the elements of that lesser offense are not part of the indictment.”).

2002See State v. McGee, 2002-NMCA-090 , 132 N.M. 537 , 51 P.3d 1191, 1195 (Ct.App.2002); State v. Santillanes, 2001-NMSC-018, ¶29 , 130 N.M. 464 , 27 P.3d 456 ; State v. Meadors, 121 N.M. 38, 42 , 908 P.2d 731, 735 (1995); see also Schmuck v. United States, 489 U.S. 705, 717-18 , 109 S.Ct. 1443 , 103 L.Ed.2d 734 (1989) (“[t]he defendant may not have constitutionally sufficient notice to support a lesser included offense instruction requested by the prosecutor if the elements of that lesser offense are not part of the indictment.”).

2024See State v. Andrade, 1998-NMCA-031, ¶ 11 , 124 N.M. 690 , 954 P.2d 755 . {5} A defendant is entitled to a lesser included offense instruction when (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense . . .; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

2024See State v. Andrade, 1998-NMCA-031, ¶ 11 , 124 N.M. 690 , 954 P.2d 755 . {5} A defendant is entitled to a lesser included offense instruction when (1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense . . .; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2025“We review the propriety of a district court’s refusal to instruct on a lesser[ ]included offense under a de novo standard.” State v. Munoz, 2004-NMCA-103, ¶ 10 , 136 N.M. 235 , 96 P.3d 796 . “[W]e . . . review the evidence presented in the light most favorable to the giving of the requested instruction.” State v. Henley, 2010-NMSC- 039, ¶ 25, 148 N.M. 359 , 237 P.3d 103 (internal quotation marks and citation omitted). {3} When a defendant requests a lesser included offense instruction, we use the cognate approach endorsed by our Supreme Court in State v. Meadors, 1995-NMSC- 073, 121 N.M. 38 ,

2019That prong requires Defendant to show that “the elements that distinguish 16 the lesser and greater offenses are sufficiently in dispute such that a jury rationally 17 could acquit on the greater offense and convict on the lesser.” Meadors, 1995- 18 NMSC-073, ¶ 12; see also State v. Hill, 2001-NMCA-094, ¶ 17 , 131 N.M. 195 , 34 19 P.3d 139 (stating that to be entitled to a lesser-included offense instruction, a 20 defendant must show that “there is a rational view of the evidence that would lead 21 1 the jury to conclude beyond a reasonable doubt that [the d]efendant committed the 2 lesser inc

2019That prong requires Defendant to show that “the elements that distinguish 16 the lesser and greater offenses are sufficiently in dispute such that a jury rationally 17 could acquit on the greater offense and convict on the lesser.” Meadors, 1995- 18 NMSC-073, ¶ 12; see also State v. Hill, 2001-NMCA-094, ¶ 17 , 131 N.M. 195 , 34 19 P.3d 139 (stating that to be entitled to a lesser-included offense instruction, a 20 defendant must show that “there is a rational view of the evidence that would lead 21 1 the jury to conclude beyond a reasonable doubt that [the d]efendant committed the 2 lesser inc

2023Having considered all the relevant materials, we reverse Defendant’s four reckless driving-based convictions, vacate his sentence for driving under a foreign license during suspension or revocation, and remand for resentencing on the latter conviction and for retrial on his convictions for vehicular homicide and great bodily harm by vehicle. {3} The State’s amended memorandum in opposition concedes that Defendant preserved his request for a lesser included offense instruction on careless driving as a step-down charge to the reckless driving offenses. [Amended MIO 6] The State pivots to arguing

2023Having considered all the relevant materials, we reverse Defendant’s four reckless driving-based convictions, vacate his sentence for driving under a foreign license during suspension or revocation, and remand for resentencing on the latter conviction and for retrial on his convictions for vehicular homicide and great bodily harm by vehicle. {3} The State’s amended memorandum in opposition concedes that Defendant preserved his request for a lesser included offense instruction on careless driving as a step-down charge to the reckless driving offenses. [Amended MIO 6] The State pivots to arguing

2023See Gonzales, 11 2013-NMSC-016, ¶ 30 .

2023See Gonzales, 2013-NMSC-016, ¶ 30 .

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See id. ¶ 11 (discussing the conditions that must be met to grant a defendant’s request for a lesser included offense instruction); see also State v. Diaz, 1995-NMCA-137 , ¶ 8, 121 N.M. 28 , 908 P.2d 258 (conditioning reversal based on the district court’s failure to give a lesser included offense instruction on the defendant’s tendering of an appropriate instruction). {16} As the State correctly observes in its answer brief, “New Mexico courts have explained that the failure to request a lesser included offense instruction is not fundamental error” and “[t]he decision . . . to request a lesse

2023See generally Roybal, 2002-NMSC-027, ¶ 19 (“When an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.

2019“When an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 .

2019See id. (“We do not read Boeglin as holding that [a] defendant has a right to waive a lesser included offense instruction but rather that he has the right to have a lesser included offense instruction given where the evidence supports it.”).

1993Archuleta, 108 N.M. at 398 , 772 P.2d at 1321 ; Edwards, 97 N.M. at 146 , 637 P.2d at 577 .

2019To be entitled to a lesser-included offense instruction, a criminal 16 defendant must satisfy three requirements; he must show that: “(1) the defendant 17 could not have committed the greater offense in the manner described in the 18 charging document without also committing the lesser offense, and therefore notice 19 of the greater offense necessarily incorporates notice of the lesser offense; (2) the 20 evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; 20 1 and (3) the elements that distinguish the lesser and greater offenses are sufficiently 2 in dispute

2016See 2000-NMCA-085 , ¶¶ 14-20, 129 N.M. 547 , 10 P.3d 871 3 (recognizing that State v. Meadors, 1995-NMSC-073 , ¶ 12, 121 N.M. 38 , 908 P.2d 4 731 provides the test for determining when a court should grant the State’s request 5 for an instruction on a lesser-included offense, and concluding that “a defendant’s 6 right to a lesser-included offense instruction is effectively greater than the State’s”). 7 The district court agreed with Defendant and granted her request to give the jury a 8 step-down instruction from permitting child abuse to child abandonment.

2018Accordingly, the Garrett Court declined to strictly apply the same-elements test articulated in Blockburger v. United States , 284 U.S. 299 , 304, 52 S.Ct. 180 , 76 L.Ed. 306 (1932), or the lesser-included-offense framework articulated in Brown , 432 U.S. at 167 -69 , 97 S.Ct. 2221 , to the *39 double jeopardy issue presented in that case.

2018Accordingly, the Garrett Court declined to strictly apply the same-elements test articulated in Blockburger v. United States , 284 U.S. 299 , 304, 52 S.Ct. 180 , 76 L.Ed. 306 (1932), or the lesser-included-offense framework articulated in Brown , 432 U.S. at 167 -69 , 97 S.Ct. 2221 , to the *39 double jeopardy issue presented in that case.

2018Garrett , 471 U.S. at 779 , 787-90 , 105 S.Ct. 2407 . {9} At issue in Garrett was whether the defendant's earlier conviction for narcotics importation could be used as a predicate offense in a subsequent CCE prosecution without offending his right against double jeopardy. 471 U.S. at 775 -77 , 105 S.Ct. 2407 .

2018Garrett , 471 U.S. at 779 , 787-90 , 105 S.Ct. 2407 . {9} At issue in Garrett was whether the defendant's earlier conviction for narcotics importation could be used as a predicate offense in a subsequent CCE prosecution without offending his right against double jeopardy. 471 U.S. at 775 -77 , 105 S.Ct. 2407 .

2012In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15 , 868 P.2d 656, 660 (Ct. App. 1993).

2012In State v. Wilson, the Court held that a lesser-included offense instruction was properly denied where the defendant sought to show that the jury could have believed portions of testimony by both the victim and defendant and rejected other portions. 117 N.M. 11, 15 , 868 P.2d 656, 660 (Ct. App. 1993).