lesser included offense instruction in Utah

2026While Allen makes some good points, we ultimately discern no reversible error in the trial court’s decision. ¶21 Under Utah law, when a defendant asks for a lesser- included-offense instruction, the court is required to give it if two requirements are met: “(i) the statutory elements of greater and lesser included offenses overlap to some degree, and (ii) the 20231109-CA 9 2026 UT App 47 State v. Allen evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” State v. Hansen, 734 P.2d 421, 424 (Utah 1986); acco

2021A narrower standard is applied when the prosecutor requests a lesser- included-offense instruction. “[W]hen the prosecution seeks instruction on a proposed lesser included offense, both the legal elements and the actual evidence or inferences needed to demonstrate those elements must necessarily be included within the original charged offense.” State v. Baker, 671 P.2d 152, 156 (Utah 1983).

2026See State v. Reece, 2015 UT 45, ¶ 32 , 349 P.3d 712 (holding that “denying a lesser-included-offense instruction is an ordinary trial error to which harmless error analysis applies”).

2026See State v. Reece, 2015 UT 45, ¶ 32 , 349 P.3d 712 (holding that “denying a lesser-included-offense instruction is an ordinary trial error to which harmless error analysis applies”).

2025In response, the State argues that Francis was not entitled to the proposed instruction because the “evidence presented at trial unambiguously showed Francis occupied a position of special trust in relation to Alice, whether as her uncle, a cohabitant of her parents, or in some other capacity that allowed him ‘to exercise undue influence over’ Alice.” (Quoting id. § 76-5- 404.1(1)(a)(v)(W).) We agree with Francis. ¶98 Under Utah Code section 76-1-402(4), a defendant is entitled to a lesser included offense instruction when “there is a rational basis for a verdict acquitting the defendant of th

2025In response, the State argues that Francis was not entitled to the proposed instruction because the “evidence presented at trial unambiguously showed Francis occupied a position of special trust in relation to Alice, whether as her uncle, a cohabitant of her parents, or in some other capacity that allowed him ‘to exercise undue influence over’ Alice.” (Quoting id. § 76-5- 404.1(1)(a)(v)(W).) We agree with Francis. ¶98 Under Utah Code section 76-1-402(4), a defendant is entitled to a lesser included offense instruction when “there is a rational basis for a verdict acquitting the defendant of th

2013"In addition, when the defense requests a jury instruction on a lesser included offense, the requirements for inclusion of the instruction, 'should be liberally construed." Id. (quoting State v. Hansen, 734 P.2d 421, 424 (Utah 1986)). 15 "A defendant's request for a lesser included offense instruction is evaluated under the evidence-based standard set out in [Utah Code] section 76-1-402(4)," Powell, 2007 UT 9, ¶ 24 , 154 P.3d 788 , which states: "The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the

2013“In addition, when the defense requests a jury instruction on a lesser included offense, the requirements for inclusion of the instruction, ‘should be liberally construed.’” Id. (quoting State v. Hansen, 734 P.2d 421, 424 (Utah 1986)). ¶5 “A defendant’s request for a lesser included offense instruction is evaluated under the evidence‐based standard set out in [Utah Code] section 76‐1‐402(4),” Powell, 2007 UT 9, ¶ 24 , which states: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of

2026While Allen makes some good points, we ultimately discern no reversible error in the trial court’s decision. ¶21 Under Utah law, when a defendant asks for a lesser- included-offense instruction, the court is required to give it if two requirements are met: “(i) the statutory elements of greater and lesser included offenses overlap to some degree, and (ii) the 20231109-CA 9 2026 UT App 47 State v. Allen evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” State v. Hansen, 734 P.2d 421, 424 (Utah 1986); acco

2013“In addition, when the defense requests a jury instruction on a lesser included offense, the requirements for inclusion of the instruction, ‘should be liberally construed.’” Id. (quoting State v. Hansen, 734 P.2d 421, 424 (Utah 1986)). ¶5 “A defendant’s request for a lesser included offense instruction is evaluated under the evidence‐based standard set out in [Utah Code] section 76‐1‐402(4),” Powell, 2007 UT 9, ¶ 24 , which states: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of

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 .

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 .

2013The Jeffs decision does not undereut the propriety of this result. 5 Cf. State v. Howell, 649 P.2d 91, 95 (Utah 1982) ("[Wle hold that a trial court may properly give a lesser included offense instruction, even over a defendant's objection, if there is clearly no risk that the defendant will be prejudiced by lack of notice and preparation so as to deprive him of a full and fair opportunity to defend himself."). 129 Defendant also argues that "[if [Defendant]'s acts were only 'reckless, without intent that the murder ceeur, then he is not an accomplice to the underlying crime of murder" because

2013See State v. Howell, 649 P.2d 91, 95 (Utah 1982) ("[WJe hold that a trial court may properly give a lesser included offense instruction, even over a defendant's objection, if there is clearly no risk that the defendant will be prejudiced by lack of notice and preparation so as to deprive him of a full and fair opportunity to defend himself."). 7 III.

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2026But it concluded that Johnson failed to establish the prejudice prong because the unchallenged first part of the lesser- included-offense instruction required the jury to eliminate the option of the greater offense of murder before it could convict for the lesser included offense. ¶27 The prejudice prong requires the petitioner to establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

2020“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.” State v. Hull, 2017 UT App 233, ¶ 15 , 414 P.3d 526 (cleaned up). 20180109-CA 16 2020 UT App 63 State v. Powell ¶42 But when an appellant challenges trial counsel’s failure to request a lesser included offense instruction as constitutionally ineffective, the appellant runs headlong into the “strong presumption” that, under the circumstances, the failure to request the lesser included offense

2025“A trial court’s refusal to grant a lesser included offense instruction is a question of law, which we review for correctness.” State v. Reece, 2015 UT 45, ¶ 16 , 349 P.3d 712 (quotation simplified); accord State v. Florez, 2020 UT App 76, ¶ 15 , 465 P.3d 307 . ¶49 Fourth, Francis argues that the court erred when it declined to provide his requested unanimity instructions.

2025“A trial court’s refusal to grant a lesser included offense instruction is a question of law, which we review for correctness.” State v. Reece, 2015 UT 45, ¶ 16 , 349 P.3d 712 (quotation simplified); accord State v. Florez, 2020 UT App 76, ¶ 15 , 465 P.3d 307 . ¶49 Fourth, Francis argues that the court erred when it declined to provide his requested unanimity instructions.

2021We’ve heard ample testimony that there has been force . . . .” The court denied Nelson’s request for the lesser-included-offense instruction, noting that the “very limited,” “clear,” and unambiguous testimony “presented at trial” did not allow for the lesser included instruction. ¶20 “[I]t has long been recognized that [a lesser-included- offense instruction] can . . . be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Beck v. Alabama, 447 U.S. 625, 633 (1980).

1988I am persuaded that sufficient "good cause" for review is established by (1) the fact that the law regarding Andrews' right to a lesser included offense instruction at his trial has been in an unsettled and evolutionary state during at least part of the period between his conviction and this petition, see Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980); State v. Baker, 671 P.2d 152 (Utah 1983); State v. Norton, 675 P.2d 577 (Utah 1983); State v. Hansen, 734 P.2d 421 (Utah 1986), and (2) the strong possibility that Andrews was entitled to a lesser included offense instruc

2026See State v. Devan, 2024 UT App 193, ¶ 42 , 562 P.3d 1233 (explaining that “counsel may have 3.

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2020See State v. Hall, 946 P.2d 712 , 723–24 (Utah Ct. App. 1997) (concluding that counsel did not perform deficiently by failing to request a lesser included offense instruction that “would have been inconsistent” with the defense theory argued at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 20180109-CA 17 2020 UT App 63 State v. Powell 1995); see also State v. Campos, 2013 UT App 213, ¶ 34 , 309 P.3d 1160 (“Any election between inconsistent defenses is a legitimate exercise of trial strategy rather than ineffective assistance of counsel.” (cleaned up)). ¶44 Here, even assumi

2020See State v. Hall, 946 P.2d 712 , 723–24 (Utah Ct. App. 1997) (concluding that counsel did not perform deficiently by failing to request a lesser included offense instruction that “would have been inconsistent” with the defense theory argued at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 20180109-CA 17 2020 UT App 63 State v. Powell 1995); see also State v. Campos, 2013 UT App 213, ¶ 34 , 309 P.3d 1160 (“Any election between inconsistent defenses is a legitimate exercise of trial strategy rather than ineffective assistance of counsel.” (cleaned up)). ¶44 Here, even assumi

2020See State v. Hall, 946 P.2d 712 , 723–24 (Utah Ct. App. 1997) (concluding that counsel did not perform deficiently by failing to request a lesser included offense instruction that “would have been inconsistent” with the defense theory argued at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 20180109-CA 17 2020 UT App 63 State v. Powell 1995); see also State v. Campos, 2013 UT App 213, ¶ 34 , 309 P.3d 1160 (“Any election between inconsistent defenses is a legitimate exercise of trial strategy rather than ineffective assistance of counsel.” (cleaned up)). ¶44 Here, even assumi

2020See State v. Hall, 946 P.2d 712 , 723–24 (Utah Ct. App. 1997) (concluding that counsel did not perform deficiently by failing to request a lesser included offense instruction that “would have been inconsistent” with the defense theory argued at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 20180109-CA 17 2020 UT App 63 State v. Powell 1995); see also State v. Campos, 2013 UT App 213, ¶ 34 , 309 P.3d 1160 (“Any election between inconsistent defenses is a legitimate exercise of trial strategy rather than ineffective assistance of counsel.” (cleaned up)). ¶44 Here, even assumi

2018See State v. Oldroyd , 685 P.2d 551 , 555-56 (Utah 1984) (explaining that a defendant is entitled to a lesser included offense instruction where the evidence offered in the case places an element in dispute such that, based on that dispute, the jury could find a defendant guilty of a lesser offense and not of the greater); State v. Baker , 671 P.2d 152 , 157 (Utah 1983) ("Thus, where proof of an element of the crime is in dispute , the availability of the 'third option' ... gives the defendant the benefit of the reasonable doubt standard." (emphasis added) ); see also Keeble v. United States ,

2017Oldroyd, 685 P.2d at 554-56 ; see also State v. Campos, 2013 UT App 213, ¶ 78 , 309 P.3d 1160 (reviewing the denial of a request for a lesser included offense instruction and stating that Oldroyd held that “threatening with a dangerous weapon qualifies as a lesser included offense of aggravated assault” (citing Oldroyd, 685 P.2d at 554 )).

2018See State v. Oldroyd , 685 P.2d 551 , 555-56 (Utah 1984) (explaining that a defendant is entitled to a lesser included offense instruction where the evidence offered in the case places an element in dispute such that, based on that dispute, the jury could find a defendant guilty of a lesser offense and not of the greater); State v. Baker , 671 P.2d 152 , 157 (Utah 1983) ("Thus, where proof of an element of the crime is in dispute , the availability of the 'third option' ... gives the defendant the benefit of the reasonable doubt standard." (emphasis added) ); see also Keeble v. United States ,

2018See State v. Oldroyd , 685 P.2d 551 , 555-56 (Utah 1984) (explaining that a defendant is entitled to a lesser included offense instruction where the evidence offered in the case places an element in dispute such that, based on that dispute, the jury could find a defendant guilty of a lesser offense and not of the greater); State v. Baker , 671 P.2d 152 , 157 (Utah 1983) ("Thus, where proof of an element of the crime is in dispute , the availability of the 'third option' ... gives the defendant the benefit of the reasonable doubt standard." (emphasis added) ); see also Keeble v. United States ,

2012Upon a defendant's request, a lesser included offense instruction "must be given if (i) the statutory elements of greater and lesser included offenses overlap ... and (ii) the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." State v. Spilters, 2007 UT 13, ¶ 12 , 152 P.8d 315 (omission in original) (internal quotation marks omitted); see also State v. Baker, 671 P.2d 152, 157-59 (Utah 1983) (adopting an "evidence-based" standard for instructing on lesser included offenses).

2012We therefore proceed to the second prong of the applicable test and examine whether "there is evidence to justify acquittal of the greater offense and conviction of the lesser offense." See id. 115 ; cf. Spillers, 2007 UT 13, ¶ 12 , 152 P.3d 315 ("Because neither party disputes the first prong of the lesser included offense test-that the statutory elements of manslaughter and murder overlap-the only issue before this court is whether there is a rational basis to acquit Defendant of murder and convict him of manslaughter."). 112 In this case, the charged offenses were two counts of aggravated r

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2018Lesser Included Offense ¶49 Salgado contends that the trial court improperly denied her request "to instruct on minimum-speed violation as a lesser-included offense of DUI." "A defendant's request for a lesser included offense instruction is evaluated under the evidence-based standard set out in Utah Code section 76-1-402(4)." State v. Campbell , 2013 UT App 23 , ¶ 5, 295 P.3d 722 (quotation simplified).

2018Lesser Included Offense ¶49 Salgado contends that the trial court improperly denied her request "to instruct on minimum-speed violation as a lesser-included offense of DUI." "A defendant's request for a lesser included offense instruction is evaluated under the evidence-based standard set out in Utah Code section 76-1-402(4)." State v. Campbell , 2013 UT App 23 , ¶ 5, 295 P.3d 722 (quotation simplified).

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2024See, e.g., State v. Barnes, 2023 UT App 148, ¶ 46 , 542 P.3d 108 (holding that defense counsel did not perform deficiently for not requesting a lesser- 20221127-CA 17 2024 UT App 193 State v. Devan included offense instruction and instead pursuing an acquittal); Hull, 2017 UT App 233, ¶ 20 (holding that “it was objectively reasonable for trial counsel to forgo” a lesser-included offense instruction and to “instead present an ‘all or nothing’ defense”); State v. Feldmiller, 2013 UT App 275 , ¶¶ 3–4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently for not requesting a

2023Attorneys who have a sound strategic basis for their actions have “not perform[ed] deficiently.” Id. ¶45 We have previously noted that attorneys often have a sound strategic basis for deciding not to ask for a lesser-included- offense instruction.

2020In these circumstances, not requesting a lesser included offense instruction of attempted lewdness was an objectively reasonable decision entitled to our deference, see Binkerd, 2013 UT App 216, ¶ 31 , and Powell has not otherwise demonstrated that counsel acted unreasonably in light of the theory presented at trial and the evidence counsel believed supported it, see Hull, 2017 UT App 233, ¶ 17 ; see also Scott, 2020 UT 13, ¶ 36 .

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

2020See, e.g., State v. Neeley, 748 P.2d 1091, 1095 (treating criminal trespass as a lesser-included offense of burglary); Baker, 671 P.3d at 159–60 (same).

2017We therefore conclude that trial counsel's failure to request an instruction regarding the lesser included offense did not violate Defendant's constitutional right to the effective assistance of counsel. ¶23 Affirmed. 4 See, e.g. , State v. Neeley , 748 P.2d 1091 , 1095 (Utah 1988) (treating criminal trespass as a lesser included offense of burglary); State v. Baker , 671 P.2d 152 , 159-60 (Utah 1983) (same); State v. Quintana , 2004 UT App 418 , ¶¶ 8-9, 103 P.3d 168 (accepting without analysis that criminal trespass was a lesser included offense of burglary); State v. Peterson , 881 P.2d 965

2020Florez’s challenge is therefore unpreserved. ¶28 Under Utah law, a defendant is “entitled to a lesser- included-offense instruction when: (1) the two offenses are related because some of their statutory elements overlap, and the evidence at trial of the greater offense involves proof of some or all of those overlapping elements; and (2) the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the lesser- included offense.” See State v. Kell, 2002 UT 106, ¶ 23 , 61 P.3d 1019 (quotation simplified); see also State v. Bak

2020Florez’s challenge is therefore unpreserved. ¶28 Under Utah law, a defendant is “entitled to a lesser- included-offense instruction when: (1) the two offenses are related because some of their statutory elements overlap, and the evidence at trial of the greater offense involves proof of some or all of those overlapping elements; and (2) the evidence provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the lesser- included offense.” See State v. Kell, 2002 UT 106, ¶ 23 , 61 P.3d 1019 (quotation simplified); see also State v. Bak

2017This is because, 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." See State v. Dyer , 671 P.2d 142 , 145 (Utah 1983) ; cf. State v. Feldmiller , 2013 UT App 275 , ¶¶ 3-4, 316 P.3d 991 (per curiam) (holding that counsel did not perform deficiently by forgoing a special mitigation instruction, because the "wide latitude counsel is giv

2017Instead, we need only articulate some plausible strategic explanation for counsel’s behavior.” (citation omitted)). ¶ 62 Here, we agree with' the- State that there’was a plausible basis for counsel’s decision not to request a lesser included offense instruction; Por example, as the State suggests, trial counsel could have decided to forgo a lesser included offense instruction as part of an “ ‘all or nothing’ defense theory, i,e., that [Defendants were] totally innocent of any wrongdoing.” State v. Dyer, 671 P.2d 142, 145 (Utah 1983); see also State v. Feldmiller, 2013 UT App 275, ¶¶ 3-4 , 316