lesser included offense instruction in District of Columbia

2007A lesser included offense instruction is warranted when “(1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.” Rease v. United States, 403 A.2d 322, 328 (D.C.1979) (citations omitted).

2007This court has repeatedly said that “[a] defendant is entitled to a lesser included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.” Rease v. United States, 403 A.2d 322, 328 (D.C.1979) (citations omitted); see also, e.g., Leak v. United States, 757 A.2d 739, 740 (D.C.2000), cert. denied, 534 U.S. 1054 , 122 S.Ct. 644 , 151 L.Ed.2d 562 (2001).

2002See Berroa, 763 A.2d at 95 (“The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of [the greater offense], but simply to avoid setting the defendant free.”) (quoting Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984)); accord Simmons, 554 A.2d at 1171 (holding that “the court must instruct the jury, upon request, on any lesser included offense, jury-triable or not, whenever there is a *1012 basis in the evidence for such an instruction”).

1999A lesser-included offense instruction is proper where 1) the lesser included offense consists of “some, but not every element of the greater offense;” and 2) the evidence is sufficient “to support the lesser charge.” Bragdon v. United States, 668 A.2d 403, 405 (D.C.1995) (citation omitted), subsequent appeal at 717 A.2d 878 (D.C.1998); Simmons v. United States, 554 A.2d 1167, 1170 (D.C.1989) (citation omitted).

2017A trial court is required to grant a defendant’s request that the jury be instructed on a lesser included offense of a charged offense “as long as (1) the lesser included offense consists of some, but not every[,] element of the greater offense[] and (2) the evidence is sufficient to support the lesser charge.” (Cedrick) Shuler v. United States, 98 A.3d 200, 206 (D.C. 2014) (quoting Jennings v. United States, 993 A.2d 1077, 1079 (D.C. 2010)); see also Price v. United States, 602 A.2d 641, 644 (D.C. 1992); Wright v. United States, 505 A.2d 470, 472 (D.C. 1986) (“When counsel ask for a lesser-in

1995Before a judge may give a lesser-included offense instruction, two requirements must be met: “(1) the lesser offense must consist of some, but not every element of the greater offense; and (2) the evidence must be sufficient to support the lesser charge.” Price, supra, 602 A.2d at 644.

1996Once a defendant asserts that there is such a factual dispute, the court must give a lesser-included offense instruction if “there is some evidence upon the subject.’' This eviden-tiary requirement is a minimal one; it means “ ‘any evidence' ... however weak." 390 A.2d at 962 (citations omitted). 5 .

1986As for the second requirement of a sufficient evidentiary basis, the trial court should give a lesser included offense instruction if “proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge.” Rease, supra, 403 A.2d at 328-329 (citations omitted); accord, Rouse v. United States, 402 A.2d 1218, 1220 (D.C.1979); Day v. United States, 390 A.2d 957, 962 (D.C.1978); see also Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985).

2007Conclusion On the record before us, we think that an unarmed instruction in this case would have been “irrational, or [would have] require[d] the jury to undertake a ‘bizarre reconstruction of the evidence.’” Leak, 757 A.2d at 740 (citations omitted); see Shuler v. United States, 677 A.2d 1014, 1017 (D.C.1996) (“the court is ‘not required to put the case to the jury on a basis that essentially indulges and even encourages speculations as to bizarre reconstruction’ ” (citation omitted)); Price, supra note 25, 602 A.2d at 644 (a lesser included offense instruction is not required if a “finding t

1997As we have said previously, “[t]o justify a lesser included offense instruction, ‘there must be evidence to support a finding of guilt on the lesser offense.’ ” Shuler, supra, 677 A.2d at 1017 (citations omitted).

1992Simmons, supra, 554 A.2d at 1171 ; Robinson v. United States, 361 A.2d 199, 201 (D.C.1976); Belton v. United States, 127 U.S.App.D.C. 201 , 206, 382 F.2d 150, 155 (1967).

1986The burden is on the party seeking the instruction to convince the court “that there is evidence indicating the existence of a factual dispute.... [A]ny evidence, ‘however weak,’ will satisfy this requirement.” Rease, supra, 403 A.2d at 329 , citing Rouse, supra, 402 A.2d at 1221 and Day, supra, 390 A.2d at 962 ; see Belton v. United States, 127 U.S.App.D.C. 201 , 206, 382 F.2d 150, 155 (1967).

2017A trial court is required to grant a defendant’s request that the jury be instructed on a lesser included offense of a charged offense “as long as (1) the lesser included offense consists of some, but not every[,] element of the greater offense[] and (2) the evidence is sufficient to support the lesser charge.” (Cedrick) Shuler v. United States, 98 A.3d 200, 206 (D.C. 2014) (quoting Jennings v. United States, 993 A.2d 1077, 1079 (D.C. 2010)); see also Price v. United States, 602 A.2d 641, 644 (D.C. 1992); Wright v. United States, 505 A.2d 470, 472 (D.C. 1986) (“When counsel ask for a lesser-in

1998“Moreover, when counsel requests a lesser included offense instruction, ‘it should be freely given.’ ” Nelson v. United States, 601 A.2d 582, 594 (D.C.1991) (quoting Wright v. United States, 505 A.2d 470, 472 (D.C.1986)).

2005“A lesser-included offense instruction is proper where (1) the lesser included offense consists of ‘some, but not every element of the greater offense’”; and “(2) the evidence is sufficient ‘to support the lesser charge.’ ” Woodard v. United States, 738 A.2d 254, 261 (D.C. 1999) (citation omitted).

2001See Woodard, supra, 738 A.2d at 258 n. 9, 260-61 (parties do not have unilateral right to dictate whether or not a trial court provides a lesser-included offense instruction).

1996In United States v. Sinclair, 144 U.S.App.D.C. 13 , 444 F.2d 888 (1971), the court summed up the matter by explaining that “the refusal to give the lesser-included offense instruction is not error when ... the kind of reconstruction of events needed to support a lesser charge is neither fairly in-ferable from the testimony nor pointed out by defense trial counsel.” Id. at 15, 444 F.2d at 890 (emphasis added).

1996In United States v. Sinclair, 144 U.S.App.D.C. 13 , 444 F.2d 888 (1971), the court summed up the matter by explaining that “the refusal to give the lesser-included offense instruction is not error when ... the kind of reconstruction of events needed to support a lesser charge is neither fairly in-ferable from the testimony nor pointed out by defense trial counsel.” Id. at 15, 444 F.2d at 890 (emphasis added).

1989As for the second requirement, it is settled beyond dispute that a trial court should give a lesser included offense instruction, upon request, if “proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge.” Rease v. United States, supra, 403 A.2d at 328-329 (citations omitted); accord, e.g., Lightfoot v. United States, 378 A.2d 670, 673 (D.C. 1977) (giving of instruction depends on whether there is a “disputed factual element” distinguishing the greater offense from the lesser). “[A]ny evidence, ‘however weak,’ will satisfy th

1981II In support of his argument that carnal knowledge is a lesser included offense of rape, appellant relies heavily upon Lightfoot v. United States, D.C.App., 378 A.2d 670, 673-74 (1977), in which this court ruled that ‘A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ... [A] judge should not submit to the jury a lesser included offense over the objection of either the prosecution or the defense where the requisite disputed factual elem

1992Simmons v. United States, 554 A.2d 1167, 1170 (D.C.1989); Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985); United States v. Comer, 137 U.S.App.D.C. 214, 218 , 421 F.2d 1149, 1153 (1970).

1992Simmons v. United States, 554 A.2d 1167, 1170 (D.C.1989); Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985); United States v. Comer, 137 U.S.App.D.C. 214, 218 , 421 F.2d 1149, 1153 (1970).

2000See Hawkins v. United States, 399 A.2d 1306, 1308 (D.C.1979) (“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required to conviction on of the lesser-included offense.” (quoting Sansone v. United States, 380 U.S. 343, 349-50 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965))).

2000See Hawkins v. United States, 399 A.2d 1306, 1308 (D.C.1979) (“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required to conviction on of the lesser-included offense.” (quoting Sansone v. United States, 380 U.S. 343, 349-50 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965))).

1996“That an exculpatory defense was presented does not preclude a lesser included offense instruction if the other evidence presented provides a basis for finding defendant guilty of the lesser included offense.” Anderson v. United States, 490 A.2d 1127 , 1130 n. 2 (D.C.1985). 6 .

1995A lesser-included offense instruction may not be given where “the jury would have to engage in an irrational or bizarre reconstruction of the facts of the case.” Id. at 1130 .

1978A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, Sansone v. United States, 380 U.S. 343, 349-50 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1956); Pendergrast v. United States, D.C.App., 332 A.2d 919, 924 (1975), and (2) there is a sufficient evidentiary basis for the lesser charge.

1978In Pendergrast v. United States, D.C.App., 332 A.2d 919, 924 (1975), this court reiterated the test for determining when a lesser included offense instruction should be given: viz., (1) does the lesser included offense consist entirely of some but not all elements of the greater offense, and (2) does the evidence justify giving that charge.

2007Appellant’s claim of error focuses only on the evidentiary requirement, i.e., the second element under Rease . 24 Generally, “the court is not required to give a lesser-included offense instruction unless proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge.” Rease, 403 A.2d at 328-329 (citations omitted); see also, e.g., Lampkins v. United States, 515 A.2d 428, 432 (D.C.1986).

1997“A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for the lesser charge.” Mitchell v. United States, 595 A.2d 1010, 1011 (D.C.1991); Lampkins v. United States, 515 A.2d 428, 432 (D.C.1986).

1986As for the second requirement of a sufficient evidentiary basis, the trial court should give a lesser included offense instruction if “proof of the greater offense will require the jury to find a disputed fact that need not be found to prove the lesser charge.” Rease, supra, 403 A.2d at 328-329 (citations omitted); accord, Rouse v. United States, 402 A.2d 1218, 1220 (D.C.1979); Day v. United States, 390 A.2d 957, 962 (D.C.1978); see also Anderson v. United States, 490 A.2d 1127, 1129 (D.C.1985).

1981“A defendant is entitled to a lesser-included offense instruction when (1) all elements of the lesser offense are included within the offense charged, and (2) there is a sufficient evidentiary basis for a lesser charge.” Rouse v. United States, D.C.App., 402 A.2d 1218, 1220 (1979); accord, Rease v. United States, D.C.App., 403 A.2d 322, 328 (1979) (per curiam); Day v. United States, D.C.App., 390 A.2d 957, 961 (1978); see Super.

2017We have said that whether a defendant charged with robbery is entitled to a lesser-included-offense instruction turns on “whether the evidence presented limited the rational conclusion of the fact-finder to either acquittal or conviction on robbery.” Leak v. United States, 757 A.2d 739, 741 (D.C. 2000).

2017We have said that whether a defendant charged with robbery is entitled to a lesser-included-offense instruction turns on “whether the evidence presented limited the rational conclusion of the fact-finder to either acquittal or conviction on robbery.” Leak v. United States, 757 A.2d 739, 741 (D.C. 2000).

2007The requirement of a sufficient evidentiary basis is “met in one of two ways: (1) where there is conflicting testimony on the factual issue, and (2) where the lesser included offense is fairly inferable from the evidence, including a reconstruction of the events gained by accepting testimony of some or all of the witnesses, even in part.” Robinson v. United States, 388 A.2d 1210, 1213 (D.C.1978) (citations omitted).

2007Stated another way, “[t]he requirement of a sufficient evidentiary basis can be met by a showing that (1) ‘there is conflicting testimony on the factual issue,’ or (2) the lesser-included offense is fairly inferable from the evidence, including a reconstruction of the events gained by accepting all or some of the testimony of some or all [of the] witnesses.” Boykins v. United States, 702 A.2d 1242, 1250 (D.C.1997) (quoting Robinson v. United States, 388 A.2d 1210, 1213 (D.C.1978)); see also, e.g., Leak, 757 A.2d at 740 .

1991Indeed, the lesser included offense doctrine evolved at common law “to prevent the prosecution from failing where some element of the crime charged was not made out.” Kelly v. United States, 125 U.S.App.D.C. 205 , 207, 370 F.2d 227, 229 (1966) (emphasis added) (quoting People v. Mussenden, 308 N.Y. 558, 562 , 127 N.E.2d 551, 553 (1955)), cert. denied, 388 U.S. 913 , 87 S.Ct. 2127 , 18 L.Ed.2d 1355 (1967).

1991Kelly v. United States, 125 U.S.App.D.C. 205 , 207, 370 F.2d 227, 229 (1966), cert. denied, 388 U.S. 913 , 87 S.Ct. 2127 , 18 L.Ed.2d 1355 (1967); see also Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154, 3159 , 82 L.Ed.2d 340 (1984). 5 .

2004In each of our reversing cases, however, the jury had no “lesser” offense for which *1075 it could convict the defendant. 10 The “fundamental concern in Beck ” was “the all-or-nothing nature of the decision with which the jury was presented” and that “ ‘[t]he absence of a lesser included offense instruction increasefd] the risk that the jury ... [would] convict ... simply to avoid setting the defendant free.’ ” Schad v. Arizona, 501 U.S. 624, 646 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (quoting Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984)).

2004In each of our reversing cases, however, the jury had no “lesser” offense for which *1075 it could convict the defendant. 10 The “fundamental concern in Beck ” was “the all-or-nothing nature of the decision with which the jury was presented” and that “ ‘[t]he absence of a lesser included offense instruction increasefd] the risk that the jury ... [would] convict ... simply to avoid setting the defendant free.’ ” Schad v. Arizona, 501 U.S. 624, 646 , 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991) (quoting Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984)).

1987The court then went on to abandon the traditional rule of mutuality, by which the right of the defense to a lesser-included offense instruction could not exceed that of the prosecution, reasoning that "[t]he defense ought not to be restricted by the stringent constitutional limits upon the prosecutor's right." Id. at 351 , 447 F.2d at 321 .

1987The court then went on to abandon the traditional rule of mutuality, by which the right of the defense to a lesser-included offense instruction could not exceed that of the prosecution, reasoning that "[t]he defense ought not to be restricted by the stringent constitutional limits upon the prosecutor's right." Id. at 351 , 447 F.2d at 321 .

2017Here, as it is well-established that second-degree theft is a lesser included offense of robbery, Leak v. United States, 757 A.2d 739, 741 (D.C. 2000) (citing Ulmer v. United States, 649 A.2d 295, 297 (D.C. 1994)), we turn to the question whether the second condition was satisfied — that is, whether the evi dence was sufficient to support the lesser included offense of theft.

2003See, e.g., Ulmer v. United States, 649 A.2d 295, 297 (D.C.1994). 4 .The Maryland court in Hagans mentioned the District of Columbia Circuit as one of the courts that consider it "more appropriate for the parties to decide whether an instruction should be given.” 316 Md. at 454 , 559 A.2d at 804 , citing Walker , 135 U.S.App.

2017A trial court is required to grant a defendant’s request that the jury be instructed on a lesser included offense of a charged offense “as long as (1) the lesser included offense consists of some, but not every[,] element of the greater offense[] and (2) the evidence is sufficient to support the lesser charge.” (Cedrick) Shuler v. United States, 98 A.3d 200, 206 (D.C. 2014) (quoting Jennings v. United States, 993 A.2d 1077, 1079 (D.C. 2010)); see also Price v. United States, 602 A.2d 641, 644 (D.C. 1992); Wright v. United States, 505 A.2d 470, 472 (D.C. 1986) (“When counsel ask for a lesser-in

2014Usually, “a lesser-included offense instruction is properly given as long as (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge.” 7 Jennings v. United States, 993 A.2d 1077, 1079 (D.C.2010) (citation and internal quotation marks omitted).

2009According to Owens, the trial court’s failure to instruct the jury on involuntary manslaughter was error because the refusal to provide a lesser-included offense instruction may leave the jury with only two alternatives: conviction of the “greater” offense or acquittal. “[T]he unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason-its belief that the defendant is guilty of some serious crime and should be punished.” Donaldson, supra, 856 A.2d at 1074 (quoting Beck v. Alabama, 447 U.S. 625, 642 , 100 S.Ct. 2382

2009According to Owens, the trial court’s failure to instruct the jury on involuntary manslaughter was error because the refusal to provide a lesser-included offense instruction may leave the jury with only two alternatives: conviction of the “greater” offense or acquittal. “[T]he unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason-its belief that the defendant is guilty of some serious crime and should be punished.” Donaldson, supra, 856 A.2d at 1074 (quoting Beck v. Alabama, 447 U.S. 625, 642 , 100 S.Ct. 2382

2017The government relies on Spriggs, 52 A.3d 878 , and Mitchell v. United 22 States, 595 A.2d 1010 (D.C. 1991), for the proposition that a failure to give a lesser-included-offense instruction is harmless when conviction for the greater offense evinces a rejection of the defense’s theory underlying its request for the instruction.

2017See Spriggs, 52 A.3d at 886 n.6 (holding that the trial court’s failure to give a lesser-included-offense instruction on simple assault for two assault-with-a-dangerous-weapon charges was harmless because the jury rejected the lesser included offense on a related charge of assault with significant bodily injury, showing that the jury credited the complainant’s account of the events); Mitchell, 595 A.2d at 1011–13 (holding that the failure to give an instruction on the lesser included offense of attempted simple possession was harmless where the court instructed the jury on the lesser included

2017He “concede[d] ... that he never introduced any evidence to create a factual dispute as to” the force or violence element, and instead contended that “because [the complainant] was usually in a state of fear when only a few customers were” present in the restaurant, as was the case when the defendant committed the offense, “the government was required to prove that his actions at the time the offense was committed put her more in fear.” Id.

2017In upholding the trial court’s refusal to give a lesser- included offense instruction on larceny, we stated that the defendant “concede[d], as he must,” that he had failed to create a factual dispute as to whether his conduct put the victim in fear, so as to meet the “force or violence” requirement of robbery. 49 Id. at 464 .

2014Although a trial court should generally “refrain from instructing a jury on a lesser-included offense without a request from a party to do so,” Mungo, supra, 772 A.2d at 243 (citing Woodard v. United States, 738 *209 A.2d 254, 258 n. 9 (D.C.1999)), a “trial court’s sua sponte suggestion of a lesser-included offense instruction is not error simply because the trial court acts of its own accord,” High v. United States, 972 A.2d 829, 833 (D.C.2009).

2014Although a trial court should generally “refrain from instructing a jury on a lesser-included offense without a request from a party to do so,” Mungo, supra, 772 A.2d at 243 (citing Woodard v. United States, 738 *209 A.2d 254, 258 n. 9 (D.C.1999)), a “trial court’s sua sponte suggestion of a lesser-included offense instruction is not error simply because the trial court acts of its own accord,” High v. United States, 972 A.2d 829, 833 (D.C.2009).

2010Thus, a lesser-included offense instruction is properly given "where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge." Id.

2010Thus, a lesser-included offense instruction is properly given “where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge.” Id.