lesser included offense instruction in Wyoming

2003Id. (citing Eatherton v. State, 761 P.2d 91, 94-95 (Wyo.1988)).

1991In Eatherton v. State, 761 P.2d 91, 94-95 (Wyo.1988), after remand 810 P.2d 93 (Wyo.1991) (quoting Miller v. State, 755 P.2d 855, 865 (Wyo.1988)), we reiterated our five-part test as to when a lesser-included offense instruction is required: “(1) a proper request [for the instruction] is made; (2) the elements of the lesser-included offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser-included offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that

2003"The failure to give a lesser-included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error." Houghton, at 646 (citing Paramo, 896 P.2d at 1344 ). [T14] Furthermore, when looking at the full text surrounding the language from Keffer quoted in the Pearson case we see an objection must be imposed "to give the trial court an opportunity to correct possible error in instructions before the jury retires." Muniz v. State, 788 P.2d [141] at 14[2] [(Wyo.1989)]; Morris v. State, 644 P.2d 170 (Wyo.1982).

2003STANDARD OF REVIEW [T9] "Where proper objection is made on the record, a district court's failure to give a lesser-included offense instruction is subject to a de novo standard of review." Houghton v. State, 6 P.3d 648, 646 (Wyo.2000) (citing Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995)).

2022See generally Jacobs v. State, 2021 WY 104, ¶ 10 , 495 P.3d 303 , 308 (Wyo. 2021) (reviewing the district court’s decision de novo when the defendant requested a lesser-included offense instruction); State v. Keffer, 860 P.2d 1118 , 1137–40 (Wyo. 1993) (reviewing the district court’s denial of the State’s request for a lesser-included offense instruction de novo).

2022Warren v. State, 835 P.2d 304 , 330– 31 (Wyo. 1992) (Urbigkit, C.J., dissenting) (“When the trial court refuses to give an instruction on the lesser included offense, the appellate court must view the evidence supporting the lesser included offense in the light most favorable to the party requesting the instruction.”); Dean v. State, 2003 WY 128, ¶ 13 , 77 P.3d 692, 697 (Wyo. 2003) 6 (holding when the defendant requests a lesser-included offense instruction the court “should view the evidence in the light most favorable to the accused” when “deciding whether to give a lesser-included offense i

2022Warren v. State, 835 P.2d 304 , 330– 31 (Wyo. 1992) (Urbigkit, C.J., dissenting) (“When the trial court refuses to give an instruction on the lesser included offense, the appellate court must view the evidence supporting the lesser included offense in the light most favorable to the party requesting the instruction.”); Dean v. State, 2003 WY 128, ¶ 13 , 77 P.3d 692, 697 (Wyo. 2003) 6 (holding when the defendant requests a lesser-included offense instruction the court “should view the evidence in the light most favorable to the accused” when “deciding whether to give a lesser-included offense i

2022Warren v. State, 835 P.2d 304 , 330– 31 (Wyo. 1992) (Urbigkit, C.J., dissenting) (“When the trial court refuses to give an instruction on the lesser included offense, the appellate court must view the evidence supporting the lesser included offense in the light most favorable to the party requesting the instruction.”); Dean v. State, 2003 WY 128, ¶ 13 , 77 P.3d 692, 697 (Wyo. 2003) 6 (holding when the defendant requests a lesser-included offense instruction the court “should view the evidence in the light most favorable to the accused” when “deciding whether to give a lesser-included offense i

2015At issue was a five-part test from United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir. 1980), that this Court had been using to determine whether a lesser included offense instruction should be given.

1992These cases in current Wyoming law seek support for the assertion that a conflicting theory of the case defense denies access to a lesser included offense instruction without regard for other evidence provided by either party by citation of Chapman, 615 F.2d 1294 .

2003The weight or amount of the substance possessed determines only the grade and punishment imposed, and we find the penalty to be irrelevant in determining whether a lesser-included offense instruction is warranted. 4 [¶ 21] We have “long recognized that possession of a controlled substance is a lesser-included offense of delivery of a controlled substance.” Nava v. State, . 904 P.2d 364, 367 (Wyo.1995) (citing Johnson v. State, 695 P.2d 638 (Wyo.1985); Boyd v. State, 528 P.2d 287 (Wyo.1974); Dycus v. State, 529 P.2d 979 (Wyo.1974)).

2003See, for example, Paramo, 896 P.2d at 1344 (failure to give lesser-included offense instruction is reversible error if the evidence supports it); Nava v. State, 904 P.2d 364, 367-68 (Wyo.1995) (not error not to give lesser-included offense instruction where the evidence of guilt of the greater offense is overwhelming); Bloomquist v. State, 914 P.2d 812, 822 (Wyo.1996) (judge would have refused a lesser-included offense instruction because of overwhelming evidence of guilt of the charged crime); Sindelaor, 982 P.2d at 782 (reversible error results from failure to give a lesser-included offense

1993The lesser included offense doctrine benefits the prosecution when it fails to establish each of the elements of the charged crime and the doctrine benefits the defendant because it provides the jury a “ ‘less drastic alternative than the choice between conviction of the offense charged and acquittal.’ ” State v. Selig, 635 P.2d 786, 790 (Wyo.1981) (quoting Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382, 2387 , 65 L.Ed.2d 392 (1980)).

1993The lesser included offense doctrine benefits the prosecution when it fails to establish each of the elements of the charged crime and the doctrine benefits the defendant because it provides the jury a "`less drastic alternative than the choice between conviction of the offense charged and acquittal.'" State v. Selig, 635 P.2d 786, 790 (Wyo.1981) ( quoting Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382, 2387 , 65 L.Ed.2d 392 (1980)).

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: “ * * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: "* * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

2021She contends that the lesser-included offense instruction on accessory to attempted voluntary manslaughter would have so focused the jury’s assessment. [¶20] We do not disagree that Ms. Jacob’s individual intent as an accessory may differ from that of the principal. “[T]he aider and abettor must share the principal’s criminal intent, but the prosecution is not required to prove that the aider and abettor possessed the identical intent to that possessed by the principal.” Fales v. State, 908 P.2d 404, 408 (Wyo. 1995) (citing Jahnke, 692 P.2d at 921 ).

1993See Jahnke, 692 P.2d 911 . *1130 After some judicial uncertainty was manifested in Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), overruled by United States v. Dixon, ___ U.S. ___, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), and United States v. Felix, ___ U.S. ___, 112 S.Ct. 1377 , 118 L.Ed.2d 25 (1992), the Supreme Court of the United States has established the role of the lesser included offense doctrine in assuring double jeopardy protection.

2003Keller v. State, 771 P.2d 379, 383 (Wyo.1989); State v. Selig, 635 P.2d 786, 790 (Wyo.1981).

2003See, for example, Houghton, 6 P.3d at 647 , Keller, 771 P.2d at 384-85 ; Jahnke v. State, 692 P.2d 911, 917-22 (Wyo.1984); and Selig, 635 P.2d at 792 .

2002Because the jury entered separate "guilty" findings to each charge under both subsection (b)) and subsection (b)(H), there being sufficient evidence to sustain a conviction under either subsection, 13 any potential ineffectiveness of counsel in failing to request a lesser-included offense instruction as to subsection (b)(i) does not prejudice appellant's conviction pursuant to subsection appellant was not entitled to such an instruction under subsection (b)(i). [156] In Balsley, 668 P.2d at 1327-28 , this Court (utilizing a test later modified by State v. Keffer, 860 P.2d 1118, 1134-36 (Wyo.19

1985In Selig v. State, Wyo., 635 P.2d 786 (1981), we adopted the test for instructing on a lesser included offense from United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir.1980), cert. denied 446 U.S. 967 , 100 S.Ct. 2947 , 64 L.Ed.2d 827 (1980), as follows: "This Court has held that a defendant is entitled to a lesser-included offense instruction when the following five elements are present: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser of

2022The district court should instruct the jury on the lesser-included offense of voluntary manslaughter “if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of [voluntary manslaughter] and acquit the defendant of [second-degree murder].” Jacobs, 2021 WY 104, ¶ 11 , 495 P.3d at 308; Thomas v. State, 2003 WY 53, ¶ 13 , 67 P.3d 1199 , 1202–03 (Wyo. 2003) (“The failure to give a lesser- included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error.”); Mueller

2022The district court should instruct the jury on the lesser-included offense of voluntary manslaughter “if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of [voluntary manslaughter] and acquit the defendant of [second-degree murder].” Jacobs, 2021 WY 104, ¶ 11 , 495 P.3d at 308; Thomas v. State, 2003 WY 53, ¶ 13 , 67 P.3d 1199 , 1202–03 (Wyo. 2003) (“The failure to give a lesser- included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error.”); Mueller

2022First, a court must determine if an offense meets the statutory elements test, and then it must “determine whether the evidence supports giving a lesser-included offense instruction.” Id.

2021Nickels, ¶ 15, 351 P.3d at 292 . “[T]he quantum of evidence required to give a lesser included offense instruction is minimal and a requested instruction should be given ‘if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of the lesser offense and acquit the defendant of the greater.’” Id. ¶ 16, 351 P.3d at 292 (quoting Keffer, 860 P.2d at 1136 ); see also Dean v. State, 2003 WY 128, ¶ 19 , 77 P.3d 692, 699 (Wyo. 2003) (“[A] lesser-included offense instruction is not to be given in the absence of some minimal evidentiary support.”)). 1 The j

1993Some eight months later, in Muniz v. State, 783 P.2d 141 (Wyo.1989), the court held that the failure to object at trial to the denial of a request for a lesser included offense instruction precluded review unless plain error was present.

1993Some eight months later, in Muniz v. State, 783 P.2d 141 (Wyo.1989), the court held that the failure to object at trial to the denial of a request for a lesser included offense instruction precluded review unless plain error was present.

1993The Supreme Court of Iowa said that the lesser included offense doctrine is “fraught with confusion because of the doctrine’s elusiveness in its definition and application.” State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988).

1993The Supreme Court of Iowa said that the lesser included offense doctrine is "fraught with confusion because of the doctrine's elusiveness in its definition and application." State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988).

1985Finally, in State v. Yarbrough, 131 Ariz. 70 , 638 P.2d 737 (1981), the court found no basis for giving a lesser included offense instruction of theft when the defendant was charged with robbery, citing the standard of "either guilty of the crime charged or not guilty at all." A defendant is entitled to lesser included offense instructions when a rational view of the evidence would permit a finding of guilt of the lesser offense and not guilty *124 of the greater offense.

1985Finally, in State v. Yarbrough, 131 Ariz. 70 , 638 P.2d 737 (1981), the court found no basis for giving a lesser included offense instruction of theft when the defendant was charged with robbery, citing the standard of "either guilty of the crime charged or not guilty at all." A defendant is entitled to lesser included offense instructions when a rational view of the evidence would permit a finding of guilt of the lesser offense and not guilty *124 of the greater offense.

2022The district court should instruct the jury on the lesser-included offense of voluntary manslaughter “if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of [voluntary manslaughter] and acquit the defendant of [second-degree murder].” Jacobs, 2021 WY 104, ¶ 11 , 495 P.3d at 308; Thomas v. State, 2003 WY 53, ¶ 13 , 67 P.3d 1199 , 1202–03 (Wyo. 2003) (“The failure to give a lesser- included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error.”); Mueller

2022The district court should instruct the jury on the lesser-included offense of voluntary manslaughter “if there are in dispute factual issues that would permit a jury rationally to find the defendant guilty of [voluntary manslaughter] and acquit the defendant of [second-degree murder].” Jacobs, 2021 WY 104, ¶ 11 , 495 P.3d at 308; Thomas v. State, 2003 WY 53, ¶ 13 , 67 P.3d 1199 , 1202–03 (Wyo. 2003) (“The failure to give a lesser- included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error.”); Mueller

1993Later, in Keeble, the Supreme Court summarized the rule that a defendant would be entitled to a lesser included offense instruction “if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble, 412 U.S. at 208 , 93 S.Ct. at 1995 .

1993Later, in Keeble , the Supreme Court summarized the rule that a defendant would be entitled to a lesser included offense instruction "if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble, 412 U.S. at 208 , 93 S.Ct. at 1995 .

1992In Amin, 694 P.2d 119 , the wife asked for a lesser included offense instruction of assault, battery, reckless endangering, and larceny, as well as simple robbery.

1992In Amin, 694 P.2d 119 , the wife asked for a lesser included offense instruction of assault, battery, reckless endangering, and larceny, as well as simple robbery.

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: “ * * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: "* * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: “ * * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

1983There, we established standards for determining when a particular offense is necessarily included in the offense charged and we noted: "* * * A trial court need not give a lesser-included offense instruction if the evidence clearly shows that the defendant is either guilty or not guilty of the offense charged, Jones v. State, Wyo., 580 P.2d 1150 (1978); Richmond v. State, Wyo., 554 P.2d 1217 (1976), reh. denied 558 P.2d 509 (1977); Oldham v. State, Wyo., 534 P.2d 107 (1975); Keeble v. United States, supra, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973).

1993In Sansone v. United States, 380 U.S. 343, 349-50 , 85 S.Ct. 1004, 1009-10 , 13 L.Ed.2d 882 (1965), the Supreme Court of the United States explained the evidentiary evaluation as connoting that a lesser included offense instruction would not be proper “where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and the greater evidence.” The court elaborated, saying: If on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that although all the elements of [the greater offense] have n

1993In Sansone v. United States, 380 U.S. 343, 349-50 , 85 S.Ct. 1004, 1009-10 , 13 L.Ed.2d 882 (1965), the Supreme Court of the United States explained the evidentiary evaluation as connoting that a lesser included offense instruction would not be proper “where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and the greater evidence.” The court elaborated, saying: If on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that although all the elements of [the greater offense] have n

2022Warren v. State, 835 P.2d 304 , 330– 31 (Wyo. 1992) (Urbigkit, C.J., dissenting) (“When the trial court refuses to give an instruction on the lesser included offense, the appellate court must view the evidence supporting the lesser included offense in the light most favorable to the party requesting the instruction.”); Dean v. State, 2003 WY 128, ¶ 13 , 77 P.3d 692, 697 (Wyo. 2003) 6 (holding when the defendant requests a lesser-included offense instruction the court “should view the evidence in the light most favorable to the accused” when “deciding whether to give a lesser-included offense i

1993Compare Griego v. State, 761 P.2d 973 (Wyo.1988) (holding under the facts of that case, since the element which distinguished the two crimes, the age of the victim, was not disputed at trial, it was proper for the trial court to refuse to give the jury instruction on the lesser included offense of fourth degree sexual assault), and Warren v. State, 835 P.2d 304 (Wyo.1992) (holding under the facts of that case, since no evidence was offered to prove that a shoe was not a deadly weapon, it was proper for the trial court to refuse to offer a lesser included offense instruction, a theory of the ca

2021“Individual culpability of the several parties to the crime is determined by the intent of each of them.” Jahnke, 692 P.2d at 922 . [¶21] That Ms. Jacobs could theoretically have had an intent different from that of Mr. Childers does not, however, mean that a voluntary manslaughter instruction was required. “[A] lesser-included offense instruction should not be given in the absence of some minimal evidentiary support.” Sindelar v. State, 2018 WY 29 , ¶ 55 n.5, 416 P.3d 764 , 777 n.5 (Wyo. 2018) (citing Johns v. State, 2018 WY 16, ¶ 23 , 409 P.3d 1260, 1268 (Wyo. 2018)).

2018Johns , ¶ 23, 409 P.3d at 1268 (citing Dean v. State , 2003 WY 128 , ¶ 19, 77 P.3d 692 , 699 (Wyo. 2003) (a lesser-included offense instruction should not be given in the absence of some minimal evidentiary support) ).