lesser included offense instruction in Kentucky

2025A defendant is only entitled to a lesser-included offense instruction if: “considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)).

2025The general rule is that if requested, a trial court must give a lesser- included offense instruction if, but only if “considering the totality of the 16 evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.’” Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)).

2025The general rule is that if requested, a trial court must give a lesser- included offense instruction if, but only if “considering the totality of the 16 evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.’” Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)).

2025Trial 6 courts must give a lesser-included offense instruction “if, but only if, ‘considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.’” Jenkins v. Commonwealth, 496 S.W.3d 435, 449 (Ky. 2016) (quoting Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007)).

2025Trial 6 courts must give a lesser-included offense instruction “if, but only if, ‘considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.’” Jenkins v. Commonwealth, 496 S.W.3d 435, 449 (Ky. 2016) (quoting Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007)).

2024Trial courts must give a lesser included offense instruction “if, but only if, ‘considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.’” Jenkins v. Commonwealth, 496 S.W.3d 435, 449 (Ky. 2016) (quoting Commonwealth v. Swift, 237 S.W.3d 193, 195 (Ky. 2007)). 6 A person is guilty of second-degree robbery, a Class C felony, “when, in the course of committing theft, he or she uses or threatens the immediate use of physical force upon anoth

2020See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).

2018See Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).

2025Yet, the majority stated in concluding its opinion: “When the defendant’s testimony is of such a nature that ‘the evidence presents an all-or-nothing proposition,’ a lesser-included offense instruction is not warranted.” 671 S.W.3d at 45 (quoting Swan v. Commonwealth, 384 S.W.3d 77, 100 (Ky. 2012)).

2023When a defendant argues on appeal that a trial court failed to give a jury instruction required by the evidence presented at trial, this Court reviews the alleged error for abuse of discretion.64 A trial court abuses its discretion if its decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”65 Additionally, while it is the duty of the trial court to prepare and give instructions on the whole law of the case,66 a lesser-included offense instruction is not proper simply because a defendant requests it.67 “[A]n instruction on a lesser included offense is requir

2020Snell now argues that the instruction for the lesser included offense was warranted because the Commonwealth failed to prove “serious physical injury.” A lesser-included offense instruction is required “if, only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.”17 We therefore must determine whether a reasonable juror could acquit of the greater charge but convict on the lesser.18 This Court shall review the trial court’s deni

2016Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006), as modified (July 28, 2006).

2016In other words, "a court may refuse to give a lesser-included offense instruction only if 'there is no room for any possible theory except that he is guilty of the greater offense or he is innocent."' Oakes v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (brackets omitted) (quoting Commonwealth v. Wolford, 4 S.W.3d 534, 538-39 (Ky. 1999)).

2011Thomas v. Commonwealth, 170 S.W.3d 343 (Ky.2005); Osborne, supra; Commonwealth v. Wolford, 4 S.W.3d 534 (Ky.1999). 1 Generally, of course, a lesser included offense instruction is not required unless the lesser offense is, in fact, “included” within the greater charged offense.

2025See Baker v. Commonwealth, 545 S.W.3d 267, 279-80 (Ky. 2018).

2021See Baker v. Commonwealth, 545 S.W.3d 267, 281 (Ky. 2018) (declining to reverse other convictions based on an error limited to a tampering with physical evidence charge).

2025A defendant is only entitled to a lesser-included offense instruction if: “considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012) (quoting Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998)).

2023But a lesser-included offense instruction should only be given after consideration of the “the totality of the evidence,” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012), and when “it is justified by the evidence.” Martin v. Commonwealth, 571 S.W.2d 613, 615 (Ky. 1978).

2023Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998) (holding that because defendant stated he “went crazy” before strangling victim, a reasonable juror could conclude he merely engaged in wanton rather than intentional conduct).

2023Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998) (holding that because defendant stated he “went crazy” before strangling victim, a reasonable juror could conclude he merely engaged in wanton rather than intentional conduct).

2020Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013).

2020“Upon review, we likewise consider whether the trial court erred by refusing to give a lesser-included offense instruction under the ‘reasonable juror standard.’” Id. at 542 (citing Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013)).6 6 Our Supreme Court has explained that assigning a precise label to this standard of review is often imprecise and somewhat misleading.

2020See Oakes v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (explaining that “[t]he failure to grant a request for a lesser-included offense instruction is reversible error”); Commonwealth v. Swift, 237 S.W.3d 193, 196 (Ky. 2007) (explaining that “the trial court’s failure to give a necessary lesser-included offense instruction cannot be deemed a harmless error” (citing Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995).

2016In other words, "a court may refuse to give a lesser-included offense instruction only if 'there is no room for any possible theory except that he is guilty of the greater offense or he is innocent."' Oakes v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (brackets omitted) (quoting Commonwealth v. Wolford, 4 S.W.3d 534, 538-39 (Ky. 1999)).

2016Under the lesser-included offense doctrine, San-sane, 380 U.S. at 349-50 , 85 S.Ct. 1004 , instructions on both offenses cannot be justified because the “factual issues to be resolved by the jury are the same as to both.” Kentucky has never had cause to adopt Sansone but it certainly is consistent with this Court’s precedent regarding when a lesser-included offense instruction is justified. “[A]n instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and y

2016Under the lesser-included offense doctrine, San-sane, 380 U.S. at 349-50 , 85 S.Ct. 1004 , instructions on both offenses cannot be justified because the “factual issues to be resolved by the jury are the same as to both.” Kentucky has never had cause to adopt Sansone but it certainly is consistent with this Court’s precedent regarding when a lesser-included offense instruction is justified. “[A]n instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and y

2016"The jury is required to decide a criminal case on the evidence as presented or reasonably deducible therefrom, not on imaginary scenarios," and thus "a lesser-included offense instruction is available only when supported by the evidence." White v. Commonwealth, 178 S.W.3d 470, 491 (Ky. 2006).

2010The failure to grant a request for a lesser-included offense instruction is reversible error “if on the given evidence a reasonable juror could entertain reasonable doubt of the defendant’s guilt of the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.” White v. Commonwealth, 178 S.W.3d 470, 490 (Ky.2006) (quotation omitted); accord Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky.1998).

2011In fact, in Commonwealth v. Black, 907 S.W.2d 762, 763 (Ky.1995), this Court deemed the appellant entitled to a lesser included offense instruction because "it would be reasonable for a juror to believe that appellant verbally, but not physically, threatened the detective." (Emphasis added); But see Commonwealth v. demons, 734 S.W.2d 459, 462 (Ky.1987) (Vance, J., dissenting) (stating that "[t]he pointing of a firearm at another person, if it constitutes a threat, appropriately falls within the provision of K.R.S. 508.080 dealing with terroristic threatening").

2011In fact, in Commonwealth v. Black, 907 S.W.2d 762, 763 (Ky.1995), this Court deemed the appellant entitled to a lesser included offense instruction because "it would be reasonable for a juror to believe that appellant verbally, but not physically, threatened the detective.” (Emphasis added); But see Commonwealth v. Clemons, 734 S.W.2d 459, 462 (Ky.1987) (Vance, J., dissenting) (stating that "[t]he pointing of a firearm at another person, if it constitutes a threat, appropriately falls within the provision of K.R.S. 508.080 dealing with terroristic threatening”).

2008Thus, the lesser included offense instruction is given "'only when the state of the evidence is such that a juror might entertain reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser offense."' Jacobs v. Commonwealth, 58 S.W.3d 435, 446 (Ky. 2001) (quoting Billings v. Commonwealth, 843 &V12d 890, 894 (Ky. 1992)); see also Lawson v. Commonwealth, 85 S.W .3d 571, 574 (Ky. 2002).

2008Thus, the lesser included offense instruction is given “ ‘only when the state of the evidence is such that a juror might entertain reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.’ ” Jacobs v. Commonwealth, 58 S.W.3d 435, 446 (Ky.2001) (quoting Billings v. Commonwealth, 843 S.W.2d 890, 894 (Ky.1992)); see also Lawson v. Commonwealth, 85 S.W.3d 571, 574 (Ky.2002).

2024“An instruction on a lesser included offense should not be given unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser included offense.” Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977).

1994Commonwealth v. Collins, 821 S.W.2d at 491 ; Luttrell v. Commonwealth, 554 S.W.2d at 78 .

2021In Allen, we held that “[a]n appellate court likewise applies this ‘reasonable juror’ standard to a claim that the trial court 5 Kentucky Rules of Criminal Procedure. 8 erred by refusing to give a lesser included offense instruction.” 338 S.W.3d at 255 .

2019An acquittal on the greater offense of murder and in its place a conviction for the lesser offense of manslaughter in the first degree would not be reasonable under the standard set out in Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011): An appellate court likewise applies this “reasonable juror” standard to a claim that the trial court erred by refusing to give a lesser included offense instruction.

2023When a defendant argues on appeal that a trial court failed to give a jury instruction required by the evidence presented at trial, this Court reviews the alleged error for abuse of discretion.64 A trial court abuses its discretion if its decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”65 Additionally, while it is the duty of the trial court to prepare and give instructions on the whole law of the case,66 a lesser-included offense instruction is not proper simply because a defendant requests it.67 “[A]n instruction on a lesser included offense is requir

2023“Where the evidence would support a finding of different degrees of a crime, ‘the trial court usurps the role of the jury in determining that the evidence did not support a lesser-included offense instruction.’” Swan, 384 S.W.3d at 101 (quoting Parker v. Commonwealth, 241 S.W.3d 805, 811 (Ky. 2007)).

2023Thomas v. Commonwealth, 587 S.W.2d 264, 266 (Ky. App. 1979) (“Indeed, under the Fifth Amendment privileges of the Constitution of the United States, the defendant need give no testimony.”).

2023See RCr 9.54; Elery v. Commonwealth, 368 S.W.3d 78, 89 (Ky. 2012).

2023But a lesser-included offense instruction should only be given after consideration of the “the totality of the evidence,” Hudson v. Commonwealth, 385 S.W.3d 411, 416 (Ky. 2012), and when “it is justified by the evidence.” Martin v. Commonwealth, 571 S.W.2d 613, 615 (Ky. 1978).