Tennessee Code Annotated
Tenn. Code Ann. § 40-18-110 (2026)
Charge as to lesser included offenses - Written request
✓ current as of May 2026
- (a) When requested by a party in writing prior to the trial judge's instructions to the jury in a criminal case, the trial judge shall instruct the jury as to the law of each offense specifically identified in the request that is a lesser included offense of the offense charged in the indictment or presentment. However, the trial judge shall not instruct the jury as to any lesser included offense unless the judge determines that the record contains any evidence which reasonable minds could accept as to the lesser included offense. In making this determination, the trial judge shall view the evidence liberally in the light most favorable to the existence of the lesser included offense without making any judgment on the credibility of evidence. The trial judge shall also determine whether the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser included offense.
- (b) In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge.
- (c) Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, the lesser included offense instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal.
- (d) Prior to instructing the jury on the law, the trial judge shall give the parties an opportunity to object to the proposed lesser included offense instructions. If the defendant fails to object to a lesser included offense instruction, the inclusion of that lesser included offense instruction may not be presented as a ground for relief either in a motion for a new trial or on appeal. Where the defendant objects to an instruction on a lesser included offense and the judge does not instruct the jury on that offense, the objection shall constitute a waiver of any objection in the motion for a new trial or on appeal concerning the failure to instruct on that lesser included offense. The defendant's objection shall not prevent the district attorney general from requesting lesser included offense instructions or prevent the judge from instructing on lesser included offenses.
- (e) When the defendant requests an instruction on a lesser included offense, the judge may condition the instruction on the defendant's consent to an amendment to the indictment or presentment, with the consent of the district attorney general, so that if there is a conviction for the requested lesser offense the request shall constitute a waiver of any objection in the motion for new trial and on appeal. The defendant may be required to execute a written document actually consenting to the amendment so that there may be a lawful conviction for the lesser offense. If the district attorney general does not consent to the amendment, the defendant may raise the issue of failure to give the requested charge on appeal. This subsection (e) shall not be construed as requiring an instruction on a lesser offense.
- (f) An offense is a lesser included offense if:
- (1) All of its statutory elements are included within the statutory elements of the offense charged;
- (2) The offense is facilitation of the offense charged or of an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1);
- (3) The offense is an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1); or
- (4) The offense is solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser included offense in subdivision (f)(1).
- (g)
- (1) Second degree murder is a lesser included offense of first degree murder as defined in § 39-13-202.
- (2) Voluntary manslaughter is a lesser included offense of premeditated first degree murder and second degree murder.
- (3) Aggravated sexual battery is a lesser included offense of aggravated rape, aggravated rape of a child, and rape of a child.
- (4) Sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape.
Amended by 2016 Tenn. Acts, ch. 671, s 1, eff. 7/1/2016.
Acts 1877, ch. 85, § 1; Shan., § 7188; Code 1932, § 11751; Acts 1979, ch. 318, § 25; T.C.A. (orig. ed.), § 40-2518; Acts 2001, ch. 338, §1; 2009 , ch. 439, § 1.
Notes of Decisions
Cited in 438
cases (23 in the last 5 years), 1984–2026 · leading case: State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016).
State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016). “Tenn. Code Ann. § 40-18-110 (2012). 2 Subsection (f) effectively codified parts (a) and (c) of the Bums test, while subsection (g)' clarified, as was the legislature’s prerogative, several lesser-included offenses.”
State v. Rice, 184 S.W.3d 646 (Tenn. 2006). “Tenn.Code Ann. § 40-18-110 (emphasis added).”
State v. Vasques, 221 S.W.3d 514 (Tenn. 2007). “tate of Tennessee and certain of the defendants was for the purpose of determining (1) whether the evidence at trial was sufficient to support the convictions for conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school…”
State v. Page, 184 S.W.3d 223 (Tenn. 2006). “The court opined that the 2001 amendment to Tennessee Code Annotated section 40-18-110, which provides that failure to request an instruction in writing waives the issue as grounds for a new trial or an appeal, was unconstitutional, abridging a defendant’s right to a jury trial.”
Rashe Moore v. State of Tennessee, 485 S.W.3d 411 (Tenn. 2016). “Acts 708 , 709 (codified as amended at Tenn. Code Ann. § 40-18-110 (2012)). The trial began just over a month later on February 11, 2002.”
State of Tennessee v. Broderick Devonte Fayne, 451 S.W.3d 362 (Tenn. 2014). “Possession as a Lesser Included Offense of Employment In 2009, the General Assembly amended Tennessee Code Annotated section 40-18-110 to include a statutory definition of the term “lesser included offense.”
State v. Ely, 48 S.W.3d 710 (Tenn. 2001). “HISTORICAL REVIEW OF LESSER-INCLUDED OFFENSES IN TENNESSEE Tennessee Code Annotated section 40-18-110 mandates giving an instruction on every offense "included" in an indictment.”
Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004). “See Tenn. Code Ann. § 40-18-110 (a) (1982). 10 5)Was the trial court’s ruling subject to deference on appeal? The trial court’s refusal to instruct the jury on second degree murder was not a ruling that was subject to deference on appeal.”
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). “§ 40-18-110(g)(3) (stating aggravated sexual battery is a lesser included offense of aggravated rape); Tenn. Code Ann. § 40-18-110 (g)(4) (stating sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape); Tenn.”
State v. Burns, 6 S.W.3d 453 (Tenn. 1999). “See Tenn.Code Ann. § 40-18-110 (1997) (“section 110”).”
State v. Reid, 91 S.W.3d 247 (Tenn. 2002). “Initially, we note that, in Tennessee, irrespective of a party's request for a lesser-included jury instruction, "[I]t is the duty of all judges charging juries in cases of criminal prosecutions for any felony .”
State v. Williams, 977 S.W.2d 101 (Tenn. 1998). “Moreover, though sometimes described as a constitutional right, in this State the right to instructions on lesser offenses actually derives from a statute, Tenn.Code Ann. § 40-18-110(a)(1997 Repl.).”
— Tenn. Code Ann. § 40-18-110(a) — 120 cases
State v. Ely, 48 S.W.3d 710 (Tenn. 2001). “HISTORICAL REVIEW OF LESSER-INCLUDED OFFENSES IN TENNESSEE Tennessee Code Annotated section 40-18-110 mandates giving an instruction on every offense "included" in an indictment.”
Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004). “See Tenn. Code Ann. § 40-18-110 (a) (1982). 10 5)Was the trial court’s ruling subject to deference on appeal? The trial court’s refusal to instruct the jury on second degree murder was not a ruling that was subject to deference on appeal.”
Rashe Moore v. State of Tennessee, 485 S.W.3d 411 (Tenn. 2016). “Acts 708 , 709 (codified as amended at Tenn. Code Ann. § 40-18-110 (2012)). The trial began just over a month later on February 11, 2002.”
State v. Reid, 91 S.W.3d 247 (Tenn. 2002). “Initially, we note that, in Tennessee, irrespective of a party's request for a lesser-included jury instruction, "[I]t is the duty of all judges charging juries in cases of criminal prosecutions for any felony .”
State of Tennessee v. Broderick Devonte Fayne, 451 S.W.3d 362 (Tenn. 2014). “Possession as a Lesser Included Offense of Employment In 2009, the General Assembly amended Tennessee Code Annotated section 40-18-110 to include a statutory definition of the term “lesser included offense.”
— Tenn. Code Ann. § 40-18-110(a)(1979) — 1 case
State v. Page, 184 S.W.3d 223 (Tenn. 2006). “The court opined that the 2001 amendment to Tennessee Code Annotated section 40-18-110, which provides that failure to request an instruction in writing waives the issue as grounds for a new trial or an appeal, was unconstitutional, abridging a defendant’s right to a jury trial.”
— Tenn. Code Ann. § 40-18-110(a)(1990) — 2 cases
State v. Elder, 982 S.W.2d 871 (Tenn. Crim. App. 1998).
Thomas Bradshaw v. State (Tenn. Crim. App. 1997).
— Tenn. Code Ann. § 40-18-110(b) — 19 cases
Carpenter v. State, 126 S.W.3d 879 (Tenn. 2004). “See Tenn. Code Ann. § 40-18-110 (a) (1982). 10 5)Was the trial court’s ruling subject to deference on appeal? The trial court’s refusal to instruct the jury on second degree murder was not a ruling that was subject to deference on appeal.”
State of Tennessee v. Rhakim Martin, 505 S.W.3d 492 (Tenn. 2016).
State of Tennessee v. Broderick Devonte Fayne, 451 S.W.3d 362 (Tenn. 2014). “Possession as a Lesser Included Offense of Employment In 2009, the General Assembly amended Tennessee Code Annotated section 40-18-110 to include a statutory definition of the term “lesser included offense.”
State v. Page, 184 S.W.3d 223 (Tenn. 2006). “The court opined that the 2001 amendment to Tennessee Code Annotated section 40-18-110, which provides that failure to request an instruction in writing waives the issue as grounds for a new trial or an appeal, was unconstitutional, abridging a defendant’s right to a jury trial.”
State v. Moore, 77 S.W.3d 132 (Tenn. 2002).
— Tenn. Code Ann. § 40-18-110(c) — 70 cases
State v. Page, 184 S.W.3d 223 (Tenn. 2006). “The court opined that the 2001 amendment to Tennessee Code Annotated section 40-18-110, which provides that failure to request an instruction in writing waives the issue as grounds for a new trial or an appeal, was unconstitutional, abridging a defendant’s right to a jury trial.”
State v. Vasques, 221 S.W.3d 514 (Tenn. 2007). “tate of Tennessee and certain of the defendants was for the purpose of determining (1) whether the evidence at trial was sufficient to support the convictions for conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school…”
State v. Rice, 184 S.W.3d 646 (Tenn. 2006). “Tenn.Code Ann. § 40-18-110 (emphasis added).”
Rashe Moore v. State of Tennessee, 485 S.W.3d 411 (Tenn. 2016). “Acts 708 , 709 (codified as amended at Tenn. Code Ann. § 40-18-110 (2012)). The trial began just over a month later on February 11, 2002.”
State v. Wilson, 211 S.W.3d 714 (Tenn. 2007).
— Tenn. Code Ann. § 40-18-110(c)(2002) — 1 case
State of Tennessee v. Abbigail Morton (Tenn. Crim. App. 2006).
— Tenn. Code Ann. § 40-18-110(d) — 10 cases
State of Tennessee v. John J. Ortega, Jr. (Tenn. Crim. App. 2015).
State of Tennessee v. Christopher S. Love (Tenn. Crim. App. 2006).
Brian Howard v. State of Tennessee (Tenn. Crim. App. 2026).
State of Tennessee v. Jeremy Wendell Thorpe (Tenn. Crim. App. 2013).
State of Tennessee v. Eric C. Turner & Robert Dee Scribner, II (Tenn. Crim. App. 2009).
— Tenn. Code Ann. § 40-18-110(e) — 1 case
State v. Rice, 184 S.W.3d 646 (Tenn. 2006). “Tenn.Code Ann. § 40-18-110 (emphasis added).”
— Tenn. Code Ann. § 40-18-110(f) — 29 cases
State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016). “Tenn. Code Ann. § 40-18-110 (2012). 2 Subsection (f) effectively codified parts (a) and (c) of the Bums test, while subsection (g)' clarified, as was the legislature’s prerogative, several lesser-included offenses.”
State of Tennessee v. Broderick Devonte Fayne, 451 S.W.3d 362 (Tenn. 2014). “Possession as a Lesser Included Offense of Employment In 2009, the General Assembly amended Tennessee Code Annotated section 40-18-110 to include a statutory definition of the term “lesser included offense.”
State of Tennessee v. Jeremy Wendell Thorpe, 463 S.W.3d 851 (Tenn. 2015).
State of Tennessee v. Zachary Michael Johnson (Tenn. Crim. App. 2017).
State of Tennessee v. Roy Daniel Mayo, II (Tenn. Crim. App. 2016).
— Tenn. Code Ann. § 40-18-110(f)(1) — 23 cases
State of Tennessee v. Broderick Devonte Fayne, 451 S.W.3d 362 (Tenn. 2014). “Possession as a Lesser Included Offense of Employment In 2009, the General Assembly amended Tennessee Code Annotated section 40-18-110 to include a statutory definition of the term “lesser included offense.”
State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016). “Tenn. Code Ann. § 40-18-110 (2012). 2 Subsection (f) effectively codified parts (a) and (c) of the Bums test, while subsection (g)' clarified, as was the legislature’s prerogative, several lesser-included offenses.”
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). “§ 40-18-110(g)(3) (stating aggravated sexual battery is a lesser included offense of aggravated rape); Tenn. Code Ann. § 40-18-110 (g)(4) (stating sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape); Tenn.”
State of Tennessee v. Jeremiah McDaniel (Tenn. Crim. App. 2022).
State of Tennessee v. Randall T. Beaty (Tenn. Crim. App. 2016).
— Tenn. Code Ann. § 40-18-110(f)(2) — 5 cases
State of Tennessee v. Jeffrey W. Tittle (Tenn. Crim. App. 2017).
State of Tennessee v. Alvin Brewer & Patrick Boyland (Tenn. Crim. App. 2014).
State of Tennessee v. Tapo T. Tabb & Douglas Ingram (Tenn. Crim. App. 2015).
State of Tennessee v. Michael C. Bolden (Tenn. Crim. App. 2017).
State of Tennessee v. Alex Goodwin & Joey Lee aka Joey Currie (Tenn. Crim. App. 2017).
— Tenn. Code Ann. § 40-18-110(f)(3) — 6 cases
State of Tennessee v. Jeremy Wendell Thorpe, 463 S.W.3d 851 (Tenn. 2015).
State of Tennessee v. James William Mabe (Tenn. Crim. App. 2017).
State of Tennessee v. David Eric Lambert (Tenn. Crim. App. 2020).
State of Tennessee v. Jeffery Newton (Tenn. Crim. App. 2014).
State of Tennessee v. Rusty L. Patterson (Tenn. Crim. App. 2025).
— Tenn. Code Ann. § 40-18-110(g) — 9 cases
State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016). “Tenn. Code Ann. § 40-18-110 (2012). 2 Subsection (f) effectively codified parts (a) and (c) of the Bums test, while subsection (g)' clarified, as was the legislature’s prerogative, several lesser-included offenses.”
State of Tennessee v. Paul Clifford Moore, Jr. (Tenn. Crim. App. 2016).
State of Tennessee v. Antonio Durham (Tenn. Crim. App. 2017).
State of Tennessee v. Dallas Jay Stewart (Tenn. Crim. App. 2013).
State of Tennessee v. David Lynn Harrison (Tenn. Crim. App. 2010).
— Tenn. Code Ann. § 40-18-110(g)(1) — 8 cases
State of Tennessee v. Brandon Scott Donaldson (Tenn. Crim. App. 2017).
Juan LaSean Perry v. State of Tennessee (Tenn. Crim. App. 2018).
State of Tennessee v. Telvin Toles (Tenn. Crim. App. 2019).
Montea Wilson (A.K.A. Marcus Floyd) v. State of Tennessee (Tenn. Crim. App. 2010).
— Tenn. Code Ann. § 40-18-110(g)(2) — 5 cases
State of Tennessee v. Paul Clifford Moore, Jr. (Tenn. Crim. App. 2016).
State of Tennessee v. Torvarius E. Mason (Tenn. Crim. App. 2019).
State of Tennessee v. Roger Earl England (Tenn. Crim. App. 2024).
State of Tennessee v. Angela Ayers (Tenn. Crim. App. 2015).
— Tenn. Code Ann. § 40-18-110(g)(3) — 6 cases
State of Tennessee v. Glen Howard, 504 S.W.3d 260 (Tenn. 2016). “Tenn. Code Ann. § 40-18-110 (2012). 2 Subsection (f) effectively codified parts (a) and (c) of the Bums test, while subsection (g)' clarified, as was the legislature’s prerogative, several lesser-included offenses.”
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). “§ 40-18-110(g)(3) (stating aggravated sexual battery is a lesser included offense of aggravated rape); Tenn. Code Ann. § 40-18-110 (g)(4) (stating sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape); Tenn.”
Eddie Medlock v. State of Tennessee (Tenn. Crim. App. 2016).
State of Tennessee v. Dallas Jay Stewart (Tenn. Crim. App. 2013).
State of Tennessee v. John J. Ortega, Jr. (Tenn. Crim. App. 2015).
— Tenn. Code Ann. § 40-18-110(g)(4) — 4 cases
Eddie Medlock v. State of Tennessee (Tenn. Crim. App. 2016).
State of Tennessee v. Lam Hoang Nguyen (Tenn. Crim. App. 2013).
State of Tennessee v. Dallas Jay Stewart (Tenn. Crim. App. 2013).
State of Tennessee v. Mahlon Johnson (Tenn. Crim. App. 2013).
— Tenn. Code Ann. § 40-18-110(g)(l) — 1 case
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012). “§ 40-18-110(g)(3) (stating aggravated sexual battery is a lesser included offense of aggravated rape); Tenn. Code Ann. § 40-18-110 (g)(4) (stating sexual battery and sexual battery by an authority figure are lesser included offenses of rape and aggravated rape); Tenn.”
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