LESSER INCLUDED OFFENSES - AS APPROPRIATE
The defendant is charged with [Crime Charged In the Information/ Indictment]. You are instructed that, in addition to evidence concerning the crime of [Crime Charged in the Information/Indictment], evidence has also been introduced concerning the crime of [Lesser Included Crime]. No person may be convicted of [Lesser Included Crime] unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
[Give Elements of Lesser Included Crime.]
If you have a reasonable doubt of the defendant's guilt of the charge of [Crime Charged In the Information/Indictment], you must then consider the charge of [Lesser Included Crime].
[Give Only If Needed for Other Lesser Included Offenses.]
[You are instructed that, in addition to the evidence concerning the crime of [Crime Charged In the Information/Indictment] evidence has been introduced concerning the crime of [First Included Crime], and evidence has also been introduced concerning the crime of [Second Included Crime].
If you have a reasonable doubt of the defendant's guilt on the charges of [List Crime Charged In the Information and First Included Crime], you must then consider the charge of [Second Included Crime]. No person may be convicted of [Second Included Crime] unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: [Give Elements of Second Included Offense.]
[Repeat Pattern As Needed for Additional Included Offenses]
You are not required to determine unanimously that the defendant is not guilty of the crime charged before you consider a lesser included offense. If you have a reasonable doubt as to which offense the defendant may be guilty of, you may find him/her guilty only of the lesser offense. if you have a reasonable doubt as to the guilt of the defendant on all such offenses, you must find him/her not guilty of any crime.
If you find the defendant guilty of any of the above named crimes, you shall then determine the proper punishment.
The crime of [Crime Charged in the Information/Indictment] is punishable by [State Range of Punishment].
The crime of [First Included Crime] is punishable by [State Range of Punishment].
The crime of [Second Included Crime] is punishable by [State Range of Punishment].
[Repeat As Needed for Additional Included Crimes]
When you have decided on the proper punishment, you shall fill in the appropriate space on the Verdict Form and return the verdict to the Court.
Notes on Use
A Verdict Form for 2 Lesser Included Offenses is provided in OUJI-CR 10-25 below.
Former OUJI-CR 10-27 is incorporated into this instruction in order to avoid the problem that was notes by the Oklahoma Court of Criminal Appeals in Graham v. State, 2001 OK CR 18 , 27 P.3d 1026. In addition, the instruction clarifies that the jury does not have to unanimously acquit the defendant of the chraged offense before considering lesser included offenses.
The statute governing lesser included offenses is 22 O.S. 2001, § 916, which provides: "The jury may find the defendant guilty of any offenses, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." In addition, 22 O.S. 2001, § 915 provides: "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.
Over the years, the Oklahoma Court of Criminal Appeals has used a variety of approaches to determine which crimes are lesser included offenses of other crimes. Shrum v. State, 1999 OK CR 41, ¶ 7, 991 P.2d 1032 , 1035. In the Shrum case, the Oklahoma Court of Criminal Appeals formally adopted the evidence test to determine what constitutes a lesser included offense of a charged crime. Under the evidence test, the court looks to the evidence proved at trial in addition to the statutory elements of the crimes and the allegations in the indictment or information, to decide whether to give a jury instruction on a particular lesser included offense. See also Childress v. State, 2000 OK CR 10, ¶¶ 21-25, 1 P.3d 1006 (following Shrum in applying the evidence test). The Court provided the following direction to trial courts as to how to apply this test:
In practice, if the trial court sua sponte proposes the lesser included offense instruction that is supported by the evidence and the defendant objects, the defendant shall have the right to affirmatively waive any lesser included offense instruction that the evidence supports and proceed on an "all or nothing approach." [Citation omitted.] If the State requests the lesser included offense instruction and the defendant objects, the trial court should review the Information together with all material that was made available to the defendant at preliminary hearing and through discovery to determine whether the defendant received adequate notice that the State's case raised lesser related offenses that should be deemed included. [Footnote 9. If a witness' testimony materially changes at trial which gives rise to evidence of a lesser offense of which the defendant did not have notice, the State's requested instruction should be declined. To avoid such problems, prosecutors may elect to charge the accused in the alternative pursuant to 22 O.S.1991, § 404.] [Citation omitted.] However, if the trial court proposes or the State requests the lesser included offense instruction and the defense does not object, we will presume the defendant desired the lesser included offense instruction as a benefit.
Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036-37.
Examples of the application of the evidence test are found in the Shrum and Childress cases, supra. The Court of Criminal Appeals ruled in the Shrum case that the trial court did not err in giving a jury instruction on first degree heat of passion manslaughter in a case where the defendant was charged with first degree malice murder and the defendant had not objected to the instruction at the trial. The Court of Criminal Appeals followed Shrum in Childress v. State, supra, where it ordered a new trial because the trial court refused to give instructions that the defendant had requested on a lesser related offense. The defendant in the Childress case was charged with first degree malice murder and larceny of a domestic animal. Although the elements of second degree felony murder are not contained in the elements of first degree malice murder, the Court of Criminal Appeals held that the defendant was entitled to an instruction on second degree felony murder because larceny of a domestic animal is a predicate felony for second degree felony murder, and there was sufficient evidence presented at trial to support an instruction for second degree felony murder. 2000 OK CR 10, ¶ 25, 1 P.3d at 1012-13.
In addition, if a crime is divided into degrees and the evidence at trial tends to prove a lesser degree of the crime than the charged crime, the jury should be instructed on the lesser degree of the crime. E.g., Brown v. State, 1983 OK CR 174, ¶ 6, 674 P.2d 46, 47.