WPIC 4.11 Lesser Included Crime or Lesser Degree

Use this instruction when the evidence would allow conviction of a lesser included crime, whether that be a lesser degree of the same crime or a lesser included crime with a different name. See discussion in the Comment.

Along with this instruction, use WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included Crime/Attempt), and the applicable special verdict forms from WPIC 180.01 (Verdict Form A—General), WPIC 180.05 (Verdict Form B—Lesser Degree/Lesser Included/Attempt), and WPIC 180.06 (Verdict Form C—Lesser Degree—Three Degrees).

In order to have a complete set of instructions, there must be a separate elements instruction setting out what must be proved to convict a defendant of the lesser included crime or lesser degree.

RCW 9A.04.100(2); RCW 10.61.003; RCW 10.61.006; RCW 10.58.020.

Lesser included crimes and lesser degree crimes. This instruction explains the proper sequence of the jury's decisions when considering a lesser offense. The instruction applies regardless of whether the crime is a lesser degree crime or a lesser included crime. In either instance, the framework for juror decision-making is the same. It is only in other regards that the law distinguishes between lesser degree crimes and lesser included crimes. See State v. Tamalini, 134 Wn.2d 725, 730–35, 953 P.2d 450 (1998) (distinguishing between lesser included crimes and lesser degree crimes with respect to the judge's threshold test for deciding whether to instruct the jury about a lesser crime); see also State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).

Lesser included offenses—analysis. The test for analyzing lesser included offenses is traditionally stated as follows: “First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.” State v. Workman, 90 Wn.2d 443, 447–48, 584 P.2d 382 (1978) (citations omitted). Additionally, “the lesser offense must arise from the same act or transaction supporting the greater charged offense ….” State v. Porter, 150 Wn.2d 732, 738, 82 P.3d 234 (2004). If the charged offense is based on multiple alternatives, the lesser offense only needs to be included in one of those alternatives. State v. Berlin, 133 Wn.2d 541, 547–48, 947 P.2d 700 (1997); State v. Condon, 182 Wn.2d 307, 318, 343 P.3d 357 (2015).

The Workman test requires a factual showing that is “more particularized” than the sufficient evidence standard that otherwise applies to jury instructions. State v. Porter, 150 Wn.2d at 737.

State v. Porter, 150 Wn.2d at 737 (quoting State v. Fernandez-Medina, 141 Wn.2d at 456; other citations omitted). In applying this test, the court should view the evidence in the light most favorable to the party requesting the lesser included offense instruction. State v. Condon, 182 Wn.2d at 321.

Lesser degree offenses—analysis. The test for lesser degree offenses is whether: “(1) the statutes for both the charged offense and the proposed inferior degree offense ‘proscribe but one offense’; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.” State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997) (quoting State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979)). The factual (third) component of this test is the same as the factual component of the Workman test for lesser included instructions. State v. Fernandez-Medina, 141 Wn.2d at 455.

Unlike a lesser included offense, a lesser degree offense may have an element that is not an element of the greater offense. For example, second degree assault (by torture) is an inferior degree offense for first degree assault (by inflicting great bodily injury), even though the lesser degree offense has an element that is not a part of the greater degree offense and thus does not qualify as a lesser included offense. State v. Peterson, 133 Wn.2d at 891–92.

Request for instruction. Either party may request an instruction on a lesser crime, State v. Lyon, 96 Wn.App. 447, 450, 979 P.2d 926 (1999), and the court may give such an instruction on its own motion. State v. Rhinehart, 92 Wn.2d 923, 927, 602 P.2d 1188 (1979). If the instruction is requested by the defendant in an appropriate case, it is reversible error to refuse to give the instruction. State v. Parker, 102 Wn.2d 161, 683 P.2d 189 (1984).

In State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011), the court stated that the decision to submit lesser included offense instructions rested with defense counsel but only after fully consulting with the defendant.

If not requested by either party, however, the failure to give a lesser offense instruction is not reversible error. State v. Hoffman, 116 Wn.2d 51, 111–12, 804 P.2d 577 (1991); State v. Mak, 105 Wn.2d 692, 747, 718 P.2d 407 (1986), overruled in part on other grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994). The judge is not required to instruct the jury sua sponte on all lesser offenses particularly over a defendant's express objections. State v. Hoffman, 116 Wn.2d at 111–12.

Statute of limitations as to lesser offense. The statute of limitations for a lesser included offense is frequently shorter than the statute of limitations for the charged offense. A defendant can waive any objections to timeliness for lesser offenses when the statute of limitations has not yet run on the charged offense. State v. Peltier, 181 Wn.2d 290, 297, 332 P.3d 457 (2014).

Instruction's final paragraph. The instruction's final paragraph is required by State v. Stationak, 73 Wn.2d 647, 440 P.2d 457 (1968).

Cross-references. For a more detailed analysis of the law relating to lesser included and lesser degree offenses, see Fine, 13A Washington Practice, Criminal Law and Sentencing § 1:10 (3d ed.). Additionally, lesser offense issues for specific crimes are discussed in Comments throughout 11 and 11A Washington Practice, Washington Pattern Jury Instructions: Criminal (5th ed.).