What is a Lesser Included Offense and Why Does it Matter?

A lesser included offense is a crime that is “contained within” a greater crime – the greater crime has all the elements of the lesser crime.

If there is a lesser included offense available that carries a lower penalty than the charged offense, it matters because 1) the prosecutor may offer the lesser included offense in exchange for a guilty plea, or 2) a jury may find a person guilty of the lesser included offense instead of the offense charged (resulting in a substantially lower penalty range).

How do you know when there are lesser included offenses that are available in any given case? Below, we’ll discuss the “elements test” used by the SC Supreme Court and take a look at some specific crimes where lesser included offenses are commonly used both in plea bargaining and trials.

The Elements Test Determines if a Crime is a Lesser Included Offense

SC Supreme Court opinions like State v. Watson have made it clear that SC Courts should use the “elements test” to determine whether a crime is a lesser included offense, and, if there is any evidence at trial that would support a conviction on the lesser offense, the trial court must give the jury the option of convicting on the lesser offense:

The trial judge is to charge the jury on a lesser included offense if there is any evidence from which the jury could infer that the lesser, rather than the greater, offense was committed. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). The primary test for determining if a particular offense is a lesser included of the offense charged is the elements test. State v. Elliott, 346 S.C. 603, 552 S.E.2d 727 (2001). The elements test inquires whether the greater of the two offenses includes all the elements of the lesser offense. State v. McFadden, 342 S.C. 629, 632, 539 S.E.2d 387, 389 (2000).

One (rare) exception is, “where an offense has traditionally been considered a lesser included offense of the greater offense charged, we will continue to construe it as a lesser included, despite the failure to strictly satisfy the elements test.”

Another related exception is when SC law specifically says that one offense is a lesser included offense of another, even though the elements are not the same – for example, attempted murder and assault and battery charges…

Attempted Murder and Assault and Battery Charges

Assault and battery of a high and aggravated nature (which carries up to 20 years) is a lesser included offense of attempted murder (which carries up to 30 years), whether or not it meets the elements test because SC Code Section 16-3-600 says it is a lesser included offense.

Similarly, assault and battery in the first degree (which carries up to ten years) is a lesser included offense of assault and battery of a high and aggravated nature and attempted murder, because the statute says so:

Assault and battery in the first degree is a lesser-included offense of assault and battery of a high and aggravated nature, as defined in subsection (B)(1), and attempted murder, as defined in Section 16-3-29.

This is so, even though all elements of assault and battery first degree are not required for an attempted murder conviction – for example, you could be convicted of A/B first degree for injuring a person while touching their private parts without consent.

The same is true of each decreasing level of assault and battery:

  • Assault and battery of a high and aggravated nature is a lesser included offense of attempted murder,
  • Assault and battery first degree is a lesser included offense of assault and battery of a high and aggravated nature and attempted murder,
  • Assault and battery second degree is a lesser included offense of assault and battery first degree, assault and battery of a high and aggravated nature, and attempted murder, and
  • Assault and battery third degree is a lesser included offense of assault and battery second degree, assault and battery first degree, assault and battery of a high and aggravated nature, and attempted murder.

Why does it matter? Assault and battery third degree carries no more than 30 days in jail, while attempted murder carries up to 30 years in prison.

CSC – Criminal Sexual Conduct Charges

On the other hand, 3rd-degree rape is not a lesser included offense of 1st-degree rape, because 1) the statute does not specify that it is, and 2) it does not pass the elements test.

As the SC Supreme held in State v. McFadden:

Under S.C. Code Ann. § 16-3-652 (1) (1985), first degree CSC requires a (1) a sexual battery and (2) aggravated force or forcible confinement, kidnapping, robbery, extortion, burglary, housebreaking, or “any other similar offense or act.” Pertinent to the facts of this case, under § 16-3-654(1)(b), third degree CSC requires (1) a sexual battery in the absence of aggravated force or coercion; (2) the victim is mentally defective; and (3) the actor knows or has reason to know the victim is mentally defective. These last two elements of § 16-3-654(1)(b) are not elements included in CSC first. We therefore conclude third degree CSC under § 16-3-654(1)(b) is not a lesser included offense of first degree CSC.

The Court reversed McFadden’s conviction for CSC 3rd degree because he was indicted and tried for CSC 1st degree, the trial judge charged CSC 3rd degree as a lesser included offense over his objection, and the jury found him guilty of CSC 3rd degree.

In other words, the state accused him of forcible rape, but then asked the jury to convict him of rape because the alleged victim was incapable of consent. They are not allowed to change the accusations in the middle of trial, and, if they wanted a conviction for CSC 3rd degree, they should have charged him with CSC 3rd degree…

Burglary and Trespass

The SC Court of Appeals has held that trespass is not a lesser included offense of burglary in SC, because, although both require entering without consent, trespass has the additional requirement of notice:

First degree burglary requires the entry of a dwelling without consent with the intent to commit a crime therein, as well as the existence of an aggravating circumstance. S.C.Code Ann. § 16-11-311 (Supp.1993). Statutory criminal trespass involves either (1) the entry of a dwelling house, place of business or the premises of another within six months after being warned against such entry or (2) the failure to leave a dwelling house, place of business or premises of another after having been requested to leave. S.C.Code Ann. § 16-11-620 (1976).

Drug Crimes

One of the most common uses of lesser included offenses, both in plea bargaining and at trial, is probably in the context of drug crimes.

Possession-based drug crimes, including simple possession, possession with intent to distribute, and trafficking (unless the trafficking charges are based on conspiracy), contain lesser included offenses based on the weight of the drugs found. For example:

  • Simple possession of an ounce or less of marijuana (30 days) is a lesser included offense of possession with intent to distribute (PWID) marijuana (up to five years) – PWID contains all elements of simple possession plus the intent to distribute.
  • PWID cocaine (up to 15 years), which is often charged if a person has more than a gram of cocaine in their possession, is a lesser included of trafficking cocaine > 400 grams (up to 30 years).
  • Distribution of cocaine is not a lesser included offense of trafficking cocaine, because distribution has the additional element of transferring the drug to someone else which is not an element of drug trafficking in SC.

Lesser Included Offense or Reduced Charge?

Plea bargains entered into before trial often include an offer of “reduced charges” that are technically not a lesser included offense – for example, a prosecutor may offer a plea to reckless driving in exchange for dismissing a DUI charge.

In this case, reckless driving is not a lesser included offense so the prosecutor must 1) dismiss the DUI ticket and 2) write a new ticket for reckless driving.

Although this is common in plea bargaining before trial, the jury at trial does not have the option of finding a defendant guilty of reckless driving unless the defendant was charged with reckless driving.

The jury could find a defendant guilty of the lesser included offense of DUI with no breathalyzer result instead of DUI with a breathalyzer result of .16 or greater because the greater offense has all elements of the lesser offense except for the increased breathalyzer result.

Criminal Defense Attorney in Charleston, SC

Charleston criminal defense lawyer Grant B. Smaldone focuses on criminal defense cases – we will get your case dismissed, find an outcome that is acceptable to you, or try your case to a jury. Whether it is in the context of pretrial negotiations or a jury trial, lesser included offenses might be an important consideration in your case.

If you have been charged with a crime in the Charleston area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.


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