Lesser Included Offenses in Georgia

The following chart contains a sample of some of the lesser included offenses that have been approved by the appellate courts. In Georgia, a crime may be a lesser included offense of a charged offense either as a matter of law, or as a matter of fact. A crime is a lesser included crime as a matter of law if the lesser offense contains the same, but fewer elements as the greater offense, or if the same conduct occurs with a less culpable state of mind. A crime may be a lesser included offense as a matter of fact if the facts shown at trial establish that some lesser offenses may have been all that was committed, regardless of whether the lesser offense contains certain elements that are not essential to the greater offense. OCGA §16-1-6. For example, voluntary manslaughter, as a matter of law, is a lesser included offense of murder; robbery is a lesser included offense as a matter of law of armed robbery; misdemeanor obstruction of an officer is a lesser included offense, as a matter of law, of felony obstruction of justice. As a matter of fact, child molestation may be a lesser included offense of rape; reckless conduct may be a lesser included offense of murder; theft by taking may be a lesser included offense of armed robbery.

There are three ways in which the issue of lesser included offenses may arise:

(1) the defendant may request a lesser included offense in order to provide the jury an option to avoid conviction on the greater offense; (2) the prosecutor may request a lesser included offense in order to provide the jury with a compromise verdict, to avoid acquittal on the greater offense; (3) convictions on both the greater offense and a lesser included offense are barred by double jeopardy clause.

With regard to lesser included offenses as a matter of law, either party may request such a charge to the jury if the facts would support a jury verdict finding the defendant guilty of the lesser offense. With regard to lesser included verdict option if the Indictment sets forth all the facts necessary to sustain a verdict on the lesser offense. The defendant, however, may request a charge on a lesser included offense regardless of whether the Indictment alleges all the essential elements, assuming again, that the evidence would support a verdict on that offense. Heggs v. State, 246 Ga.App. 354 (2000).

Finally, the proper way to instruct the jury on the lesser included offense option invokes considerations of the Edge v. State line of cases involving a sequential charge; and the cases that hold that the jury need not unanimously acquit the defendant of the greater charge before turning their attention to the lesser charge. Cantrell v. State, 266 Ga. 700 (1996); Kunselman v. State, 232 Ga.App. 323 (1998).

Examples include:

Crime

Lesser Included Offense

Authority

ARSON

Criminal Damage to Property Bryant v. State, 188 Ga.App. 505, 373 S.E.2d 289 (1988); Gunder v. State, 183 Ga.App. 122, 358 S.E.2d 284 (1987).

AGGRAVATED ASSAULT

Cruelty to Children Williams v. State,144 Ga.App. 130, 240 S.E.2d 890 (1977).
Reckless conduct Shaw v. State, 238 Ga.App. 757, 519 S.E.2d 486 (1999); Brewton v. State, 216 Ga.App. 346, 454 S.E.2d 558 (1998); Bowers v. State, 177 Ga.App. 36, 338 S.E.2d 457 (1985).
Simple battery Guevara v. State, 151Ga.App. 444, 260 S.E.2d 491 (1979); Fulton v. State, 232 Ga.App. 898, 503 S.E.2d 54 (1998).
Terroristic threats Messick v. State, 209 Ga.App. 459, 433 S.E.2d 595 (1993).
Involuntary Manslaughter Givens v. State, 184 Ga.App. 498, 361 S.E.2d 830 (1987).
Simple Assault Cordis v. State, 236 Ga.App. 629, 513 S.E.2d 45 (1999).
Obstruction of an Officer Holeman v. State, 226Ga.App. 879, 487 S.E.2d 700 (1997).
Pointing Weapon at Another Head v. State, 233 Ga.App. 655, 504 S.E.2d 499 (1998).

BATTERY

Simple Battery Hussey v. State, 206 Ga.App. 122, 424 S.E.2d 374 (1992).

BRIBERY

Violation of Oath of Office Nave v. State, 171 Ga.App. 165, 318 S.E.2d 753 (1988).

BURGLARY

Criminal Trespass Hiley v. State, 245 Ga.App. 900, 539 S.E.2d 530 (2000); Huffman v. State, 153 Ga.App. 203, 265 S.E.2d 603 (1980); Echols v. State, 222 Ga.App. 598, 474 S.E.2d 766 (1996); Sellers v. State, 164 Ga.App. 637, 298 S.E.2d 623 (1982).
Theft by taking Darden v. State, 165 Ga.App. 739, 302 S.E.2d 425 (1983).

CHILD MOLESTATION

Sexual Battery Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).
Sodomy Horne v. State, 192 Ga.App. 528, 385 S.E.2d 704 (1989).
Statutory Rape Andrews v. State, 200Ga.App. 47, 406 S.E.2d 801 (1991).

CRUELTY TO CHILDREN

Fighting words Shuler v. State, 195 Ga.App. 849, 395 S.E.2d 26 (1990).

DRUGS – POSSESSION WITH INTENT

Possession Talley v. State, 200 Ga.App. 442, 408 S.E.2d 463 (1991); Stephens v. State, 219 Ga.App. 881, 467 S.E.2d 201 (1996).

DRUGS – TRAFFICKING

Possession with intent and simple possession Lumpkin v. State, 245Ga.App. 627, 538 S.E.2d 514 (2000); Hancock v. State, 210 Ga.App. 528, 437 S.E.2d 610 (1993); Dalton v. State, 162 Ga.App. 7, 289 S.E.2d 801 (1982); Howard v. State, 220 Ga.App. 579, 469 S.E.2d 746 (1996).

DRUGS – SALE

Possession Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975).

FORGERY

Negotiating a fictitious check Adams v. State, 217 Ga.App. 759, 458 S.E.2d 918 (1995).

MURDER

Aggravated Assault Fetty v. State, 268 Ga. 365, 489 S.E.2d 813 (1997).
Armed Robbery Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).
Reckless conduct Reinhardt v. State, 263 Ga. 113, 428 S.E.2d 333 (1993).
Involuntary Manslaughter Brooks v. State, 262 Ga. 902, 426 S.E.2d 374 (1993); Chambers v. State, 205 Ga.App. 16, 421 S.E.2d 88 (1992).
Voluntary Manslaughter Swanson v. State, 216 Ga.App. 1, 453 S.E.2d 78 (1995).

FELONY MURDER

The underlying felony Jowers v. State, 259 Ga. 401, 382 S.E.2d 595 (1989).
Voluntary Manslaughter Young v. State, 141 Ga.App. 261, 233 S.E.2d 221 (1977); Woody v. State, 262 Ga. 327, 418 S.E.2d 35 (1992).

KIDNAPPING

Aggravated Assault Brown v. State, 247 Ga. 298, 275 S.E.2d 52 (1981).
Battery Holmes v. State, 229 Ga.App. 671, 494 S.E.2d 560 (1998).
False Imprisonment Sallie v. State, 216 Ga.App. 502, 455 S.E.2d 315 (1995); Ellis v. State, 181 Ga.App. 630, 353 S.E.2d 822 (1987).

OBSTRUCTION OF AN OFFICER (FELONY)

Obstruction (misdemeanor) O.C.G.A. §16-10-24(a).

RICO

Predicate Offenses Martin v. State, 189 Ga.App. 483, 376 S.E.2d 888 (1988).

RAPE

Assault with Intent to Rape Padgett v. State, 205 Ga.App. 576, 423 S.E.2d 411 (1992).
Simple Battery Johnson v. State, 195 Ga.App. 723, 394 S.E.2d 586 (1990).

RAPE (Continued)

Statutory Rape Wofford v. State, 226 Ga.App. 487, 486 S.E.2d 697 (1997).
Child Molestation Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988).

STATUTORY RAPE

Child Molestation Burgess v. State, 189 Ga.App. 790, 377 S.E.2d 543 (1989).
Incest McCranie v. State, 157 Ga. App. 110, 276 S.E.2d 263 (1981).

ROBBERY

Theft Smith v. State, 244 Ga.App. 667, 536 S.E.2d 561 (2000); Painter v. State, 237 Ga. 30, 226 S.E.2d 578 (1976); King v. State, 214 Ga.App. 311, 447 S.E.2d 645 (1994).

ARMED ROBBERY

Aggravated Assault Young v. State, 177 Ga.App. 756, 341 S.E.2d 286 (1986).
Theft by taking Pearson v. State, 216Ga.App.333, 454 S.E.2d 205 (1995); Tisdol v. State, 158Ga.App. 852, 282 S.E.2d 411(1981).
Robbery by intimidation Studdard v. State, 185Ga.App. 319, 363 S.E.2d 837 (1987).

SODOMY, AGGRAVATED

Sodomy Gagnon v. State, 240 Ga.App. 754, 525 S.E.2d 127 (2000); Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986).

THEFT BY TAKING

Criminal Trespass Dix v. State, 206 Ga.App. 429, 425 S.E.2d 419 (1992).

THEFT BY RECEIVING

Theft by taking Callahan v. State, 148 Ga.App. 555, 251 S.E.2d 790 (1978).

VEHICULAR HOMICIDE

DUI Duncan v. State, 183 Ga.App. 368, 358 S.E.2d 910 (1987); Chase v. State, 148 Ga.App. 690, 252 S.Ed.2d 194 (1979).
Vehicular homicide (2nd Deg.) Lefler v. State, 210 Ga.App. 609 (1993).