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). |