Ohio Criminal Appeals Lawyer Blog

Trial judges should instruct the jury on a lesser-included offense upon the request of a defendant, "if the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense." The Second District Court of Appeals reversed a conviction for aggravated burglary because the trial judge refused to instruct the jury on the lesser included offense of criminal trespass where the defendant testified and his version of events supported an acquittal on aggravated burglary and a conviction of trespass, and it was up to the jury to decide who to believe. Read the decision in State v. Lawson, 2010-Ohio-3114, by clicking here.

Today the Ohio Supreme Court, in State v. Evans, altered the "Deem Test" used to determine whether an offense is a lesser included offense of another. The Court stated the new test as follows:

"[A] court shall consider whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be combined without the lesser offense as statutorily defined also being committed."

The Court also determined that:

robbery as defined in
R.C. 2911.02(A)(2) is a lesser included offense of
aggravated robbery as defined in
R.C. 2911.01(A)(1).