Lesser Included Offenses

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What is a lesser included offense?

A lesser included offense can be a defendant’s best friend, or worst enemy. A lesser included offense is a lesser offense than the original offense charged. Lesser offenses usually have a lesser sentence than the original offense. In Georgia, there are two types of lesser included offenses. One lesser included offense is by law, and the other is by fact.

O.C.G.A. § 16-1-6 provides:

An accused may be convicted of a crime included in a crime charged in the indictment or accusation.

A crime is so included when:

?(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; (Lesser included by law) or;

(2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. (Lesser included by fact).

Examples of Lesser Included Offenses:

An example of a lesser included offense by law is trespass and burglary. Trespassing is a lesser included offense of burglary. Why? Because burglary is defined as “without authority and with the intent to commit a felony or theft therein, he or she enters or remains within a dwelling”. O.C.G.A. § 16-7-1. Trespassing is defined as “knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.” O.C.G.A. §16-7-21.

The two crimes have the some of the same elements. First, the element of intent is needed. You must intentionally be on another’s property or dwelling. Second, you must be without authority. However, where these offenses differ is that burglary has an additional element. With burglary you must have intent to commit a felony therein. With trespassing you don’t have to commit a felony therein, by simply being on someone else’s property without authority, you are considered trespassing. See, e.g. Johnson v. State, 164 Ga. App. 429-430(1), 296 S.E.2d 775 (1982).

A lesser included offense by fact is slightly different. A lesser included offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial. Williams v. State, 255 Ga. App. 775, 566 S.E.2d 477 (2002). Simply put, a lesser included offense by fact occurs if the facts shown at trial establish that some lesser offense may have been all that was committed, or the greater offense simply cannot be proven.

For example, rape requires carnal knowledge of a female forcibly against her will. O.C.G.A. § 16-6-1. Sexual battery requires a physical contact with the intimate parts of another without consent. O.C.G.A. § 16-6-22.1. Technically, sexual battery cannot be a lesser included offense by law because they don’t have the same elements. However, depending on how the facts come out at trial, let’s say if the State can’t prove the carnal knowledge element of rape, and instead they can only show the physical contact element of battery. In that case, sexual battery by fact would be permitted because evidence at trial could show that no rape actually occurred.

Common Lesser Included Offenses:

  • Murder                    to                         Involuntary Manslaughter  

                                                                          Voluntary Manslaughter   

Brooks v. State, 262 Ga. 902, 426 S.E.2d 374 (1993;

Swanson v. State, 216 Ga. App. 1, 453 S.E.2d 78 (1995).


  • Aggravated Assault          to               Simple Assault

                                                                              Simple Battery

Fulton v. State, 232 Ga. App. 898, 503 S.E.2d 54 (1998);

Cordis v. State, 236 Ga. App. 629, 513 S.E.2d 45 (1999).


  • Battery                          to                      Simple Battery

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


  • Child Molestation            to             Sexual Battery

Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996).


  • Drug Possession               to         Simple Possession

      With Intent to Distribute

Stephens v. State, 219 Ga. App. 881, 467 S.E.2d 201 (1996).


The benefit of a lesser included offense?

Determining when to use a lesser included offense is tricky. Most prosecutors use the lesser included offense when they aren’t sure that they will get a conviction on the original offense. For example, if the charge is burglary, but the prosecution doesn’t believe he can prove beyond a reasonable doubt all the elements of burglary, he may add a lesser included offense to secure a conviction.

On the other hand, a defense attorney may use a lesser offense as a strategic mechanism to get his client acquitted of the original offense and only found guilty of a lesser offense with a lesser penalty. The defense may also want to object to a lesser included offense in some instances.  When the defense believes the State cannot prove their case beyond a reasonable doubt, the defense may object to a lesser included offenses being added. This is called an “all or nothing” defense. An all or nothing defense is when the jury is only left with choosing from the original offense or nothing at all. Scary right?

However, you must be careful when opting to include a lesser offense. In some instances, the jury likes to choose both, the original offense and the lesser included offense. When this happens, absent some special circumstances, the Judge can now sentence the defendant to both charges.

So now what?

Determining when to include a lesser included offense can be very tricky. The case law surrounding lesser included offenses is complex. Contact a trained legal professional, who understands each element of the law, to help make lesser- included offenses easier for you. Call Bixon Law today!



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