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Lesser-Included Offenses

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CaseRashe Moore v. State of Tennessee

Issue:  Should the trial court have instructed on the lesser-included offense of Aggravated Kidnapping, where the Defendant was tried for Especially Aggravated Kidnapping for holding victims at gunpoint?

Facts:  Defendant was tried for multiple counts of Especially Aggravated Kidnapping (among other offenses) after robbing and raping several victims at gunpoint. He presented a defense that he was not the culprit of the offenses. The trial court declined to instruct the jury as to any lesser-included offenses on the basis that the defense was that the Defendant had simply not been present during the crime, rather than that the charged offenses did not occur.

Appellate Decision:  In a 2-1 decision, the intermediate court held that the trial court committed reversible error in failing to instruct the jury on Aggravated Kidnapping as a lesser-included offense of Especially Aggravated Kidnapping. The higher charge requires the kidnapping to be “accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon” while the lower charge requires only that the defendant be “in possession of a deadly weapon or threatens the use of a deadly weapon.”

The court held that the evidence as to the firearm usage by the Defendant raised a meaningful distinction in “the very nuanced differences in the elements” between the greater and the lesser offense. Judge Page, concurring, disagreed that a reasonable jury would have convicted on aggravated kidnapping because the evidence clearly showed the Defendant “used” a firearm to accomplish the kidnapping (rather than simply possessing or threatening with it).

Review Granted:  April 13, 2015.

Prediction:  David thinks the Supreme Court will reverse—this is the classic “all or nothing” case. Ben thinks the Supreme Court will affirm. In addition to the clearly “nuanced” distinctions between the offenses at issue, the Supreme Court has repeatedly recognized that juries are “free to reject any evidence offered by the State, no matter how uncontroverted or uncontested a particular fact or element may appear.” When the elements are this close, courts should virtually always instruct on the lesser offense.