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State v. Burns11/8/1999
on of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
Part (a) of this test defines lesser-included offense using a statutory elements approach consistent with Howard. Part (b) of the test modifies the statutory elements test by creating two exceptions to the requirement that all the statutory elements of a lesser-included offense must be included within the statutory elements of the offense charged. Under part (b), the lesser-included offense may contain a statutory element or elements establishing: (1) a different mental state indicating a lesser kind of culpability, and/or (2) a less serious harm or risk of harm to the same person, property or public interest. While conceptually related to paragraph (c) of the Model Penal Code test, part (b) of our test is narrower in that the statutory elements remain the focus of the inquiry. Part (c) of the test specifically includes the inchoate offenses of facilitation, attempt, and solicitation as lesser-included offenses when the evidence in the case would support a conviction for those offenses. The structure of our Code indicates that the Legislature viewed these as lesser offenses of the specific crime charged. See Tenn. Code Ann. § 39-11-403 (1991) (facilitation of a felony is an offense of the classification next below the felony facilitated by the person so charged); Tenn. Code Ann. § 39-12-107 (1991) (criminal attempt is an offense one classification lower than the most serious crime attempted; solicitation is an offense two classifications lower than the most serious offense solicited). We choose to include these offenses in our definition so as to provide clear, comprehensive guidance for our trial courts to use in their determination of lesser-included offenses.
Having stated the test for determining whether a particular offense is a lesser-included offense of another, we must acknowledge that our inquiry continues. Whether a lesser-included offense must be charged in a jury instruction is a two-part inquiry. First, the trial court must apply the new test to determine whether a particular lesser offense is included in the greater charged offense. If a lesser offense is not included in the offense charged, then an instruction should not be given, regardless of whether evidence supports it. If, however, the trial court concludes that a lesser offense is included in the charged offense, the question remains whether the evidence justifies a jury instruction on such lesser offense.
Although section 110(c) appears to mandate jury instructions on all offenses included in an indictment regardless of whether evidence in the record supports such a charge, this Court has consistently required some factual basis for submitting an instruction on an included offense to the jury. See State v. Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990); State v. Mellons 557 S.W.2d 497, 499 (Tenn. 1977). The mere existence of a lesser offense to a charged offense is not sufficient alone to warrant a charge on that offense. Whether or not a particular lesser-included offense should be charged to the jury depends on whether proof in the record would support the lesser charge.
This case presents this Court with the opportunity to clarify when instructions on lesser-included offenses should be given. The Model Penal
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