Lesser Included Offenses, Juries, and Legal Impossibilities

[Captain_Amazing]

Lets say there’s a jurisdiction out there that has two crimes, mopery and dopery.

Mopery is defined as “Walking down a public street with no clear destination”. Dopery is defined as “Walking down a public street with no clear destination between the hours of midnight and 5 am.”

A person is brought to trial on the charges of both mopery and dopery. The jury finds him guilty of dopery, but not guilty of mopery. What happens in that situation?

[Keeve]

I don’t see how it would be possible.

[Askance]

The judge certainly should have directed the jury that such a combination of findings was not possible. If the judge did not so direct the accused would have a cause to appeal.

[AK84]

I would say an easier example would be robbery and theft. To committ robbery, you have to committ all the elements of theft AND use force. A jury could find you not guilty of robbery, because they were not convinced that you used force, but satisfied that all the elements of therft were present. This is called “charged alternativly”. Depending on the procedural issues, and this varies according to jurisdiction the judges leave may be needed.

In the example above, well to even be on the indictment, the actions must have formed part of a series of similar actions or arise from the same fact. Otherwise the whole indictment would be defective. In this case you can’t charge him with both, since from what I read, the action was done at the same time; unless its in the alternative.

[Derleth]

If Beryl_Mooncalf comes back, I say we scrag 'im.

[Polycarp]

If I am not mistaken, a judge’s charge to the jury generally addresses the “lesser included offense” issue. A jury will make a finding on a lesser included offense only if they acquit on the “greater including offense” than which the LIO is lesser than and included in. A judge or trial lawyer, however, would need to address this.

[zut]

@Derleth

If Beryl_Mooncalf comes back, I say we scrag 'im.

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[Northern_Piper]

I think the OP is assuming that dopery is a lesser included offence because it can only occur at specific times, while mopery is the greater offence because it can be committed at any time. However, I don’t think that’s necessarily accurate. The concept of the lesser offence is not that mathematical - it’s tied to the nature of the prohibited conduct, and also to the sentences for the two offences.

I would argue that dopery is the greater offence, because it takes place at night, during a time people tend to be more vulnerable, whether in their homes or on the street, because most people are abed at that time and the darkness makes criminal behaviour more easy to obscure.

To illustrate this point, suppose you’re walking alone on the street in broad daylight and you see someone strolling towards you. Does that trigger the same concern about your personal safety that it would if you’re walking alone on a street at 1 a.m. and you see someone coming towards you? From a public safety perspective, it seems to me that dopery is aimed at the more serious situation, not mopery.

Also, how has the legislature dealt with the punishment for the offences? Has the legislature given the same sentence for mopery and dopery, or has it given a higher sentence for one over the other? If one offence has a higher sentence attached to it, that helps to show which is the lesser offence.

[Mince]

@Derleth

If Beryl_Mooncalf comes back, I say we scrag 'im.

Oh man. I’m pretty sure Beryl was a community college Paralegal program failure who retained a catolog (but not an understanding) of some of the colorful language and concepts contained therein.

[Captain_Amazing]

@Northern_Piper

I think the OP is assuming that dopery is a lesser included offence because it can only occur at specific times, while mopery is the greater offence because it can be committed at any time. However, I don’t think that’s necessarily accurate. The concept of the lesser offence is not that mathematical - it’s tied to the nature of the prohibited conduct, and also to the sentences for the two offences.

No, mopery is the lesser included offense, as I understand it, because the commission of mopery is inherent in the commission of dopery. To convict someone of dopery, the following three conditions have to be proved:

1. The person was walking down a public street.
2. The person had no clear destination.
3. The action took place between midnight and 5 am.

To convict someone of mopery, conditions 1 and 2 must be proved. So anyone who is guilty of dopery is also, by definition, guilty of mopery. Or to use AK84’s real life example, anyone who is guilty of robbery is also therefore guilty of theft.

[Northern_Piper]

Then the point of your OP is why isn’t the accused convicted of the two offences, not just dopery?

I can’t speak for how it would work in the U.S., but in Canada, that would breach the principle against double convictions for the same set of facts - not double jeopardy, but a variant of it. The police lay the more serious charge, and that’s what the Crown will proceed with, if the evidence supports it. It would be unfair to the accused to convict of two offences with common elements when it’s just one action in issue.

In this case, the charge would be dopery. There would be no need to also charge with mopery, since that is the lesser included offence. If the Court convicts on the dopery charge, it will not convict the accused of mopery, because that would be unfair to the accused. That’s how I read the example you gave in your OP.

If the Court concludes that one of the common elements to the two offences has not been proven (e.g. - the accused testifies that he had a clear destination and the Court accepts that testimony), there would be no need to consider the lesser included offence of mopery, since proof of a clear destination would also be a defence to mopery.

It’s only if the Court dismisses the dopery charge on the element specific to that charge (e.g. - the Court is satisfied that the events actually occurred at 5.30 a.m.), would it consider the mopery charge. If it’s satisfied that the Crown has proven the common elements, just not the time, then it would convict on the mopery charge.

Similarly, manslaughter is normally defined as a lesser included offence to murder. If the Court convicts on a murder charge, it won’t convict on manslaughter. On the robbery/theft example given by AK84, if the court convicts on robbery, it won’t convict on theft.

Does that respond to your issue?

[Gfactor]

A few cases:

RALPH FAYSON,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
No. 89,554
[August 28, 1997]

OVERTON, J.

We have for review Fayson v. State , 684 So. 2d 270 (Fla. 1st DCA 1996), which certified conflict with Sgroi v. State , 634 So. 2d 280 (Fla. 4th DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the decision of the district court in this case and disapprove the contrary reasoning found in Sgroi .

The record reflects the following facts. Ralph Fayson was charged with burglary of a dwelling with a battery, false imprisonment, aggravated assault, and aggravated battery. These charges arose from events that occurred on the evening of August 26, 1994. That night, Fayson forced himself into his former girlfriend’s apartment. When she refused to talk with him, he choked her, grabbed her hair, and took her to the kitchen. In the kitchen, he held a knife to her neck and beat her with his fist. He then took her to the bedroom and sat on top of her. He cut her throat with the knife several times. Finally, he dragged her into the living room and broke a beer bottle over her head. She blacked out briefly. When she awoke, Fayson threatened to kill her. She was able to escape.

The jury found Fayson guilty of (1) burglary (a lesser included offense of the charge of burglary of a dwelling with a battery); (2) false imprisonment; (3) aggravated assault; and (4) aggravated battery. Fayson appealed. He argued that two of his convictions were inconsistent and one should be vacated. Specifically, he claimed that the jury rejected the greater offense of burglary of a dwelling with a battery by finding him guilty of burglary. Because of that finding, he explained, the jury verdict of guilty of aggravated battery was inconsistent and must be set aside.

The district court affirmed the convictions, reasoning that in “the instant case the finding of guilt on a charge of burglary with a battery was not necessary to the charge of aggravated battery.” Fayson , 684 So. 2d at 272. The court further explained that the “aggravated battery conviction is not dependent on a finding of battery as an aggravator in a burglary with a battery charge, i.e, the conviction on the lesser included offense did not negate a necessary element of the aggravated battery conviction.” Id. at 272-73. That court then certified conflict with the Fourth District Court of Appeal’s decision in Sgroi v State , 634 So. 2d 280 (Fla. 4th DCA 1994).

In State v. Powell , 674 So. 2d 731, 732-33 (Fla. 1996), this Court explained the principles of law applicable to inconsistent jury verdicts, stating:

As a general rule, inconsistent jury verdicts are permitted in Florida. Eaton v. State , 438 So. 2d 822 (Fla. 1983); Goodwin v. State , 157 Fla. 751, 26 So. 2d 898 (1946); Gonzalez v. State , 440 So. 2d 514 (Fla. 4th DCA 1983), review dismissed , 444 So. 2d 417 (Fla. 1983). Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. . . .

This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the “true” inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent. As Justice Anstead explained when writing for the Fourth District Court of Appeal in Gonzalez , true inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.” 440 So. 2d at 515. For example, this Court has required consistent verdicts when

the underlying felony is a part of the crime charged–without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.

Eaton , 438 So. 2d at 823; see Mahaun v. State , 377 So. 2d 1158 (Fla. 1979)(verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony); Redondo v State , 403 So. 2d 954 (Fla. 1981)(defendant could not be convicted of unlawful possession of a firearm during a commission of felony where the jury failed to find the defendant guilty of any felony). An exception to the general rule is warranted when the verdicts against a single defendant are truly inconsistent because the possibility of a wrongful conviction in such cases outweighs the rationale for allowing verdicts to stand.

Fayson argues that the jury’s failure to find the aggravating factor of battery in his burglary-of-a-dwelling conviction (the lesser included offense) was inconsistent with its finding that he was guilty of aggravated battery. Essentially, Fayson claims that the jury acquitted him of battery when it found only the lesser included offense of burglary of a dwelling. Fayson argues that battery is a necessary element of aggravated battery and, consequently, asserts that his conviction for aggravated battery must be vacated. We disagree.

There is a reasonable explanation for the verdicts in that the jury could have factually distinguished the charges in this case by concluding that when Fayson first entered the premises he had only committed a burglary and at that time he had no intent to commit a battery. As the facts of this case unfolded, the jury could have logically concluded that the aggravated battery came after and separate from the burglary.

We find that the district court correctly applied the rule enunciated in Powell to this jury’s verdicts. We approve the district court’s holding and its conclusion that the convictions were not legally inconsistent.

We also agree with the district court that the decision in Sgroi conflicts with this case. In Sgroi , the Fourth District Court of Appeal dealt with an almost identical factual situation and stated:

In Count I, the state charged appellant with burglary of the dwelling of Renee Kish with intent to commit the offense of battery therein “and in the course thereof did commit a battery upon Renee Kish by actually and intentionally touching or striking her against the will of Renee Kish.” Thus, Count I charges both the intent to commit a battery and the completion of the battery. The jury returned a verdict of not guilty of burglary with a battery (a first degree felony). It found appellant guilty of the second degree felony of burglary of a dwelling. In Count II, appellant was charged with committing aggravated battery on Renee Kish in that he did “unlawfully and intentionally touch or strike Renee Kish against her will with a deadly weapon, to wit: a metallic pipe.” The jury found appellant guilty of Count II. As appellant correctly notes, either he committed a battery on Renee Kish, or he did not. We hold that the verdicts are inconsistent and therefore must be vacated.

634 So. 2d at 282-3 (footnote omitted). We reject that analysis.

Accordingly, we approve the decision of the district court in the instant case and disapprove Sgroi to the extent that it conflicts with this opinion.

It is so ordered.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fl&vol=alpha9708\week4\fayson_v_st_89554&invol=2

Defendant argues that his robbery conviction cannot stand because it was wholly inconsistent with his acquittal of the felony-murder charge. Here, the jury likely found defendant guilty of afterthought robbery which has not been recognized at this point as part of the law of this State.

Defendant acknowledges that consistency in verdicts are neither necessary nor required. Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed.2d 590 (1974); State v. Grey, 147 N.J. 4, 9-10 (1996). Likewise, inconsistent verdicts do not vitiate an otherwise reasonable verdict. See State v. Banko, 182 N.J. 44, 53 (2004); State v. Petties, 139 N.J. 310, 319 (1995). Nevertheless, where an acquittal of one count precludes the finding of an element of another offense, such inconsistency may be fatal. State v. Ortiz, 253 N.J. Super. 239, 245 (App. Div.), certif. denied, 130 N.J. 6 (1992).

The jury was instructed that to find defendant guilty of felony-murder, it must have concluded that the victim’s death occurred during the commission of an attempt to commit a robbery or during the flight from the robbery. The jury found defendant not guilty of felony-murder. The jury based its conviction of robbery on the afterthought concept of robbery which is not recognized in this State. The trial court believed, and the State admits, that the jury found that the intent to rob the victim was formulated after the force had been initiated, not the other way around. Thus, the verdicts were not inconsistent so much as the robbery conviction was based on a type of robbery not found within the statutory definition for robbery under N.J.S.A. 2C:15-1.

As already concluded above, the conviction of robbery was tainted by the erroneous and confusing jury charge regarding afterthought robbery. This confusion led to inconsistent verdicts which cannot be reconciled. Therefore, the conviction on Count III cannot stand.

“A trial court may mold a verdict by entering a judgment of conviction for a lesser included offense or where the jury verdict necessarily constitutes a finding that all the elements of the lesser included offense have been established and where no prejudice to the defendant results.” State v. Viera, 346 N.J. Super. 198, 217 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002) (quoting State v. Greenberg, 154 N.J. Super. 564, 567-78 (App. Div. 1977), certif. denied, 78 N.J. 612 (1978)). “Thus, [a] guilty verdict may be molded to convict on a lesser included offense even if the jury was not instructed on that offense if ‘(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in a more serious offense, and (3) defendant’s guilt of the lesser included offense is implicit in, and part of, the jury verdict.’” Ibid. (quoting State v. Farrad, 164 N.J. 247, 266 (2000)). There is no question that the elements of third-degree theft from the person have been established. N.J.S.A. 2C:20-3a. Indeed, defendant admitted what he stole from Rendon. This matter is remanded to enter a conviction on the lesser-included third-degree offense of theft from the person.

New Jersey Legal Resources - Rominger Lawyer Directory & Legal Resources

Furthermore, in light of the abolition of the inconsistent verdict rule in criminal cases in Georgia, the sole issue is whether the evidence was sufficient to authorize a rational trier of fact to find Turney guilty of cruelty to children beyond a reasonable doubt. See White v. State, 268 Ga. 28, 29 (1) (486 SE2d 338) (1997). At trial, the mother testified that Turney chased her into their bedroom, then hit, beat and dragged her. Their three-year-old child, the victim as to the cruelty charge, was standing just outside the bedroom door and began screaming at Turney to stop hurting her mother and to let her go. Turney yelled that he was going to “get rid of this piece of trash of a mother she had,” and then ordered the child to go back to her room. Turney then dragged the mother through the house, pulled her outside and said he was going to kill her. The mother retrieved her car keys, and as she was driving away, Turney fired a gun at her. Just after the incident, the child told an investigator that Turney was trying to kill her mother. Although the child was young and not very articulate, at trial she testified affirmatively when asked if Turney did something bad to her mother, hurt her mother and scared her. The child’s sister testified that she awoke during the incident and saw the three-year-old run past her room with a frightened look on her face. The evidence was sufficient for a rational trier of fact to find Turney guilty beyond a reasonable doubt of cruelty to children. See generally Hall v. State, 261 Ga. 778, 782 (7) (b) (415 SE2d 158) (1991).

http://www.lawskills.com/case/ga/id/24131/

This question is one of law. As this court has previously explained, “[t]he conduct of a jury is sometimes devoid of logic, and inconsistent verdicts may result. Even in cases where the two verdicts are irreconcilable the convictions will not be reversed on grounds of inconsistency.” State v. Shultz, 225 Kan. 135, Syl. ¶ 8, 587 P.2d 901 (1978).

This rule for upholding inconsistent verdicts is bolstered by the fact that the jury in this case was provided the following instruction:

“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your findings as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”

Because juries are presumed to have followed the instructions given, one must assume that they understood that their verdicts were independent of one another. See State v. Donaldson, 279 Kan. 694, 700, 112 P.3d 99 (2005).

But see,

Beattie argues her conviction of possession of cocaine in a family housing complex should be reversed because the jury acquitted her of the lesser-included offense of possession of cocaine. We agree. “When this Court reviews a claim of inconsistent jury verdicts, we will take corrective action only when the verdicts are „extremely contradictory and irreconcilable.‟” Mitchell v. State, 726 N.E.2d 1228, 1239 (Ind. 2000) (quoting Jones v. State, 689 N.E.2d 722, 724 (Ind. 1997)), overruled on other grounds by Robinson v. State, 805 N.E.2d 783 (Ind. 2004). Perfect logical consistency is not required. Id. Jury verdicts are inconsistent only where they cannot be explained by weight and credibility assigned to the evidence. Thus, an acquittal on one count normally will not result in reversal of a conviction on a similar or related count, because the former will generally have at least one element (legal or factual) not required for the latter. In such an instance, the finder of fact will be presumed to have doubted the weight or credibility of the evidence presented in support of this distinguishing element. Neuhausel v. State, 530 N.E.2d 121, 123 n.2 (Ind. Ct. App. 1988).

---

As in Owsley, we cannot explain the jury‟s verdicts on the basis that it must have accepted some portions of the State‟s evidence and rejected other portions, because the evidence supporting possession of cocaine in a family housing complex was the same evidence that supported simple possession. Acquittal on possession of cocaine logically negates a necessary element of possession of cocaine in a family housing complex. The State argues the inconsistency of the jury‟s verdicts is harmless because the evidence of her guilt was overwhelming. However, the same “overwhelming” evidence supported possession of cocaine, and the jury acquitted Beattie of that offense. Therefore, it is impossible for us to determine which verdict reflects the jury‟s determination of the facts. Were we to find the jury must have intended to find Beattie guilty of possession of cocaine in a family housing complex because the evidence was overwhelming, we could explain the acquittal only on the basis that the jury ignored the law or exercised lenity. In Owsley, we held that would not defeat a claim of inconsistent verdicts: The State posits that the jury essentially may have chosen to ignore the law and exercise lenity by convicting Owsley only of the conspiracy charge in spite of the evidence and the law, especially because it was revealed that Stallworth, Owsley‟s alleged co-conspirator, had only pled guilty to conspiracy to commit dealing in cocaine and had had his dealing in cocaine and possession charges dismissed. We acknowledge the likelihood that this is precisely what happened in this case. However, if we were to entertain suggestions that the jury must have engaged in nullification or exercised lenity in arriving at logically inconsistent verdicts, there could never be such a thing as fatally inconsistent verdicts because such an argument could always be raised. Id. at 186. Accordingly, we reverse Beattie‟s conviction of possession of cocaine in a family housing complex.
Beattie argues the double jeopardy provisions of the United States and Indiana Constitutions prohibit her retrial on the conviction we have reversed. Because the jury acquitted her of possession of cocaine, she argues, there was necessarily insufficient evidence of possession of cocaine in a family housing complex; therefore, she should be acquitted of that charge. In Owsley, we remanded for a new trial on the conspiracy charge: Because we cannot delve into the thought processes of the jury, we cannot know whether it believed there was sufficient evidence to convict Owsley of both possession and conspiracy to commit dealing in cocaine and acted out of leniency, or whether it believed there was insufficient evidence Owsley carried out the alleged overt act of providing cocaine to Stallworth but nonetheless convicted him improperly. Our vacation of Owsley‟s conspiracy conviction is on procedural grounds and should not be viewed as a holding that there was necessarily insufficient evidence to convict Owsley of that crime, in which event the prohibition against double jeopardy would bar Owsley‟s retrial on the conspiracy charge. Id. at 187. We agree with the reasoning in Owsley. We are not reversing Beattie‟s conviction due to insufficient evidence, but because the inconsistency in the jury‟s verdicts leaves us unable to determine what evidence the jury believed. Therefore, we conclude the appropriate remedy is to remand for a new trial on possession of cocaine in a family housing complex. Reversed and remanded.

Indiana Judicial Branch: Appellate Decisions (sorry for the crappy formatting, the pdf is much easier to read).