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Tricky questions about lesser offenses

Can the defense object to a charge on a lesser-included offense?  And in a bench trial, is the judge's decision to convict on a lesser offense the same as, in a jury trial, charging the jury on the lesser offense?

Those are the questions raised by In re C.S., decided by the 8th District just last week.  (The discerning reader will note that yours truly was appellate, though not trial, counsel.)  The facts are somewhat sordid, in a Clintonian sort of way:  the defendant, who was 16, was interested in a young girl who was a year younger.  Eschewing the flowers-and-candy approach, the defendant instead tugged her into the boys' bathroom at school, and the two went into a stall where she proceeded to fellate him.  Their romantic reverie was interrupted by the entrance of a stranger in the rest room; after a couple of minutes, the intruder left, and the couple picked up where they'd left off.

Not exactly Romeo and Juliet, admittedly.  Anyway, the school got wind of it, and the defendant was charged with rape and kidnapping.  The case proceeded to trial in the juvenile court, with the defendant's posture being that the act was consensual.  A few months after hearing the evidence, the court came up with a somewhat bizarre verdict:  it found that there were actually two incidents -- the one before and the one after the other person entered the bathroom -- and that the first one was consensual and the second one not.  To top it off, the court convicted the defendant of attempted rape and kidnapping.

It's hard to figure that last part out.  This seems to be a case that calls for Yoda's classic admonition:  "Do or do not.  There is no try."  There's no question there was sex; the only issue was whether it was consensual.  So we argued that that the judge erred by convicting him of the lesser-included offense, analogizing that to a judge's charging the jury on a lesser-included in a jury trial.

Normally, we're inclined to think of a lesser-included offense benefitting the defendant, but that's not invariably true.  The law is clear that a court shouldn't instruct on a lesser-included unless there's some version of the facts by which the jury could acquit the defendant of the greater crime and convict him of the lesser.  The reason for that was best given in State v. Johnson, 36 OSt3d 224:

Appellee was entitled to the unqualified right to have the prosecution prove every element of the offense of rape beyond a reasonable doubt, and if the state was unable to do so, he was entitled to an acquittal.  Where, as here, the evidence does not support a conviction on a lesser included offense, it would be erroneous to instruct the jury thereon, as to do so would confront the jury with the choice of reaching an unreasonable conclusion. If appellee was not guilty of rape, his liberty should not be dickered away by a compromised verdict upon another crime.

There aren't a whole lot of cases where a trial court was reversed for giving an instruction on a lesser-included over the objection of the defendant, but there are some.  In fact, we found one right on point:  a 1981 decision out of Lucas County reversing the a conviction of attempted rape, where the defense was consent and the trial court had given the charge of the lesser-included despite the defendant's objection.

And the court of appeals here -- Judges Celebrezze, Corrigan, and Gallagher -- agreed, finding that the trial court's actions "were unreasonable, arbitrary and unconscionable when it amended the appellant's original charge and found him delinquent of the lesser included offenses."

The remedy the court granted, though -- reversal and remand for new hearing -- raise some interesting double jeopardy questions.  I'll get to that a couple of weeks from now.

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