Lesser Included Offense – Plea Bargain Option or Backup Charge to Ensure a Conviction

When someone is charged with a crime such as a felony, that charge is often accompanied by a lesser included offense of that greater crime.

Lesser included offense

Photo by: winnifredxoxo

Photo by: winnifredxoxo

A lesser included offense is a crime wherein the elements, or specific aspects needed to prove guilt of that crime are included within the greater crime being charged. In order for a lesser included offense to be valid, it must be impossible for the greater crime to be committed unless the lesser offense is as well. For instance, a class A misdemeanor assault would be the lesser included offense for third degree felony assault as it is impossible for someone to use “force or means likely to produce death or serious bodily injury to another” if they never caused any “substantial bodily injury”.

Use in traffic violations

Lesser included offenses come up frequently with traffic violations. An example would be if a person is arrested for reckless driving and exceeding the maximum speed limit by up to 25 mph. The first being a class B misdemeanor (greater offense), while the latter is a mere infraction (lesser included offense). Utah Code defines reckless driving as someone who “operates a vehicle in a willful or wanton disregard for the safety of persons or property”. Exceeding the speed limit in certain areas of circumstances can also fall under the same definition, but without a criminal charge attached.

One or the other

Photo by: Kyle Pearce

Photo by: Kyle Pearce

When a lesser included offense accompanies a greater offense, often the defendant cannot be convicted of both charges. Such would be the case with voluntary manslaughter and murder. If the defendant was found guilty it would be for either one or the other; not both. This can also apply to drug charges. Someone can be arrested for possession and possession with intent to distribute yet if the intent to distribute charge sticks the simple possession charge is void as it is already encompassed within the greater charge.

Lesser related offense

There are some lesser charges that are related in nature, yet not included in more severe crime. These are known as lesser related offenses. Possession is a lesser related offense to distribution and often goes hand in hand, yet possession is NOT a lesser included offense of distribution. Someone can be a middle man in a deal, never having the illegal drugs in their possession, and face distribution charges without the possession charges. If they did possess the drugs and sold them, then the possession charge would be a lesser related offense.

Use in plea bargains

Photo by: Karen Neoh

Photo by: Karen Neoh

A lesser included offense can be beneficial in defense cases as it can give the defendant an option to plead guilty to a lighter crime and have the more serious charge dropped. This is sometimes the case when there is proof beyond a reasonable doubt that the defendant is guilty of the lesser crime but the defense may not want to risk the chance of the defendant being found guilty of the higher crime, so they accept the lesser offense in exchange for dropping the greater one.

Prosecution’s use of lesser charges

The defendant isn’t the only one that has the potential to benefit from lesser included offenses. The prosecution will often add a lesser included offense to ensure that the defendant will be found guilty of something. This backup charge helps the prosecution ensure a conviction when they may doubt whether or not the more serious charge would stick. Since they can be used for or against the defendant, it is always wise to consult with an experienced criminal defense attorney to help guide you through the court proceedings and know when to accept or fight lesser included offenses.

Multiple Felony Charges of Domestic Violence in the Presence of a Child

A Payson Utah man is facing multiple felony charges of domestic violence in the presence of a child following an assault on a woman in front on her children.

911 hang-up call

Photo by: Philippe Put

Photo by: Philippe Put

Police were dispatched to a Payson Utah home after a 911 hang-up call. The emergency dispatcher who received the call stated that although it was brief, they could hear a distraught woman screaming and shouting in the background. When police arrived, one of the children opened the door and officers found their mother bruised and bleeding from a large laceration to her head.

Wrong use of a kitchen utensil

36 year old Aaron Garcia, a former mixed martial arts (MMA) fighter was arrested for charges including aggravated assault after the woman stated Garcia hit her on the head with a wooden rolling pin. Garcia had been drinking heavily prior to the assault and was unable to recall details of what prevailed that evening besides that he was getting cross with the woman throughout the day. After searching the home, a wooden rolling pin was located, bloody and broken. Garcia is facing five third degree felonies following the assault at the Payson home, each with a maximum penalty of 5 years in prison and $5,000 fine.

Domestic violence

Photo by: Nari Sin

Photo by: Nari Sin

One of the charges against Garcia is for the aggravated assault on the woman which is also considered domestic violence, although an additional charge for that specifically was not issued. Domestic violence is thought to take place between spouses; however it can be any violent behavior between multiple occupants of the same living environment. It was not reported what relationship Garcia had to the woman he assaulted. All that is known at this time is that Garcia and the woman were both residents of the same address. There is a possibility that Garcia was the woman’s spouse, yet he could have also been a live in boyfriend or just a roommate.

Domestic violence in the presence of a child

Although Garcia wasn’t charged with domestic violence for his assault on his cohabitant, his other four third degree felonies came from charges of domestic violence in the presence of a child because there were children present during the attack. Utah Code 76-5-109.1 states “A person commits domestic violence in the presence of a child if the person: ( . . . ) intentionally causes serious bodily injury to a cohabitant or uses a dangerous weapon [like a rolling pin] or other means or force likely to produce death or serious bodily injury against a cohabitant in the presence of a child.”

One charge per child present

Domestic violence in the presence of a child

Photo by: Natesh Ramasamy

Although there was only one assault in question, Garcia is facing four charges of domestic violence in the presence of a child likely due the fact that there were four children home when the violence took place. Utah Code 76-5-109.1(5) explains when a person violates the above section “when more than one child is present [they are] guilty of one offense of domestic violence in the presence of a child regarding each child present when the violation occurred.”

Consecutive vs concurrent

When someone is charged with a crime, they may not seek legal counsel if they assume the prosecution has a rock solid case. However, there are other important reasons to be represented by an attorney. When someone is facing multiple offenses, if they are found guilty the judge can decide whether the sentences are to be run consecutively or concurrently. Consecutive sentences are served one after another; in Garcia’s case that would equal up to 25 years in prison. Concurrent sentences are all served at the same time; for Garcia, that would mean no more than five years for all charges combined. If anyone is facing charges for multiple offenses, speak with an attorney to find out options for defending the charges or at least reducing the prison terms.

Assault on a Pregnant Woman

A Spanish Fork man was arrested last week for charges related to assault on a pregnant woman after he sexually and physically assaulted a woman and locked her in the basement.

Physical and sexual assault

Photo by: Teresa Rodríguez

Photo by: Teresa Rodríguez

32 year old Jeff Jackson was arrested December 31st 2015 after the pregnant woman he assaulted contacted police after escaping from the basement in which she was temporarily being held captive. The victim had signs of physical abuse such as bite indentations and bruising along with other nondisclosed injuries. The abuse also took place in front of the victim’s minor children. Jackson is facing sexual offenses along with aggravated assault.

Taking food from a pregnant woman

Photo by: KittyKaht

Photo by: KittyKaht

Another case of assault on a pregnant woman happened in Salt Lake City earlier last month. An intoxicated man stumbling around in the parking lot of 7-11 approached an obviously pregnant woman leaving the convenient store and stole her pizza that she had just purchased. Stealing pizza from a pregnant woman is illegal (not to mention dangerous), and the intoxicated pizza thief made his charges worse by striking the pregnant woman in the face afterward.

Assault on a pregnant woman

Photo by: daniel julià lundgren

Photo by: daniel julià lundgren

Assault on a pregnant woman carries higher penalties as the stress of the assault could lead to health complications such as premature labor. According to Utah Code 76-5-102, simple assault is class B misdemeanor. This is unless there is “substantial bodily injury” or in a case of assault on a pregnant woman, in which it therefore becomes a class A misdemeanor. The charges are only increased however if it known that the woman is pregnant. Until a woman is further along in her pregnancy, it is often difficult to tell that she is with child without asking (which is strongly discouraged). For those facing assault on a pregnant woman when it was unknown that the other party was pregnant, contact a criminal defense attorney to discuss how to proceed.