The Oklahoma Bar Journal March 2023

sua sponte , and the defendant appealed. 58 Judge Lumpkin again cited Shrum and its progeny to establish the two-part test, but he stopped the analysis as soon as he determined that the requested jury instruction was not a lesser included offense: “Appellant fails to meet the first step of the analy sis as the crime of Possession with Intent to Distribute is not a legally recognized lesser included or lesser related offense to the crime of Trafficking.” 59 Again, this is the lan guage of the previous “elements” test, not the current “evidence” test. SUMMARY It appears that we now have a two-step hybrid elements/pleadings/ evidence test. First, the court should determine whether the proposed jury instruction is for a lesser included offense 60 or a lesser related offense. 61 Second, the court should evaluate whether prima facie evidence was presented at trial to support the lesser offense 62 while being careful to account for whether the defense’s theory of the case lines up with it. 63 If the defense’s theory matches the instruction, the instruction may be given. 64 If it does not, the instruc tion should be refused. 65 Notable in this new formu lation is the court’s return to an elements-based analysis for the first step of the test. Under Bivens and Bench , courts may compare the elements of the greater offense against the elements of the lesser offense before looking to see if the evidence in the case matches the lesser offense. If there is insuf ficient congruence between the elements of the two crimes, the analysis may stop there, and the jury instruction would not be appropriate. 66 Judge Hudson noted this in his concurrence in Bivens : The “[m]ajority utilizes a two step approach that begins with

class of offenses and are closely or inherently related, but the elements do not satisfy the strict statutory elements test.” 54 But notable throughout his discus sion is that he avoided the phrase “lesser related” and instead used the phrases “lesser included” and “necessarily included” to describe whether second-degree murder was a lesser offense of first-degree murder. 55 This language is more akin to the elements test, not the evidence test. Then he went through the two-step analysis and concluded that a second-degree murder charge was historically a lesser included offense to first- degree murder, but he ultimately found that the jury instruction in question was not supportable by the evidence that had been pre sented at trial. 56 In the second case from 2018, Bivens v. State, Judge Lumpkin was presented with the question of whether possession of an illegal substance with intent to distribute was a lesser related crime of the offense of drug trafficking. 57 In that case, the trial court had failed to give such a jury instruction

appellate record. 50 Since the “State did not designate those portions of the trial transcript containing the evidence at trial” and “[b]ecause the determination [of] whether an offense is a legally recognized lesser included offense is based upon the crimes the trial evidence tends to prove[,] we find that the State has failed to ensure a suf ficient record to determine the question raised on appeal.” 51 Fast forward to 2018. Judge Lumpkin authored two separate opinions that dealt with lesser related offense issues. In Bench v. State , the court considered whether second-degree depraved-heart murder was a lesser offense to the crime of first-degree murder. 52 Judge Lumpkin noted the histor ical tradition of the elements test: “This Court had traditionally looked to the statutory elements of the charged crime and any lesser degree of crime to deter mine the existence of any lesser included offenses.” 53 Then he referenced Shrum’s adoption of the evidence test that included “situations where the lesser and greater offense are in the same

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THE OKLAHOMA BAR JOURNAL