The Oklahoma Bar Journal March 2023

degree malice murder is superfluous ... the legal determination is already made, and the trial court need only look to the evidence to determine whether instructions on lesser forms of homicide are supported.”) (internal quotation marks, citation omitted); Bench , at ¶2, 431 P.3d at 983 (Kuehn, J., concurring in result) (“We have rejected the strict ‘elements’ approach to deciding whether it is appropriate to instruct on lesser offenses. Instead, we consider (1) whether a reasonable view of the evidence meets all elements of the lesser option, and if so, (2) whether a rational juror could have acquitted Appellant of the greater option and convicted him of the lesser – in other words, whether a rational juror could have disregarded any evidence or element that distinguishes the greater from the lesser.”) (citation omitted). 70. If there is such authority holding that a particular offense is not a lesser offense, that ends the analysis before it begins, and the proposed jury instruction is not proper. Bivens , at ¶24, 431 P.3d at 994-95. Alternatively, if there is no authority on that particular lesser offense, then the court proceeds with the Shrum two-step analysis as usual. Finally, if there is authority that a particular offense is a lesser offense, then courts may proceed directly to the second step of the Shrum analysis. Bench , at ¶74, 431 P.3d at 954.

only dicta.” Id . at ¶1, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result). 39. Id. , at ¶2, 991 P.2d 1038 (Lumpkin, V.P.J., concurring in result). 40. Id ., at ¶8, 991 P.2d at 1039 (Lumpkin, V.P.J., concurring in result). 41. Id ., at ¶4, 991 P.2d at 1038 (Lumpkin, V.P.J., concurring in result). 42. Id ., at ¶6, 991 P.2d at 1038-39 (Lumpkin, V.P.J., concurring in result). 43. Id . 44. Id ., at ¶8, 991 P.2d at 1039 (Lumpkin, V.P.J., concurring in result). 45. Childress v. State , 2000 OK CR 10, ¶14, 1 P.3d 1006, 1011 (emphasis added). 46. Glossip v. State , 2001 OK CR 21, ¶29, 29 P.3d 597, 604. 47. Miller v. State , 2013 OK CR 11, ¶¶138-40, 313 P.3d 934, 980-81. 48. McHam v. State , 2005 OK CR 28, ¶20, 126 P.3d 662, 670. 49. Barnett , 2012 OK CR 2, ¶¶4, 18-22, 271 P.3d 80, 82, 86-87 (emphasis added) (trial court was correct to give second-degree felony murder jury instruction and deny first-degree manslaughter jury instruction in a first-degree malice aforethought murder case when there was no evidence of the lesser manslaughter offense). 50. State v. Tubby , 2016 OK CR 17, ¶10, 387 P.3d 918, 921. 51. Id . 52. Bench v. State , 2018 OK CR 31, ¶68, 431 P.3d 929, 953.

53. Id . at ¶72, 431 P.3d at 954. 54. Id . (internal quotation marks omitted). 55. Id . at ¶¶73-74, 431 P.3d at 954. 56. Id . at ¶¶74-82, 431 P.3d at 954-56. 57. Bivens v. State , 2018 OK CR 33, ¶¶23-24, 431 P.3d 985, 994-95. 58. Id . at ¶23, 431 P.3d at 994. 59. Id . at ¶24, 431 P.3d at 994. 60. See , e.g. , Bench , at ¶¶74-82, 431 P.3d at 954-56, and Bivens , ¶¶23-24, 431 P.3d at 994-95. 61. Shrum , supra , and Barnett , supra . 62. See , e.g. , Bench , at ¶¶74-82, 431 P.3d at 954-56, and Bivens , ¶¶23-24, 431 P.3d at 994-95. 63. See , e.g. , Glossip , at ¶29, 29 P.3d at 604, and Miller , at ¶¶138-40, 313 P.3d at 980-81. 64. Glossip , at ¶29, 29 P.3d at 604. 65. Miller , at ¶¶138-40, 313 P.3d at 980-81. 66. Bivens , at ¶24, 431 P.3d at 995-96. 67. Bivens , at ¶1, 431 P.3d at 996-97 (Hudson, J., concurring in results). 68. Id . at ¶1, n1, 431 P.3d at 997, n1 (Kuehn, J., concurring in results) (“The Majority relies on Dufries v. State , 2006 OK CR 13, ¶20, 133 P.3d 887, 891. However, Dufries itself is in conflict with Shrum . Although Dufries was decided well after Shrum , it relies on Ott v. State , 1998 OK CR 51, ¶13, 967 P.2d 472, 477. Ott was decided before Shrum and thus used the strict elements test in effect at that time, which was explicitly rejected in Shrum .”). 69. Bench , at ¶2, 431 P.3d at 985 (Hudson, J., concurring in result) (“The majority’s statement that second degree murder has historically been considered a lesser included offense of first

24 | MARCH 2023

THE OKLAHOMA BAR JOURNAL

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