When is a defendant entitled to a jury instruction on a lesser included offense?

Lesser Included Offenses

Alotaibi (Mazen) vs. State (Nev. Supreme Ct. – Nov. 9, 2017)

In this appeal, the Supreme Court of Nevada determined whether, under the statutory definitions existing in 2012, the offense of statutory sexual seduction is a lesser-included offense of sexual assault when that offense is committed against a minor under 14 years of age.

The statutes defining statutory sexual seduction and sexual assault were amended in 2015. Under the 2015 amendments, any sexual penetration of a minor under the age of 14 is sexual assault, and it is no longer possible for statutory sexual seduction to be committed against a minor under the age of 14. Therefore, the analysis of the statutory elements in this opinion pertains only to the version of the statutes in place at the time the offenses were committed in 2012.

On the morning of December 31, 2012, Alotaibi arrived at the Circus Circus hotel where his friends had a room. In the hallway outside the hotel room, Alotaibi encountered A.D., a 13- year-old boy who was staying at the hotel with his grandmother. A.D. asked Alotaibi for marijuana, and they went outside the hotel to smoke it. Alotaibi made sexual advances toward A.D. in the elevator and outside the hotel, despite A.D.’s resistance. Alotaibi then offered A.D. money and marijuana in exchange for sex. A.D. testified that he agreed, but intended to trick Alotaibi into giving him marijuana without engaging in any sexual acts.

They went back to the hotel room where Alotaibi’s friends were staying, and Alotaibi took A.D. into the bathroom and closed the door. Alotaibi told A.D. that he wanted to have sex and began kissing and touching him. A.D. testified that he told Alotaibi “no” and wanted to leave the bathroom, but Alotaibi was standing between him and the door. A.D. testified that Alotaibi forced him to engage in intercourse. After leaving the hotel room, A.D. reported to hotel security that he had been raped.

During his interview with the police, Alotaibi admitted meeting A.D. in the hallway of the hotel and stated that A.D. had asked him for money and weed. Alotaibi initially denied touching A.D. or bringing him into the bathroom, but then admitted engaging in the sexual acts in the bathroom of the hotel room. According to Alotaibi, it was A.D.’s idea to have sex in exchange for money and weed, A.D. went willingly with him into the bathroom and initiated the sexual acts, and Alotaibi did not force him.

Based upon this incident, Alotaibi was charged with numerous offenses, including two counts of sexual assault. In settling jury instructions, Alotaibi requested an instruction on statutory sexual seduction as a lesser-included offense of sexual assault, arguing that evidence indicated the victim consented to the sexual activity. The district court determined that statutory sexual seduction was not a lesser-included offense because it contained an additional element (the consenting person being under the age of 16) not required by sexual assault. Noting that there was evidence of consent to support the lesser offense, the district court instead offered to instruct the jury on statutory sexual seduction as a lesser-related offense of sexual assault, but Alotaibi declined such an instruction.

The jury found Alotaibi guilty of two counts of sexual assault with a minor under 14 and other offenses. Alotaibi appealed from the judgment of conviction.

On appeal, Alotaibi contended that the district court erred in refusing to instruct the jury on statutory sexual seduction as a lesser-included offense of the charged offense of sexual assault with a minor because he presented evidence that the sexual conduct was consensual.

NRS 175.501 provides that a “defendant may be found guilty. . . of an offense necessarily included in the offense charged.” The Supreme Court of Nevada has held that this rule entitles a defendant to an instruction on a “necessarily included” offense, i.e., a lesser-included offense, as long as there is some evidence to support a conviction on that offense. Rosas v. State, 122 Nev. 1258, 1267-69, 147 P.3d 1101, 1108-09 (2006).

The Court explained that in determining whether an uncharged offense is a lesser-included offense of a charged offense so as to warrant an instruction pursuant to NRS 175.501, it applies the “elements test” from Blockburger v. United States, 284 U.S. 299 (1932). Barton v. State, 117 Nev. 686, 694, 30 P.3d 1103, 1108 (2001). Under the elements test, an offense is necessarily included in the charged offense if all of the elements of the lesser offense are included in the elements of the greater offense such that the offense charged cannot be committed without committing the lesser offense. Thus, if the uncharged offense contains a necessary element not included in the charged offense, then it is not a lesser-included offense and no jury instruction is warranted.

Alotaibi suggested that the Court had already resolved the issue of whether statutory sexual seduction is a lesser-included offense of sexual assault with a minor in Robinson v. State, 110 Nev. 1137, 1138, 881 P.2d 667, 668 (1994). The Court disagreed. Though Robinson contains statements to the effect that statutory sexual seduction is a lesser-included offense of sexual assault, the focus in that case was on whether a juvenile who had been certified to be tried as an adult also was an adult for purposes of statutory sexual seduction, which includes the defendant’s age (18 years of age or older) as an element. The Court noted that Robinson, which was decided before the Court clarified the test for determining whether an offense is a lesser-included offense in Barton, provides no analysis as to whether statutory sexual seduction is a lesser-included offense of sexual assault, and thus any statement on this issue is dictum. Accordingly, Robinson is not controlling on the issue of whether statutory sexual seduction is a lesser-included offense of sexual assault so as to entitle a defendant to an instruction on the lesser, uncharged offense.

The statutes at issue raise several questions about how to apply the elements test. Specifically, the parties disagreed about which elements are included in the lesser and greater offenses. Thus, before comparing the statutory elements of the two offenses, the Court ascertained what elements actually comprise those offenses.

Elements of the greater offense

In 2012, NRS 200.366(1) proscribed sexual assault as follows:

A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.

A separate subsection of that statute, NRS 200.366(3)(c), provided for a sentence of life with parole eligibility after 35 years if the offense was committed against a child under the age of 14 years and did not result in substantial bodily harm.

The State contended that the age of the victim is not an element of sexual assault for purposes of the lesser-included-offense analysis because the victim’s age only goes to the sentence for the offense. Thus, the State argued, because statutory sexual seduction requires proof of the victim’s age as an element while the offense of sexual assault does not, statutory sexual seduction is not a lesser-included offense. Alotaibi argued that the State’s decision to charge him with the offense of “Sexual Assault with a Minor Under 14 Years of Age” necessarily inserted the age of the alleged victim as an element of that offense and triggered the application of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Court explained that it agreed with the State that the age of the victim in the sexual assault statute is not an element of the offense for purposes of the lesser-included-offense analysis. The Court acknowledged that its prior decisions have been somewhat inconsistent in distinguishing elements required for a conviction from those that only affect sentencing in applying the elements test. For example, in Rosas, the Court included as elements of the lesser offense several factors that served only to elevate the offense from a misdemeanor to a gross misdemeanor.  The Court clarified that when an element goes only to punishment and is not essential to a finding of guilt, it is not an element of the offense for purposes of determining whether a lesser-included-offense instruction is warranted. Cf. LaChance v. State, 130 Nev. 263, 273-74, 321 P.3d 919, 927 (2014) (holding that an element that does not affect guilt, but rather only determines the sentence is not an element of the offense for the purposes of Blockburger). To the extent that Rosas included elements only relevant to sentencing in its analysis under the elements test, the Court disavowed any such application of the elements test.

The Court explained that Alotaibi’s arguments regarding Apprendi did not alter its conclusion. In Apprendi, the United States Supreme Court considered whether the Sixth Amendment’s guarantee of a jury trial requires that a jury, rather than a judge, determine any factor other than a prior conviction that increases the statutorily authorized sentence for an offense. The Supreme Court held that, regardless of how a fact is designated by a legislature, any fact (other than a prior conviction) that authorizes the imposition of a more severe sentence than permitted by statute for the offense alone must be found by a jury beyond a reasonable doubt. Apprendi did not address whether a sentencing factor is an element of an offense when determining whether the offense is included within a greater offense, and Alotaibi cited no controlling authority applying Apprendi to double jeopardy or lesser-included-offense analysis.

The Court further explained that the elements necessary to convict a defendant of sexual assault are contained solely in subsection 1 of NRS 200.366, whereas the age of the victim set forth in subsection 3 is a factor for determining the appropriate sentence for the offense. As clearly indicated by the statute’s structure and language, the age of the victim is not essential to a conviction for sexual assault; it serves only to increase the minimum sentence that may be imposed. Thus, it is a sentencing factor and not an element of the offense for purposes of the elements test. As such, for purposes of the elements test, the offense of sexual assault, regardless of whether it was committed against a minor, has two statutory elements:

(1) “subject[ing] another person to sexual penetration, or. . . forc[ing] another person to make a sexual penetration on himself or another, or on a beast,”

(2) “against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct.”

Elements of the lesser offense

Having identified the elements of the greater offense, the Court turned to the elements of the lesser offense. In 2012, statutory sexual seduction was defined in NRS 200.364(5) as:

(a) Ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio committed by a person 18 years of age or older with a person under the age of 16 years; or

(b) Any other sexual penetration committed by a person 18 years of age or older with a person under the age of 16 years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either of the persons.

The statute therefore sets forth two alternative means of committing statutory sexual seduction: (a) engaging in sexual intercourse, anal intercourse, cunnilingus, or fellatio; or (b) engaging in other sexual penetration with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either person. The parties disagreed on how to apply the elements test where, as here, the statute provides different ways for a person to commit the offense. The State asserted that all of the elements of both alternative means of committing the lesser offense must be included in the greater offense, while Alotaibi focused only on the elements of one of the alternatives, NRS 200.364(5)(a), that is most consistent with the sexual acts alleged in this case.

The Court concluded that where a statute provides alternative ways of committing an uncharged offense, the elements of only one of those alternatives need to be included in the charged offense for the uncharged offense to be lesser included. See, e.g., United States v. McCullough, 348 F.3d 620, 626 (7th Cir. 2003) (holding that “alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense”); United States v. Alfisi, 308 F.3d 144, 152 n.6 (2d Cir. 2002) (finding an offense to be a lesser-included offense “notwithstanding the existence of possible or alternative, and non-mandatory, elements in the lesser offense not contained in the greater offense”); State v. Waller, 450 N.W.2d 864, 865 (Iowa 1990) (“When the statute defines [a lesser] offense alternatively, . . . the relevant definition is the one for the offense involved in the particular prosecution.”). The Court noted that it agreed with the Second Circuit’s reasoning in Alfisi, whereby the court rejected an “unnecessary and formalistic requirement on how [the legislature] drafts criminal statutes,” opting instead to view no differently a statute drafted as a “singular but disjunctive whole” from a statute dividing the alternative elements “into several discreet and independent sections.” Likewise, here, the fact that the Legislature included the alternative means of committing statutory sexual seduction in disjunctive subsections of the statute does not preclude each alternative means from being a lesser-included offense.

The Court determined that neither of the alternatives in NRS 200.364(5) is necessarily included in the offense of sexual assault. Both alternatives include the age of the victim (under 16 years of age) as an element of the offense that is required for conviction. As the Court explained, the age of the victim is not an element required for a conviction of the greater offense (sexual assault). The alternative set forth in NRS 200.364(5)(b) also includes an intent element that is not included in the greater offense – that the sexual act was committed “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant or the victim].” Therefore, the Court concluded that under the elements test, statutory sexual seduction is not a lesser-included offense of sexual assault, and Alotaibi was not entitled to an instruction on statutory sexual seduction. As such, the Court found that the district court properly refused to instruct the jury on statutory sexual seduction and, therefore, affirmed the judgment of conviction.

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