When a Crime Does Not Qualify as a ‘Lesser Included Offense’ and How that Can Affect the Outcome of Your Maryland Criminal Case

An experienced Maryland criminal defense attorney can benefit you and your case in a number of ways. Obviously, a skilled defense attorney can present your defense in a clear and persuasive manner to convince a jury to return a verdict of “not guilty.” However, a skilled defense lawyer can go beyond that, because there is more than one way to avoid conviction. In the interest of fairness, the law places certain restrictions on the prosecution. If the state violates any of those rules, that violation may entitle you to have your conviction thrown out.

An example of using these rules to achieve a successful result was the case of D.M. D.M. was one of several teens arrested in connection with a fatal attack in Baltimore. In the attack, the group allegedly stomped and kicked the victim. A 15-year-old juvenile, P.G., had a knife and stabbed the victim 11 times. (The victim died from blood loss less than 24 hours after the attack.) The state charged D.M. with first-degree murder, conspiracy to commit first-degree murder, armed robbery, conspiracy to commit armed robbery and theft, among other charges.

At the end of D.M.’s trial, the court did not find him guilty on the murder charges. The court did, however, find him guilty of first-degree assault based upon the stomping/kicking of the victim. D.M. received 13 years on the assault conviction.

For the state, there was one major problem: the indictment against D.M. never said anything about assault. That led D.M. to argue on appeal that first-degree assault was neither an express nor an implied charge under the indictment and, as a result, the conviction and the 13-year sentence were illegal and must be thrown out.

In Maryland, you can only be convicted of a lesser included offense if it meets the “elements test.” Under this analysis, the court only looks at the legal definitions of the crimes in question. If the lesser crime contains, among the list of elements of the greater crime, all of the same elements of that greater crime, then the lesser crime is one of which an accused person can be convicted. For example, illegal possession of a gun is not a lesser included offense of armed robbery, because you can commit armed robbery without possessing a gun.

In addition to meeting the elements test, a valid lesser included offense must be “based on the same act or acts.” That was where D.M.’s appeal achieved its success. The victim was killed as a result of multiple stabbings inflicted by the knife-wielding juvenile. D.M.’s assault conviction arose from his kicking and/or stomping on the victim. The evidence was clear that the murder was a separate act from the assault. That meant that assault couldn’t qualify as a lesser included offense and, as a result, the assault conviction was one that D.M.’s legal counsel correctly identified as “an offense that was not charged, either expressly or impliedly, in the indictment.”

Thanks to his effective appeal, D.M.’s assault conviction and sentence were vacated.

To get the strong and persuasive defense you need for your criminal case, contact skilled Maryland criminal defense attorney Anthony A. Fatemi, who has been providing effective defense representation for the accused in Maryland for many years. To learn more, contact us at 301-519-2801 or via our online form.

More blog posts:

Prosecution’s Evidence of Accused Maryland Man’s ‘Other Bad Acts’ Allows Accused to Get a New Trial, Maryland Criminal Lawyer Blog, July 9, 2018

How an Accused Man Turned a Baltimore Judge’s Error into a Reversal of His First-Degree Murder Conviction, Maryland Criminal Lawyer Blog, Jan. 12, 2018


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