State v. Herrera
State v. Herrera, 2021 UT App 46 (Appleby, J.)
Defendant appealed his conviction for driving with a measurable controlled substance in the body and causing serious bodily injury or death on the basis that the trial court erred in denying his request to instruct the jury on several lesser-included offenses. The Utah Court of Appeals affirmed, holding:
- When requesting an instruction on a lesser-included offense, the prosecution must meet a more stringent standard and show that (i) the legal elements and evidence necessary to establish the elements are necessarily included in the charged offense, and (ii) no element is included in the lesser offense that is not included in the greater.
- The defense must show (i) there is “some overlap in the statutory elements,” (i) that the evidence at trial includes proof of some or all of the overlapping elements, and (iii) that there is a rational basis for the jury to acquit on the greater offense and convict on the lesser. Under this standard, there was not a rational basis to acquit on the greater and convict on the lesser for two requested lesser offenses.