The trial court used in incorrect standard of the abstract elements approach to decide that theft was not a lesser included offense instead of the correct charging-instrument approach. Therefore, the trial court should not have refused the lesser instruction in the jury instructions conference.
The State also tried to argue that even if an instruction could lie, that it still should not have been given based on the evidence presented. The appellate court disagreed, finding the State’s citations to be unpersuasive and refused to follow them.
The case is People v. James Henson