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State v. Collins3/4/2005
d DWI .08 as a lesser included offense of DWI .16. Defendant was convicted of DWI .08.
Defendant argues that the district court erred in submitting a jury instruction for DWI .08 to the jury for three reasons: (1) he was charged only with aggravated DWI and thus was not put on notice that he needed to defend against the charge of DWI .08, (2) DWI .08 is not a lesser included offense of aggravated DWI, and (3) the district court erred by amending the pleadings sua sponte to include the charge of DWI .08.
a. Notice and Lesser Included Offense Analysis
When one offense is a lesser included offense of a crime named in a charging document, the defendant is put on notice that he must defend not only against the greater offense as charged but also against any lesser included offense. See State v. Meadors, 121 N.M. 38, 45, 908 P.2d 731, 738 (1995) (" n offense is a lesser-included offense only if the defendant cannot commit the greater offense in the manner described in the charging document without also committing the lesser offense. Accordingly, the defendant should be fully aware of the possible offenses for which he or she may face prosecution and should have ample opportunity to prepare a defense."). Thus, if we conclude that DWI .08 is a lesser included offense of aggravated DWI it will be dispositive of Defendant's argument that he was not on notice of the charges against him. Whether a defendant is erroneously convicted of an uncharged lesser included offense is a question of law which we review de novo. See State v. McGee, 2002-NMCA-090, 7, 132 N.M. 537, 51 P.3d 1191.
Meadors sets forth the test for determining whether one offense is a lesser included offense of another. 121 N.M. at 41-47, 908 P.2d at 734-40. First, one must decide whether the stringent "strict elements" test is met. Id. at 42, 908 P.2d at 735. Under the strict elements test, one offense is "a lesser-included offense of another only if the statutory elements of the lesser offense are a sub-set of the statutory elements of the greater offense such that it would be impossible [to ever] commit the greater offense without also committing the lesser offense." Id.
If the strict elements test is not met, then the court should turn to the "cognate approach" to determine whether one offense is a lesser included offense of another. Id. at 44, 908 P.2d at 737. The cognate approach was developed in Meadors, as a clarification of the earlier rule developed in State v. DeMary, 99 N.M. 177, 179, 655 P.2d 1021, 1023 (1982). Meadors, 121 N.M. at 45, 908 P.2d at 738. Under the cognate approach, a party is entitled to an instruction on a lesser included offense, even if the strict elements test is not met, when:
(1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense, and therefore notice of the greater offense necessarily incorporates notice of the lesser offense; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.
Id. at 44, 908 P.2d at 737.
In the present case, no specific form of aggravated DWI was charged. The charge was essentially an open charge, which notified Defendant that he needed to prepare against all three forms of aggravated DWI. See State v. Stephens, 93 N.M. 458, 461, 601 P.2d 428, 431 (1979) (holding that an open charge of murder which did not specify the type or degree of murder nonetheless afforded proper n
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