Can someone be convicted of a lesser crime if the charging document only listed the greater offense?

Plain-English summary

In 1988, a Deputy State's Attorney for Baltimore City asked the Attorney General whether prosecutors could switch to filing single-count charging documents (charging only the top offense, like robbery with a deadly weapon) while still preserving the ability to convict a defendant on a lesser included offense (like simple robbery) if the evidence at trial only supported the lesser charge. The concern was whether dropping the separate lesser-offense counts, which simplified recordkeeping, would run afoul of a defendant's constitutional right to notice of the charges against him. The Attorney General concluded that it would not, so long as the single charging document's own language clearly alleged every element and the specific conduct making up the lesser offense, since a defendant reading such a document would already be on fair notice that a conviction on the lesser charge was possible. The opinion cautioned that this only works when the offense actually qualifies as "lesser included," meaning every element of the lesser offense is also an element of the greater one charged; if the lesser offense has an element the greater one lacks, a document charging only the greater offense will not support a conviction on the lesser.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Maryland prosecutors have to list every lesser offense separately in the charging document?
No, according to this opinion. The Attorney General concluded that neither the Sixth Amendment nor Article 21 of the Maryland Declaration of Rights required a separate count for a lesser included offense, as long as the document charging the greater offense already alleged all of the essential elements and the specific conduct that made up the lesser offense.

What made an offense a "lesser included offense" of a more serious charge?
The opinion explained that an offense only qualifies as lesser included if it has fewer elements than the greater offense and the greater offense cannot be committed without also committing the lesser one. If the supposed lesser offense had an element the greater offense lacked, the opinion concluded a document charging only the greater offense could not support a conviction on that other offense.

Could a defendant be convicted of a lesser offense under a single-count indictment and still be protected from being charged again for the same conduct?
Yes, according to the opinion. It concluded that a charging document meeting the "clearly alleges all elements" standard would satisfy both purposes behind the constitutional notice requirement: giving the accused fair warning of the charge and barring a later prosecution for the same offense.

Background and statutory framework

The opinion arose because the Baltimore City State's Attorney's Office wanted to move from multi-count charging documents, which separately alleged both a greater offense (such as robbery with a deadly weapon) and its lesser included offenses (such as robbery or attempted robbery), to a simpler single-count document charging only the greater crime. The office wanted to know whether that change would still let it seek convictions on only the lesser offense when the trial evidence supported that outcome instead of the top charge.

The opinion grounded its analysis in the Sixth Amendment's guarantee that an accused be "informed of the nature and cause of the accusation" and the parallel guarantee in Article 21 of the Maryland Declaration of Rights, both aimed, per Ayre v. State, at giving the accused notice of what to defend against, protecting against a later prosecution for the same offense, letting the defendant prepare for trial, letting the court assess the document's legal sufficiency, and letting the court impose an appropriate sentence. Citing Byrd v. State and Lank v. State, the opinion described a two-part sufficiency test: the document must put the accused on notice of the charges and must bar a later prosecution for the same offense.

Relying on the general common-law rule (citing treatises including 41 Am. Jur. 2d Indictments & Informations and Wharton's Criminal Procedure) and the Court of Special Appeals' decision in Johnson v. State, the opinion concluded Maryland already followed the rule that a defendant charged with a greater offense may be convicted of a lesser offense necessarily included within it, even without a separate count, provided the document's own allegations clearly cover every element of that lesser offense. The opinion cited United States v. Miller for the proposition that a charging document covering the broader offense can support conviction of a narrower offense contained within it without violating federal constitutional notice rights, while noting that the federal grand jury indictment right itself does not apply to the states under Hurtado v. California and Moaney v. State.

The opinion closed with an important limit: the analysis only holds if the offense is genuinely "lesser included," meaning (citing Wharton's Criminal Procedure and 42 C.J.S. Indictments & Informations) it has fewer elements than the greater offense and the greater offense cannot be committed without also committing the lesser one, drawing on Veney v. State's discussion of when offenses do not merge for double jeopardy purposes. If an element of the supposedly lesser offense is not also an element of the greater offense charged, a single-count document charging only the greater crime will not support a conviction on that other offense.

Citations and references

Statutes:

• Rule 4-102(a)
• Sixth Amendment
• Article 21 of the Maryland Declaration of Rights
• Fifth Amendment
• Fourteenth Amendment

Cases:

• Ayre v. State, 291 Md. 155, 163, 433 A.2d 1150 (1981)
• Byrd v. State, 16 Md. App. 391, 397, 297 A.2d 312 (1972)
• Lank v. State, 219 Md. 433, 436, 149 A.2d 367 (1959)
• Johnson v. State, 38 Md. App. 100, 109-10, 379 A.2d 436 (1977)
• United States v. Miller, 471 U.S. 130, 134-35 (1985)
• Faretta v. California, 422 U.S. 806, 818 (1975)
• Benton v. Maryland, 395 U.S. 784, 796 (1969)
• Newton v. State, 280 Md. 260, 373 A.2d 262 (1977)
• Blockburger v. United States, 284 U.S. 299 (1932)
• Shell v. State, 307 Md. 46, 51 n.2, 512 A.2d 358 (1986)
• State v. Ferrell, 67 Md. App. 631, 643, 508 A.2d 1023 (1986)
• Veney v. State, 227 Md. 608, 614, 177 A.2d 883 (1962)
• Hurtado v. California, 110 U.S. 516, 534-35 (1884)
• Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972)
• Moaney v. State, 28 Md. App. 408, 416, 346 A.2d 466 (1975)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CRIMINAL LAW

Constitutional Law—Lesser Included Offenses—Charging Document Need Not Explicitly Designate Lesser Included Offense If All Elements Are Properly Alleged.

May 24, 1988

Alexander J. Palenscar, Esquire
Deputy State's Attorney for
Baltimore City

You have requested our opinion on whether a charging document that explicitly charges only a single crime would be legally sufficient to support a prosecution and conviction of the accused on lesser offenses included in the crime charged.
For the reasons given below, we conclude that a charging document is legally sufficient for that purpose if its averments clearly allege all the elements of the lesser included offense and the specific conduct charged in connection with that offense. Under those circumstances, neither the United States Constitution nor the Maryland Declaration of Rights requires that the lesser included offense be explicitly designated.

                                    I
                             Background

At present, charging documents commonly contain multiple counts.1 Those counts may allege the commission of a greater crime, for example, robbery with a deadly weapon, and also specifically allege the commission of any lesser offense included within the greater, for example, robbery or attempted robbery. At the trial, the State's Attorney's Office may present evidence to prove all or fewer than all of the offenses charged; by the same token, the defendant may

1
The term "charging document" means "a written accusation alleging that a defendant has committed an offense," including an indictment returned by a grand jury or an information filed by a State's Attorney. Rule 4-102(a).

ultimately be convicted of a lesser included offense and be acquitted of the greater.
The Office of the State's Attorney for Baltimore City proposes to begin using a single-count charging document in these cases, explicitly charging only the commission of the greater crime. The use of single-count charging documents would have the desirable effect of simplifying recordkeeping. Your concern, however, is whether it would prevent the State's Attorney's Office from continuing to seek convictions on only the lesser included offenses in appropriate cases.

                                       II
                    Constitutional Considerations

The Sixth Amendment to the United States Constitution provides in part that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation ...."2 Similarly, Article 21 of the Maryland Declaration of Rights provides "[t]hat in all criminal prosecutions, every man hath a right to be informed of the accusation against him [and] to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defense...." The Court of Appeals has described the underlying purpose of these provisions as follows:

  The purposes served by these organic requirements concerning the criminal charge are several: (i) to put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (ii) to protect the accused from a future prosecution for the same offense; (iii) to enable the defendant to prepare for his trial; (iv) to provide a basis for the court to consider the legal sufficiency of the charging document; and (v) to inform the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case.

Ayre v. State, 291 Md. 155, 163, 433 A.2d 1150 (1981) (citations omitted).
The test for the sufficiency of an indictment is two-pronged: The indictment must put the accused on notice of the charges, and it must preclude the possibility of a subsequent prosecution for the same offense. Byrd v. State, 16 Md. App. 391, 397, 297 A.2d 312 (1972).

2
That guarantee is part of the guarantee of due process under the Fourteenth Amendment and, therefore, applies in state as well as federal prosecutions. Faretta v. California, 422 U.S. 806, 818 (1975).

Accord Lank v. State, 219 Md. 433, 436, 149 A.2d 367 (1959).3 To give the accused adequate notice of the charges, the charging document must allege all the essential elements of the crime charged and must "furnish the defendant such a description of the particular act alleged to have been committed as to inform him of the specific conduct with which he is charged." Id. (citations omitted).4
Nonetheless, we do not believe that it is necessary for a charging document to explicitly designate each lesser offense included in the crime charged. "It is a well-established general rule that when an indictment charges an offense which includes within it another, lesser offense, or one of a lower degree, the defendant, although acquitted of the higher offense, may be convicted of the lesser ...." 41 Am. Jur 2nd Indictments & Informations §313 (1968). Accord, 42 C.J.S. Indictments & Informations §271 (1944); 2 Wharton's Criminal Procedure, §292 (12th ed. 1975). The Court of Special Appeals has expressly held that this rule applies in Maryland: If a lesser offense is necessarily included in a greater, conviction of the lesser offense is permissible under a document that explicitly charges only the greater. Johnson v. State, 38 Md. App. 100, 109-10, 379 A.2d 436 (1977).5
A charging document must clearly allege and describe all elements of the crime charged, necessarily including all elements of any lesser included offense. See Ayre, 291 Md. at 163. A charging document that clearly alleges and describes the elements of the lesser included offense would put the accused on notice of those averments relating to the lesser offense. United States v. Miller, 471 U.S. 130, 134-35 (1985).6 Under these circumstances, the charging document would also

3
The Fifth Amendment provision that no person may "be subject for the same offense to be twice put in jeopardy of life or limb" applies to the states. Benton v. Maryland, 395 U.S. 784, 796 (1969). For a discussion of "the test for determining the identity of offenses" for double jeopardy purposes, see Newton v. State, 280 Md. 260, 373 A.2d 262 (1977). Cf. Blockburger v. United States, 284 U.S. 299 (1932).
4
In Ayre, the charging documents in a prosecution for distributing obscene matter were held to be fatally defective because they did not directly allege the obscenity of the matter distributed or that the distribution was "knowing", two essential elements of the statutory crime. 291 Md. at 162 and 166.
5
In Johnson, this issue was raised and decided incidentally to the central issue of double jeopardy. The Court of Appeals has issued writs of certiorari in several cases decided since Johnson to determine this issue, but it has never been able to reach the issue. See Shell v. State, 307 Md. 46, 51 n.2, 512 A.2d 358 (1986).
6
In Miller, the Supreme Court held that a prosecution for a narrow offense contained

Note 6 continued
within the broad offense alleged in an indictment also did not violate the Fifth Amendment right to be tried only on charges presented in an indictment returned by a grand jury. 471 U.S. at 144. That right, however, does not apply against the states. Hurtado v. California, 110 U.S. 516, 534-35 (1884). See also Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972). Nor does the Maryland Constitution or any other State law grant a right to indictment by a grand jury. Moaney v. State, 28 Md. App. 408, 416, 346 A.2d 466 (1975).

be sufficient to bar any subsequent prosecution based on the same act. See State v. Ferrell, 67 Md. App. 631, 643, 508 A.2d 1023 (1986). We believe that such a charging document, accordingly, would not violate the rights of an accused under the United States Constitution or Article 21 of the Declaration of Rights solely because it did not specifically designate, in a separate count, a lesser offense necessarily included in the crime charged. Hence, such a charging document would support a prosecution or conviction for the lesser offense alone.
We caution, however, that this is so only if the lesser offense is in fact a lesser included offense. A "lesser included offense" is an offense the essential elements of which are also essential to the greater: "An offense qualifies as a lesser-included offense only if the elements of the included offense are fewer in number than the elements of the greater offense, and only if the greater offense cannot be committed without also committing the lesser offense." 2 Wharton's Criminal Procedure, §292. Thus, if an essential element of the lesser offense is not essential to the greater, a document charging only the greater offense will not support a prosecution for the lesser. Cf. Veney v. State, 227 Md. 608, 614, 177 A.2d 883 (1962) (no merger of offenses for double-jeopardy purposes where essential element of lesser is not essential to greater). Put another way, "unless the allegations relating exclusively to the greater crime can be stricken from the indictment and still leave averments relating to the lesser crime sufficient to constitute the latter, the lesser is not necessarily included within the greater so as to support a conviction of the lesser offense." 42 C.J.S. Indictments & Informations, §275.

                                     III
                                Conclusion

In sum, it is our opinion that a charging document need not explicitly designate a lesser offense necessarily included in the crime charged. However, to support a prosecution and conviction for the lesser included offense, the charging document must clearly allege all the essential elements of the offense and the specific conduct charged in connection with that offense.

        J. Joseph Curran, Jr., Attorney General
        C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice