SUMMARY: “A court must instruct the jury on a lesser-included offense if: (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously omitting the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.”
Blair was convicted of intentional child abuse resulting in the death of her 22-month-old son, who was found dead in their residence after he had placed a staple in an electrical outlet and had been electrocuted. Evidence at trial was that the Blair had left her child in the care of her roommates caring for him sporadically over the three days preceding his death. The jury was instructed that it could find defendant (1) guilty of intentional child abuse resulting in death, (2) guilty of intentional child abuse, or (3) not guilty. Blair requested an instruction on negligent child abuse, but was refused. The Court, quoting State v. Molina, 271 Neb. 488, stated that “A court must instruct on a lesser included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.” The Nebraska Supreme Court ruled that the trial court’s refusal to give a jury instruction that included the lesser-included offense of negligent child abuse was reversible error and reversed and remanded for a new trial.