Alotaibi v. StateAnnotate this Case
At issue was whether, under the statutory definitions existing in 2012, the offense of statutory sexual seduction is a lesser-included offense of sexual assault when that offense is committed against a minor under fourteen years old. In applying the elements test, the Supreme Court determined (1) a statutory element that serves only to determine the appropriate sentence for an offense but has no bearing as to the guilt for the offense is an element of the offense for purposes of a lesser-included-offense analysis; and (2) the elements of only one of the alternative means need be included in the greater, charged offense so that the defendant is entitled to an instruction on the lesser offense. Applying the above principles to the statutes at issue, the Supreme Court held (1) statutory sexual section, as defined in Neb. Rev. Stat. 200.364(5)(a), is not a lesser-included offense of sexual assault even where the victim is a minor, Neb. Rev. Stat. 200.366(1), because statutory sexual seduction contains an element not included in the greater offense; and (2) the district court did not err in refusing to give a lesser-included-offense instruction on statutory sexual seduction in this case.