Legal Definitions - divisible offense

A divisible offense refers to a crime that is composed of one or more lesser, included offenses. This means that if a person commits the greater, more serious crime, they have necessarily also committed all the elements of the lesser crime(s) that are part of it. The lesser offense contains fewer legal elements than the greater offense, and proving the greater offense automatically proves the lesser one.

Here are some examples to illustrate this concept:

• Example 1: Robbery and Theft

  Robbery is generally defined as the taking of property from another person by force or threat of force. Theft, on the other hand, is simply the unlawful taking of another's property. If someone commits robbery, they have undeniably also committed theft, because the act of taking property is a fundamental part of both crimes. The additional element of force or threat of force is what elevates theft to robbery. Therefore, theft is a lesser included offense within robbery, making robbery a divisible offense.

• Example 2: Burglary and Criminal Trespass

  Burglary typically involves unlawfully entering a building or dwelling with the intent to commit a crime inside. Criminal trespass, in its simplest form, is merely the unlawful entry onto someone else's property without permission. If an individual is found guilty of burglary, they must have first unlawfully entered the property. This unlawful entry fulfills all the elements of criminal trespass. Thus, criminal trespass is a lesser included offense of burglary, demonstrating that burglary is a divisible offense.

• Example 3: Aggravated Assault and Simple Assault

  Simple assault involves an unlawful physical attack or threat of attack against another person. Aggravated assault includes all the elements of simple assault but adds further aggravating factors, such as using a deadly weapon, causing serious bodily injury, or assaulting a protected individual (like a police officer). If someone commits aggravated assault, they have necessarily committed the basic act of assault. The additional factors are what make it "aggravated." Therefore, simple assault is a lesser included offense within aggravated assault, illustrating that aggravated assault is a divisible offense.