STATE v. TUBBY, 387 P.3d 918

Appellees Tubby and Wooten were tried jointly for First Degree Felony Murder; jury acquitted on that count but convicted them of Accessory to First Degree Felony Murder after the trial court instructed the jury that accessory was a lesser included offense. Appellees did not appeal; convictions became final.
The State filed a reserved question of law under 22 O.S. § 1053(3) asking whether Accessory to First Degree Felony Murder is a legally recognized lesser included offense of First Degree Felony Murder.
The issue requires two-step analysis: (1) legal determination whether the lesser offense can be included in law, and (2) whether the trial evidence warrants an instruction (the prima facie or "evidence" test under Shrum).
Oklahoma precedent splits between a strict statutory elements (elements) test and the Shrum evidence-based approach; prior cases held accessory after the fact is not a necessary lesser under the elements test but sometimes may be a related/lesser offense under evidence test.
The State’s record on appeal omitted the trial evidence (only jury instruction conference excerpts were provided) and also lacked the final judgment and proof of notice of the State’s intent to appeal.
Because the determination depends on the trial evidence, and the record was insufficient, the Court dismissed the State’s appeal as waived and ordered issuance of the mandate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Accessory to First Degree Felony Murder is a legally recognized lesser included offense of First Degree Felony Murder	Accessory is not a lesser included offense under the statutory elements test (State relies on Cummings)	Trial court permissibly instructed accessory as a lesser offense because under Shrum the evidence can support an accessory instruction	Appeal dismissed for insufficient record; Court did not resolve the legal question on the merits because the State failed to provide trial evidence and other required record items

State v. Campbell, 965 P.2d 991 (Okla. Crim. App. 1998) (requirements for State reserved-question appeals)
Shrum v. State, 991 P.2d 1032 (Okla. Crim. App. 1999) (adopted evidence/prima facie test for lesser-included/related offenses)
Cummings v. State, 968 P.2d 821 (Okla. Crim. App. 1998) (accessory-after-the-fact not a lesser offense under elements test)
Davis v. State, 268 P.3d 86 (Okla. Crim. App. 2011) (describes two-part analysis and prima facie evidence standard)
Glossip v. State, 29 P.3d 597 (Okla. Crim. App. 2001) (applied Shrum and found accessory-after-the-fact could be related to first-degree murder when prima facie evidence exists)
Miller v. State, 313 P.3d 934 (Okla. Crim. App. 2013) (declined accessory instruction where evidence did not establish prima facie case)
Hiler v. State, 796 P.2d 346 (Okla. Crim. App. 1990) (appellant must ensure sufficient record for appellate review)