¶1concurring in results:
¶2In his fifth assignment of error, appellant contends that the trial court erred in failing to give instructions on a lesser included offense. The majority correctly concludes that Section 1024.2 is not a lesser included offense of Section 1021.2, and that the evidence did not warrant a lesser included offense instruction. However, the majority erroneously states that a defendant’s failure to object to the instructions given or offer written requested instructions waives any error in the trial court’s failure to issue an instruction on a lesser included offense. This Court has held that if a lesser included offense is supported by the evidence, the trial court must give the instructions on that offense whether the defendant requests them or not. Penny v. State, 765 P.2d 797 (Okl.Cr.1988). Accordingly, had there been an error in failing to instruct on a lesser included offense in this case, such would not have been waived through appellant’s failure to object to the instructions given and submit his own written instructions.
¶3Furthermore, I reiterate my disagreement with the majority of this Court’s abandonment of the Aguilar-Spinelli standard as it applied to state constitutional attacks upon search warrant affidavits. See Langham v. State, 787 P.2d 1279, 1281-82 (Okl.Cr.1990) (Parks, P.J., concurring in result). As a matter of stare deci-sis, however, I am obligated to apply the Illinois v. Gates standard to the facts of the present case.