2017 ORS 136.460¹
Verdict where crime consists of degrees
  • lesser included offenses

(1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.

(2) The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense. If there is more than one lesser included offense, the jury shall consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included offense only after finding the defendant not guilty of any more serious lesser included offenses.

(3) When a jury finds a defendant guilty of a lesser included offense, the court, upon a request by the state or defendant, shall poll the jury on the original charge. If fewer than the required number of jurors vote to find the defendant not guilty on the original charge, the court shall not receive the verdict and shall instruct the jury to continue deliberations.

(4) If the jury is unable to reach a decision on the original charge, the state and defendant may stipulate that the jury may consider any lesser included offense. [Formerly 136.650; 1997 c.511 §1]

See also annota­tions under ORS 136.650 in permanent edi­tion.

Notes of Decisions

In determining whether an of­fense is lesser included, the court’s considera­tion should be limited to the statutory defini­tion of the of­fenses and the indict­ment in the particular case. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

Theft in the sec­ond de­gree by receiving was not a lesser included of­fense within first de­gree burglary. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

Driving under the influence of liquor was a lesser included of­fense within crim­i­nally neg­li­gent hom­i­cide when alleged in the indict­ment as one ele­ment thereof. State v. Deveraux, 20 Or App 358, 531 P2d 749 (1975)

Trial courts can, and when supported by evidence should, instruct on ele­ments of viola­tion of pos­ses­sion of less than ounce of marijuana at conclusion of trial involving pos­ses­sion of quantity exceeding one ounce. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975)

Trial court may instruct on included viola­tion as well as misdemeanor or felony. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975); State v. Mink, 30 Or App 339, 567 P2d 1033 (1977)

Crime of sexual abuse is not lesser included of­fense to crime of burglary. State v. Nye, 273 Or 825, 543 P2d 1041 (1975)

“Statutory” sec­ond de­gree rape is not necessarily “de­gree inferior” to forcible first de­gree rape within meaning of this sec­tion. State v. Boyum, 25 Or App 51, 548 P2d 172 (1976)

Where evidence existed in record that defendant charged with mur­der had consumed significant amounts of alcohol on afternoon and evening of mur­der, defendant was entitled under this sec­tion and ORS 136.465 (Verdict where crime or attempt included within charge) to instruc­tion on lesser included of­fense of manslaughter in first de­gree. State v. Thayer, 32 Or App 193, 573 P2d 758 (1978), Sup Ct review denied

It was not error for trial court to refuse to instruct on “lesser included of­fense” of escape in third de­gree where evidence was uncontradicted that defendant had been convicted and sen­tenced for felony and was in custody and jury could not ra­tionally have found him guilty of lesser of­fense and innocent of greater of­fense. State v. Palaia, 289 Or 463, 614 P2d 1120 (1980)

Where record included evidence from which jury could ra­tionally and consistently find defendant guilty of lesser included of­fense, trial court erred by not giving jury instruc­tion for lesser included of­fense. State v. Boyce, 120 Or App 299, 852 P2d 276 (1993)

Where jury convicts defendant of charged of­fense, require­ment that jury acquit defendant of charged of­fense before considering lesser included of­fense does not excuse failure of court to give warranted instruc­tion on lesser included of­fense. State v. Moses, 165 Or App 317, 997 P2d 251 (2000), Sup Ct review denied; State v. Leckenby, 200 Or App 684, 117 P3d 273 (2005)

Use of jury instruc­tion requiring that jury acquit defendant of of­fense charged in indict­ment before considering lesser included of­fense does not deny defendant’s right to impartial jury. State v. Horsley, 169 Or App 438, 8 P3d 1021 (2000), Sup Ct review denied

Viola­tion not lesser included of­fense of crime. State v. Swanson, 237 Or App 508, 240 P3d 63 (2010), aff’d 351 Or 286, 266 P3d 45 (2011)

Where defendant may be guilty of lesser-included of­fenses, jury may be instructed before delibera­tions begin of both charged of­fense and any lesser-included of­fenses, but when deliberating jury must consider most serious of­fense first before sequentially considering lesser-included of­fenses. State v. Zolotoff, 354 Or 711, 320 P3d 561 (2014)

1 Legislative Counsel Committee, CHAPTER 136—Criminal Trials, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors136.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 136, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano136.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.