ORS 136.460
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]

Source: Section 136.460 — Verdict where crime consists of degrees; lesser included offenses, https://www.­oregonlegislature.­gov/bills_laws/ors/ors136.­html.

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 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)

136.001
Right to jury trial
136.005
Challenge to jury panel
136.010
When issue of fact arises
136.030
How issues are tried
136.040
When presence of defendant is necessary
136.050
Reasonable doubt as to degree of crime committed by defendant
136.060
Jointly charged defendants to be tried jointly
136.070
Postponement of trial
136.080
Deposition of witness as condition of postponement
136.090
Procedure for taking deposition
136.100
Filing and use of deposition
136.110
Commitment of defendant after release
136.120
Dismissal when prosecutor unready for trial
136.145
Setting of court dates when presence of victim required
136.210
Jury number
136.220
Challenge for implied bias
136.230
Peremptory challenges
136.240
Challenge of accepted juror
136.250
Taking of challenges
136.260
Selection of alternate jurors
136.270
Oath, conduct and attendance of alternate jurors at trial
136.280
Substitution of alternate for discharged juror
136.285
Priority in trial schedule for defendants in custody
136.290
Limit on custody of defendant prior to trial
136.295
Application of ORS 136.290
136.300
Time limit on appeals to circuit court
136.310
Function of court
136.320
Function of jury
136.325
Jury not to be informed of and not to consider punishment that may be imposed
136.330
Trial procedure
136.345
When attendance of woman officer is required
136.347
Appointment, duties and compensation of woman officer
136.415
Presumption of innocence
136.420
Testimony to be given orally in court
136.425
Confessions and admissions
136.427
Confessions
136.430
Civil laws of evidence in criminal trials
136.432
Limitation on court’s authority to exclude relevant evidence
136.433
Proving previous conviction
136.434
Challenge to validity of previous conviction
136.435
Admissibility of evidence from felony defendant not informed as required under ORS 135.070
136.437
Use of evidence in prosecution of prostitution offense
136.440
Testimony of accomplice
136.445
Motion for acquittal
136.447
Medical records
136.450
Number of jurors required for verdict
136.455
General verdict on plea of not guilty
136.460
Verdict where crime consists of degrees
136.465
Verdict where crime or attempt included within charge
136.470
Conviction or acquittal of one or more of several defendants
136.475
Verdict as to some of several defendants
136.480
Reconsideration of verdict when jury makes mistake as to law
136.485
Reconsideration of verdict which is not general verdict
136.490
Discharge of defendant upon acquittal
136.495
Proceedings after adverse general verdict
136.500
Motion in arrest of judgment
136.505
Effect of allowance of motion
136.515
Order when evidence shows guilt
136.525
Order when evidence is insufficient
136.535
New trial
136.555
Subpoena defined
136.557
Issuance of subpoena by magistrate for witnesses at preliminary examination
136.563
Issuance of subpoena by district attorney for witnesses before grand jury
136.565
Issuance of subpoena by district attorney for witnesses at trial
136.567
Issuance of subpoena for witnesses for defendant
136.570
Application for subpoenas for more than 10 witnesses
136.575
Forms of subpoenas
136.580
Subpoenas when books, papers or documents are required
136.583
Seizure or production of papers, documents or records from recipient
136.585
By whom subpoena is served
136.595
How subpoena is served
136.600
Certain civil procedures applicable in criminal context
136.602
Witness fees payable by county
136.603
Payment of witness who is from outside state or is indigent
136.608
Application procedure
136.611
Court action upon receipt of application
136.612
Hearing
136.614
Witness held in detention facility
136.616
Deposition to perpetuate testimony
136.617
Motion to compel witness who may be incriminated to testify
136.619
Immunity of witness compelled to testify
136.623
Definitions
136.625
Where witness material to proceeding in another state is in this state
136.627
Where witness material to proceeding in this state is in another state
136.633
Immunity of witness from arrest or service of process
136.635
Construction of ORS 136.623 to 136.637
136.637
Short title
136.643
Defendant as witness
136.645
Codefendant as witness
136.655
Spouse as witness
136.675
Conditions for use of testimony of persons subjected to hypnosis
136.685
Required explanations by law enforcement personnel to hypnosis subject
136.695
Evidence obtained in violation of ORS 136.675 or 136.685 inadmissible
136.760
Definitions for ORS 136.765 to 136.785
136.765
Notice to defendant
136.770
Enhancement fact related to offense
136.773
Enhancement fact related to defendant
136.776
Effect of waiver of right to jury trial
136.780
Evidence
136.785
Burden of proof
136.790
Notice to defendant upon remand
136.792
Jury upon remand
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