2017 ORS 136.465¹
Verdict where crime or attempt included within charge

In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime. [Formerly 136.660]

See also annota­tions under ORS 136.660 in permanent edi­tion.

Notes of Decisions

Under the re­quired evidence rule, driving while under the influence of intoxicating liquor is not an of­fense necessarily included in neg­li­gent hom­i­cide. State v. Elliott, 6 Or App 436, 488 P2d 1189 (1971)

A di­rected verdict of acquittal of the more serious of­fense upon comple­tion of the state’s evidence does not preclude submission to the jury of a lesser included of­fense. State v. Bell, 14 Or App 531, 513 P2d 811 (1973), Sup Ct review denied

Lesser included of­fense instruc­tion should be given only when disputed issues of fact would enable the jury ra­tionally to find that the greater of­fense is not proven, but that the ele­ments of the lesser of­fense have been proved. State v. Williams, 16 Or App 48, 517 P2d 311 (1973), aff’d 270 Or 152, 526 P2d 1384; State v. Palaia, 289 Or 463, 614 P2d 1120 (1980)

to Determine If An Offense Is “Necessarily Included,” the Court Should Limit Itself to An Analysis of the Rela­tionship Between the Two Offense Categories

B1.the statutory defini­tions of the of­fenses. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (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)

Only limita­tion on right of pros­e­cu­­tion or defendant to request lesser included of­fense instruc­tion is that there must be evidence or inference that can be drawn from evidence to support instruc­tion. State v. Washington, 273 Or 829, 543 P2d 1058 (1975); State v. Watkins, 47 Or App 777, 615 P2d 394 (1980)

Under evidence 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 136.460 (Verdict where crime consists of degrees) 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

Menacing is not lesser included of­fense of carrying dangerous weapon with intent to use. State v. Cummings, 33 Or App 265 (1978)

Where state relied on precisely same act to es­tab­lish “use-physical-force” ele­ment of robbery and “cause-physical-injury” ele­ment of assault, defendant’s assault con­vic­­tion merged into robbery con­vic­­tion. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Where defendant was charged with first de­gree robbery (ORS 164.415 (Robbery in the first degree)), it was error to convict him of sec­ond de­gree assault (ORS 163.175 (Assault in the second degree)), as every ele­ment of that crime was not an ele­ment of first de­gree robbery under the statutory scheme or the indict­ment. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979)

Offense Is Lesser Included Offense If

1) ele­ments of lesser of­fense are included in charged of­fense; or 2) facts alleged in charging instru­ment expressly include con­duct describing ele­ments of lesser of­fense. State v. Moroney, 289 Or 597, 616 P2d 471 (1980); State v. Torres, 182 Or App 156, 48 P3d 170 (2002), on reconsidera­tion 184 Or App 515, 59 P3d 47 (2002)

Where defendant, charged with first de­gree burglary (ORS 164.225 (Burglary in the first degree)), presented evidence that he did not enter building and that he did not enter or remain upon the premises with an intent to commit a crime there, evidence created dispute as to issues of fact which would have enabled jury to find that ele­ments of greater of­fense had not been proven and failure to instruct on lesser of­fense of crim­i­nal trespass in sec­ond de­gree (ORS 164.245 (Criminal trespass in the second degree)) was error. State v. Naylor, 291 Or 191, 629 P2d 1308 (1981)

Instruc­tion on lesser included of­fense is not re­quired when evidence in record does not ra­tionally support verdict of guilty of lesser of­fense and acquittal on greater of­fense. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Crime of inten­tional mur­der is “necessarily included” in crime of ag­gra­vat­ed mur­der. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Lesser included of­fense need not be pleaded separately or notice of lesser included of­fense given to de­fense by discovery or inclusion in opening argu­ment. State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993); 126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

Viola­tion not necessarily included in crime with which defendant is charged. State v. Swanson, 237 Or App 508, 240 P3d 63 (2010), aff’d 351 Or 286, 266 P3d 45 (2011)

“[A]ny crime” means of­fense for which sen­tence of im­pris­on­­ment is authorized.” State v. Swanson, 351 Or 286, 266 P3d 45 (2011)

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.