ORS 136.465
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]

Source: Section 136.465 — Verdict where crime or attempt included within charge, https://www.­oregonlegislature.­gov/bills_laws/ors/ors136.­html.

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 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), it was error to convict him of second degree assault (ORS 163.175), 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), 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) 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)

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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