Criminal Trials

ORS 136.460
Verdict where crime consists of degrees

  • lesser included offenses


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.


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.


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.


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 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)


Last accessed
Mar. 11, 2023