Criminal Trials

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]

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)


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Mar. 11, 2023