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Asking for a Lesser-Included Instruction

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by: Ryan • August 29, 2012 • no comments

I don't think it's a contradiction for me to say that the trial lawyer (don't know who it is) did some above-average work work in St v Jackson, when she/he asked for a less-than-obvious lesser-included instruction in a M11 case, and at the same time for me to commend the COA -- in Pereida-Alba v. Coursey -- for agreeing with the trial court that the failure to ask for a lesser-included instruction on a M11 case amounted to inadequate representation.

In Jackson, the trial court's failure to give the instruction resulted in a reversal of the Assault II conviction on appeal. What made it better than average lawyering is that defense counsel asked for a lesser-included instruction when it wasn't immediately obvious that the defendant was entitled to one.

In Pereida-Alba, there was no reasonable justification for not asking for one. I encourage everyone to read both opinions and also shout out to the appellate attorneys in those two cases, Erin Galli and Joshua Crowther.

But the main reason for this post is to remind y'all that lesser-included offenses aren't always obvious. And it's the ones that aren't obvious that are most likely to be denied, and in turn, get you a reversal from the COA. Those of you who have my jury instruction outline have already seen these examples:

In a charge of attempted aggravated murder, you can get an instruction for recklessly endangering another person.

In State v. Moses, 165 Or App 317, 997 P2d 251, rev den, 331 Or 334, 23 P3d 986 (2000), the defendant was charged with attempted aggravated murder after firing shots into an occupied van. At trial, he requested that the court instruct the jury on the lesser-included offense of recklessly endangering another person. The court refused to give the instruction, and the jury convicted the defendant of attempted aggravated murder. We held on appeal that the instruction should have been given, because the indictment alleged facts that constituted reckless endangerment. The state argued that the error was harmless because the jury had necessarily found that the defendant acted intentionally and with intent to kill. We disagreed: "Because the court did not give the lesser-included instructions, the jury did not have a complete statement of the law, and we are unable to determine what the verdict would have been had the jury been properly instructed." Id. at 326 (citing State v. Naylor, 291 Ore. 191, 197-98, 629 P.2d 1308 (1981)).

Trotter v. Santos, 212 Or App 473, 157 P3d 1233 (2007)

Reckless burning can be a lesser-included of Arson. State v. Leckenby, 200 Or App 684, 117 P3d 273 (2005).

Menacing and Attempted Assault in the First Degree can be lesser-included of Attempted Murder with a Firearm. Trotter v. Santos, supra. ("We have previously held that attempted murder with a firearm includes both attempted first-degree assault with a firearm and menacing as lesser-included offenses. State v. Fox, 98 Or App. 356, 357, 779 P2d 197], rev den, 308 Or 608, 784 P2d 1101 (1989); State v. Rainwater, 26 Or App 593, 597, 553 P2d 1085 (1976).")