Oregon Supreme Court - Jan. 30, 2013
by: Abassos • January 30, 2014 • no comments
Harmless Error - Lesser Included Offenses
A trial court's failure to give a lesser included instruction will be found by an appellate court to be a harmless error if "the court can conclude from the evidence, arguments, and instructions in the particular case that the jury would have reached the same conclusion had it been correctly instructed." A court is required to give a lesser included instruction where it is requested and the evidence supports it. ORS 136.465. Here, defendant was charged with possession of a restricted weapon by an inmate for having a broken spoon in his cell. The trial court rejected defendant's requested instruction for attempted possession of a restricted weapon by an inmate. Because the jury could either find from the evidence that the spoon was a weapon or that the spoon was going to be made into a weapon, it is not possible to conclude that the jury would have reached the same conclusion if it had been given the attempt instruction. The "erroneously omitted instruction would have told the jurors that there was a legal distinction between taking a substantial step toward making the spoon into a weapon and completing the task. In other words, the definition of the term "weapon" told the jury what a weapon is, but it did not tell the jury that the spoon was not a weapon if it was an object that defendant was still in the process of making into a weapon." Therefore, the error was not harmless. State v Zolotoff, 354 Or ___ (1/30/2013)
