State v. Madison

Oregon appellate courts have “authority under [article VII, section 3, of the Oregon Constitution to direct entry of a lesser-included offense that we determine should have been entered by the trial court.” State v. Pittman, 276 Or App 491, 495, 369 P3d 99 (2016); see Or. Const. art. VII, § 3.

Defendant appealed convictions for promoting prostitution and resisting arrest. Defendant assigned error to the trial court’s denial of a motion for acquittal.  On appeal, Defendant argued that the trial court erred in denying his motion for acquittal because the State's evidence did not support a showing of an “act or enterprise of prostitution." under ORS 167.012(1)(d).  The State admitted the error, but argued that the Court should remand the case for entry of “attempted promoting prostitution.”  If evidence is insufficient, then the Court can “direct entry of a lesser-included offense that… should have been entered by the trial court.”  State v. Pittman, 276 Or App 491, 495, 369 P3d 99 (2016); see Or. Const. art. VII, § 3.  An offense will qualify as “lesser-included” if either “the elements of the lesser are present in the greater crime or… expressly set forth in the accusatory instrument.”  State v. Lee, 174 Or App 119, 125, 23 P3d 999 (2001).  Thus, the Court found all elements of attempted promoting prostitution is a lesser-included offense. Reversed and remanded for a judgment of attempted promoting prostitution and resentencing.