State v. Zolotoff

ORS 136.460(2) prescribes the order of jury deliberations but does not preclude a trial court from informing jurors on the elements of relevant lesser-included offenses in advance of their deliberations on the greater charged offense, in addition, ORS 136.460(2) does not preclude the jury from contemplating the law as it applies to lesser-included offenses when deliberating about the charged offense.

A broken spoon was discovered in the jail cell of Defendant. Defendant was found guilty of possession of a weapon by an inmate. On Appeal, Defendant argued, and the State conceded, that the trial court erred in not instructing the jury of the lesser offense of attempted possession of a weapon by an inmate. Here the inquiry is whether or not instructing the jury on a lesser included offense was harmless error. The State argues that ORS 136.460 mandates an "acquittal first" procedure that mandates that jurors decide whether a defendant is guilty of the charged offense before they consider a lesser offense. The Court found that the legislative mandate that the jury consider applicable offenses in a particular order does not affect or eliminate the underlying legislative directive that, on request the jury also be instructed on the elements of relevant lesser-included offenses. The Court found that in determining whether an error in failing to instruct on a lesser-included offense is harmless, the question for an appellate court is whether 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. Here, the State conceded there was evidence that the jury could have found that the spoon was not a weapon and therefore the Defendant did not actually possess a weapon; he only attempted to make the spoon into a weapon. Affirmed, the judgment of the circuit court is reversed. Remanded for further proceedings.