§ 8.6 Specific Pleading Issues
Library | Criminal Law in Oregon (OSBar) (2022 Ed.) |
§ 8.6 SPECIFIC PLEADING ISSUES
§ 8.6-1 Lesser Included Offenses
"'A lesser included offense is one that is included either in the statutory framework defining the greater and lesser offenses or in the accusatory instrument itself.'" State v. Cluver, 255 Or App 284, 285, 296 P3d 638 (2013), rev den, 355 Or 317 (2014) (quoting State v. Wille, 317 Or 487, 495 n 7, 858 P2d 128 (1993)). Lesser included offenses are included as a matter of law in the offenses charged in the indictment and need not be separately alleged. State v. Woodson, 315 Or 314, 319 & n 9, 845 P2d 203 (1993). It is, however, permissible to separately allege lesser included offenses. State v. McCauley, 8 Or App 571, 575, 494 P2d 438 (1972).
The following cases are exemplary of those dealing with lesser included offenses:
(1) Felony second-degree murder is a lesser included offense of first-degree felony murder. The state need not plead the lesser included crime separately, provide notice of its existence in discovery, nor raise it during the opening statement. See State v. Bockorny, 125 Or App 479, 490, 866 P2d 1230 (1993), adh'd to on recons, 126 Or App 504, 869 P2d 349, rev den, 319 Or 150 (1994).
(2) Intentional murder in the second degree as defined in ORS 163.115(1)(a) is a lesser included offense of first-degree felony murder as defined in ORS 163.107(1)(j). See Wille, 317 Or at 492-94.
(3) First-degree manslaughter is not a lesser included offense of first-degree murder when the first-degree murder is not intentional murder but, instead, felony first-degree murder involving the death of two or more victims; therefore, the manslaughter counts do not merge with the first-degree-murder counts. State v. Merideth, 149 Or App 164, 168-69, 942 P2d 803, rev den, 326 Or 58 (1997).
(4) First-degree manslaughter is a lesser included offense of intentional second-degree murder. The aspect of first-degree manslaughter requiring "circumstances manifesting extreme indifference to the value of human life" (ORS 163.118(1)(a)) is not a separate element of the crime but an accompanying circumstance. Intentionally killing someone demonstrates the requisite "extreme indifference," and, therefore, first-degree manslaughter is a lesser included offense. State v. Henry, 138 Or App 286, 288, 907 P2d 1133 (1995).
(5) Assault in the fourth degree is a lesser included offense of assault in the second degree. State v. Perks, 118 Or App 336, 847 P2d 866, rev den, 316 Or 142 (1993) (when the jury acquitted the defendant of assault in the second degree but could not reach a verdict on the lesser included offense of assault in the fourth degree, the defendant properly could be retried on the lesser included offense without amending the indictment).
(6) Assault in the second degree, committed by recklessly causing "serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life" (ORS 163.175(1)(c)), is not a lesser included offense of assault in the first degree. State v. Cook, 163 Or App 578, 586-87, 989 P2d 474 (1999).
(7) Assault in the third degree, committed by recklessly causing "physical injury by means of a dangerous or deadly weapon under circumstances manifesting extreme...
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