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State v. Zolotoff

Summarized by: 

Date Filed: 11-21-2012
Case #: A145303
Nakamoto, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145303.pdf

Criminal Law: If evidence in the record supports a jury instruction of a lesser-included offense, the State is required to give the instruction to ensure that the jury has a complete statement of the law.

Defendant appealed his conviction of one count of possession of a weapon by an inmate, arguing that the trial court erred in refusing his request for a jury instruction for attempted possession of a weapon by an inmate. Two deputies found a broken spoon hidden under the toilet in Defendant’s cell at Marion County Correctional Facility. They believed that the spoon was in the process of being altered to make a weapon, even though it was not sharpened. Before trial, Defendant requested a jury instruction for attempted possession of a weapon by an inmate. The trial court refused and the jury found Defendant guilty. On appeal, the State conceded the trial court erred because there was sufficient evidence to support the instruction and the instruction correctly stated the law, but argued that the error was harmless because the jury found Defendant guilty of the charged crime. Thus, it was unnecessary for the jury to consider the attempt crime. The Court rejected the State’s argument and found that refusing the instruction was reversible error because it could have had an effect on the jury’s evaluation of the charged offense. Reversed and remanded.