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State v. Cluver

Summarized by: 

Date Filed: 02-13-2013
Case #: A146538
Brewer, J. for the Court; Armstrong, P. J.; and Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146538.pdf

Criminal Procedure: Criminal defendants are entitled to have lesser-included offenses included in jury instructions despite the likelihood of being convicted of the greater offense.

Defendant appealed from his conviction for first-degree sodomy. He argued that the trial court erred by failing to include the lesser-included offense of second-degree sexual abuse in the jury instruction. While the State agreed that second-degree sexual abuse is a lesser-included offense of first-degree sodomy, it argued that any error in failing to give the instruction was harmless. The Court of Appeals held that the error was not harmless because the instructions given must depend on the evidence adduced at trial, not the logical ties between the instruction and the theory. The Court also held that Defendant was entitled to the lesser-included offense instruction even though he was convicted of the greater offense. Reversed and remanded.