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State v. Cossette

Summarized by: 

Date Filed: 05-15-2013
Case #: A149285
Hadlock, J. for the Court; Ortega, P.J.; Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A149285.pdf

Appellate Procedure: Under State v. Baty, an argument is not preserved for appellate review if the argument substantially differs from the argument advanced at the trial court.

Defendant appealed his conviction of possession of hashish.  At trial, Defendant argued he was entitled to a special jury instruction because of the mens rea requirement of ORS 475.840(3). Defendant wanted the jury to be instructed that possession of less than an ounce of dried marijuana leaves, stems, and flowers is a violation, not a crime. Defendant's argument was that because he did not know that the substance was hashish he could not be convicted of the crime.  The  Defendant, however, argued on appeal that the jury instruction should have been allowed because it could have led a rational juror to believe that the substance was in fact only dried leaves, stems, and flower buds; not hashish.  Therefore the argument was not preserved for review. Affirmed.