Argued and Submitted: September 19, 2013.
CC 09C42126; CA A145303. On review from the Court of Appeals.[*]
State v. Zolotoff, 253 Or.App. 593, 291 P.3d 781, (2012)
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Daniel C. Bennet, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.
[354 Or. 713] WALTERS, J.
In this case, the jury unanimously found defendant guilty of the charged offense of possession of a weapon by an inmate, ORS 166.275. On appeal, the state conceded that the trial court had erred when it denied defendant's request that it instruct the jury on the lesser-included offense of attempted possession of a weapon by an inmate, ORS 136.465. The Court of Appeals agreed, rejected the state's argument that that error was harmless, and reversed. State v. Zolotoff, 253 Or.App. 593, 291 P.3d 781 (2012). We affirm the decision of the Court of Appeals.
The uncontested facts establish that defendant was an inmate when deputies found a broken plastic spoon in his cell. The state acknowledges that a jury could have found from the evidence presented either that the spoon was a weapon at the time that the deputies found it or that defendant was in the process of making the spoon into a weapon and had not succeeded in that effort, so that the spoon was not yet a weapon. Consequently, the state acknowledges that, on this record, the jury could have convicted defendant either of the charged offense of possession of a weapon or of the lesser-included offense of attempted possession of a weapon. The state also concedes that the trial court erred in declining defendant's request for an instruction on the latter offense. The state contends, however, that the error was harmless. Whether the error requires reversal is the sole issue before this court.
In rejecting the state's harmless error argument, the Court of Appeals relied on this court's decision in State v. Naylor, 291 Or. 191, 629 P.2d 1308 (1981). In that case, the defendant was charged with first-degree burglary, and [354 Or. 714] the trial court denied the defendant's request for an instruction on the lesser-included offense of second-degree criminal trespass. The jury found the defendant guilty of the charged offense, and, on appeal, the Court of Appeals held that the trial court had erred in not instructing on the lesser-included offense. The Court of Appeals also decided, however, that the error was harmless because, in its view, the verdict demonstrated that the jurors did not believe the defendant's exculpatory version of the event.
State v. Naylor, 49 Or.App. 57, 61, 618 P.2d 1311(1980).
This court reversed. 291 Or. at 199. In doing so, this court explained, first, that Oregon law requires that the trial court, on request, instruct the jury on relevant lesser-included offenses. Id. at 195 (citing ORS 136.465 and State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975)). The trial court should give a lesser-included offense instruction, the court explained, " if there is a disputed issue of fact enabling the jury to find that all the elements of the greater offense have not been proven, but that all the elements of one or more of the lesser offenses have been proven." Id. at 195. Because, in Naylor, those conditions had been met, the court concluded that the trial court had erred by not giving the requested instruction. Id. at 196. The court then turned to the state's argument that the error was harmless under Article VII (Amended), section 3, of the Oregon Constitution.
On that issue, the court in Naylor reasoned that the trial court's failure to give the instruction " resulted in the case being submitted to the jury without the complete statement of the law necessary for the jury to properly exercise its function in the trial of [the] defendant." 291 Or. at 197-98. The court reversed because it was " unable to say what the verdict would have been had the theory of the defense been properly presented to the jury." Id. at 198. In reaching that conclusion, the court noted that ORS 136.465 " represents a legislative choice that both the state and the defendant shall have a right to have a jury, in ...