State v. Cossette, 301 P.3d 954

Defendant appeals a conviction for unlawful possession of a controlled substance (hashish).
Trial court refused to give a special jury instruction stating that possession of less than an ounce of dried marijuana is a violation, not a crime.
Trooper seized pipe, initially charged for less than one ounce of marijuana, later testing indicated hashish.
Laboratory testing showed 0.38 grams of cannabis resin (hashish) in the pipe.
Amended indictment charged unlawful possession of cannabis resin under ORS 475.840(3); Oregon law then treated possession of less than an ounce of dried marijuana as a non-criminal violation under ORS 475.864(3).
On appeal, defendant argues the instruction would have allowed jurors to infer he possessed only dried marijuana; preservation of this theory is disputed; court affirms.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of the jury-instruction theory	State: preserved, instruction relevant	Defendant: preserved under theory that dried marijuana not criminal	Not preserved; trial court’s theory differed from appellate theory, so no review on the merits

State v. Wan, 251 Or App 74 (2012) (preservation and standard of review for trial-error arguments)
Engen, 164 Or App 591 (1999) (knowledge of substance not required to prove possession)
State v. Wyatt, 331 Or 335 (2000) (preservation and particularity requirements for identifying errors)
State v. Tryon, 242 Or App 51 (2011) (suas sponte review of preservation issues)
State v. Wentworth, 252 Or App 129 (2012) (preservation considerations despite concession)
State v. Baty, 243 Or App 77 (2011) (instructions must align with defendant's theory of the case)