State v. Jackson, 284 P.3d 1266

Defendant appeals a second-degree assault conviction (ORS 163.175) and argues the trial court erred by not instructing on the lesser-included fourth-degree assault (ORS 163.160).
Indictment charged knowingly causing physical injury by means of a knife; question is whether lesser-included instruction could be based on evidence defendant did not knowingly use the weapon.
Defendant testified about head injuries and memory gaps, suggesting possible lack of knowledge in using the knife during later altercations.
Two defenses were presented: self-defense and intoxication/diminished coherence affecting mental state; defendant admitted carrying a knife.
Trial court declined the fourth-degree instruction; jury was instructed on self-defense and intoxication; defense exception noted the omission.
Court reverses second-degree conviction and remands for new trial on that charge; other convictions (menacing and unlawful use of a weapon) remain.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Entitlement to a fourth-degree instruction	Boyce supported giving a lesser instruction when composite evidence could show lack of knowledge.	There was evidence defendant did not act knowingly with the knife due to head injuries and memory gaps.	Instruction required; error to deny
Application of Boyce/Leckenby framework	Composite evidence could show intent to injure without using a dangerous weapon.	Due to memory problems, no complete theory supported by evidence for lesser offense.	Court applied proper framework; grants instruction
Harmless error analysis	Error should be treated as harmless given strong evidence of guilt.	Factual dispute about mental state requires jury instruction.	Not harmless; remand warranted

State v. Gibbons, 228 Or 238 (1961) (indictment includes lesser offenses by implication)
State v. Wille, 317 Or 487 (1993) (lesser-included offenses within statute or accusatory instrument)
State v. Perks, 118 Or App 336 (1993) (indictment charging second-degree assault implicitly charges fourth-degree)
State v. Naylor, 291 Or 191 (1981) (disputed issue of fact enabling lesser-included instruction)
State v. Cunningham, 320 Or 47 (1994) (same principle for lesser-included offenses)
State v. Leckenby, 200 Or App 684 (2005) (intoxication and memory affecting mental state and lesser offenses)
State v. Boyce, 120 Or App 299 (1993) (composite verdicts could support fourth-degree assault)
State v. Berry, 238 Or App 277 (2010) (weighing evidence against instruction is improper; jury should decide)