State v. Zolotoff
320 P.3d 561
Or.2014Background
- Zolotoff, an inmate, was charged with possession of a weapon by an inmate under ORS 166.275 after deputies found a broken plastic spoon in his cell.
- The state and defense disputed whether the spoon could be a weapon or whether Zolotoff had merely begun turning it into a weapon, making a lesser-included offense of attempted possession applicable.
- The trial court denied Zolotoff’s request to instruct the jury on the lesser-included offense of attempted possession of a weapon by an inmate (ORS 136.465).
- The Court of Appeals reversed, holding the denial was not harmless error, and the state petitioned for review.
- ORS 136.460(2) requires acquittal of the charged offense before consideration of a lesser-included offense, but does not clearly preclude pre-deliberation instruction on lesser offenses.
- The Oregon Supreme Court affirms the Court of Appeals, reverses the circuit court, and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to instruct on a lesser-included offense was harmless | Zolotoff | Zolotoff | Not harmless; requires reversal |
| Effect of ORS 136.460(2) on Naylor’s reasoning | State | Zolotoff | ORS 136.460(2) supplants Naylor’s coercive-deliberation concern for acquittal-first; still permits consideration of lesser offenses |
| Whether ORS 136.460(2) precludes informing jurors of lesser-included offenses before deliberations | State | Zolotoff | Statute permits informing on lesser-included offenses before deliberations; does not preclude it |
Key Cases Cited
- State v. Naylor, 291 Or 191 (1981) (rejected harmless-error reasoning; endorses instruction on lesser-included offenses)
- State v. Bowen, 340 Or 487 (2006) (assumes jurors follow instructions; discusses harmless error in context of orderly deliberations)
- State v. Davis, 336 Or 19 (2003) (harmful vs harmless error standard applied to instructional errors)
- State v. Ogden, 35 Or App 91 (1978) (prior view on acquttal-first instruction and coercive effects)
- State v. Allen, 301 Or 35 (1986) (comments on coerced jury deliberations regarding order of charges)