State v. Zolotoff, 253 Or. App. 593

Defendant, an inmate, was found in possession of a spoon shaped as a weapon; deputies testified it could be sharpened further to become a weapon.
Defendant requested a jury instruction on attempted possession of a weapon by an inmate; the court declined.
The state argued attempted possession requires the charged crime to require intent; the charged crime required knowledge.
The jury found defendant guilty of possession by an inmate; defendant appealed alleging error in omitting the attempt instruction.
The court held the attempt offense is cognizable despite differing mental states and the trial court erred in not giving the instruction;affirmed reversal and remand.
The court rejected the state's harmless-error argument and declined to enter a conviction for attempted possession, instead remanding for proper proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted possession of a weapon by an inmate is cognizable	State argues difference in mental state precludes attempt	Nakamoto contends attempt instruction appropriate	Yes, attempt is cognizable and instructional error
Whether the trial court erred by not giving the attempt instruction	State concedes correct law and record supports instruction	Nakamoto should have received the instruction	Error; reversible, not harmless
Appropriate remedy for error	State seeks remand with election to retry or convict for attempt	Nakamoto opposes conviction for attempt without trial; remand only	Remand required; cannot enter conviction for attempt; reverse and remand accordingly

State v. Wolfe, 288 Or 521 (1980) (intent required for attempts under specific statutes)
State v. Branch, 208 Or App 286 (2006) (instruction on lesser offenses supported by record)
State v. Leckenby, 200 Or App 684 (2005) (failure to give lesser-included offense instruction reversible)
State v. Moses, 165 Or App 317 (2000) (acquittal-first rule limitations on lesser offenses)
State v. Baty, 243 Or App 77 (2011) (attempts may be available despite different mental states)
State v. Taylor, 207 Or App 649 (2006) (standard for evaluating requested jury instruction)