|CALENDAR STATUS: Active|
|State of Oregon v. Daniel Steven Zolotoff|
|Supreme Court Case 1|
|Timothy Sylwester on behalf of the State of Oregon|
David O. Ferry on behalf of Daniel Steven Zolotoff
Statement of Issues:
|State of Oregon v. Daniel Steven Zolotoff (S061003) (A145303) (appeal from Marion County Circuit Court; opinion reported at 253 Or App 593, 291 P3d 781 (2012)).|
The State of Oregon has been granted review of a Court of Appeals decision that reversed and remanded a trial court decision refusing to give the defendant's requested jury instruction on a lesser-included offense. The Court of Appeals agreed with the state's concession that the trial court had erred, but rejected the state's argument that the error was harmless because the jury had convicted on the charged offense, and that under the "acquittal first" requirement of ORS 136.460(2), the jury would not have had the opportunity to consider the lesser-included offense.
On review, the issue is:
If a trial court erroneously fails to instruct the jury on a lesser-included offense, is the error harmless if the jury returns a guilty verdict on the charged offense?
The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating: