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Oregon Revised Statutes

Or. Rev. Stat. § 136.460 (2026)

Verdict where crime consists of degrees; lesser included offenses

✓ current as of May 2026
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      136.460 Verdict where crime consists of degrees; lesser included offenses. (1) Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory instrument and guilty of any degree inferior thereto or of an attempt to commit the crime or any such inferior degree thereof.

      (2) The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense. If there is more than one lesser included offense, the jury shall consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included offense only after finding the defendant not guilty of any more serious lesser included offenses.

      (3) When a jury finds a defendant guilty of a lesser included offense, the court, upon a request by the state or defendant, shall poll the jury on the original charge. If fewer than the required number of jurors vote to find the defendant not guilty on the original charge, the court shall not receive the verdict and shall instruct the jury to continue deliberations.

      (4) If the jury is unable to reach a decision on the original charge, the state and defendant may stipulate that the jury may consider any lesser included offense. [Formerly 136.650; 1997 c.511 §1]

Notes of Decisions
Cited in 61 cases (9 in the last 5 years), 1975–2026 · leading case: State v. Turnidge, 374 P.3d 853 (Or. 2016).
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State v. Turnidge, 374 P.3d 853 (Or. 2016). · cites it 8× “Analysis As context for our analysis, we begin by examining the Oregon cases that led to the adoption of ORS 136.460, the statute that requires a jury to acquit a defendant on the charged offense before considering any lesser-included offenses.”
Pereida-Alba v. Coursey, 342 P.3d 70 (Or. 2015). · cites it 16× “To the extent that is petitioner’s argument, it fails to take account of ORS 136.460. If the trial court had instructed the jury on the lesser-included charge of third-degree robbery, then the state would have been entitled to an acquittal-first instruction—namely, it would have…”
State v. Palaia, 614 P.2d 1120 (Or. 1980). · cites it 36× “" A similar statute, ORS 136.460, permits a jury to acquit a defendant of the degree of the crime charged in the accusatory instrument and convict the defendant of any inferior degree of the crime or of an attempt to commit the crime.”
State v. Zolotoff, 320 P.3d 561 (Or. 2014). · cites it 17× “The legislative history of ORS 136.460 supports that conclusion. ORS 136.”
State v. Cunningham, 880 P.2d 431 (Or. 1994). · cites it 6× “That constitutes whatever record during the appeal that may be needed.”
State v. Turnidge, 373 P.3d 138 (Or. 2016). · cites it 7× “” Defendant appears to assert that ORS 136.460 does not apply to aggravated felony murder because the murder statutes do not describe murder offenses in terms of “degrees.”
State v. Ogden, 580 P.2d 1049 (Or. Ct. App. 1978). · cites it 8× “*1052 The state argues that ORS 136.460 and 136.465 require a different result from that reached in other jurisdictions.”
State v. Bowen, 135 P.3d 272 (Or. 2006). · cites it 3× “Defendant contends that, because the evidence justified a manslaughter instruction, the trial court’s refusal to include lesser-included offenses to each aggravated murder count violated his rights under ORS 136.460 9 and ORS 136.465 10 and his rights under the United States…”
State v. Flores Ramos, 478 P.3d 515 (Or. 2020). “The state conceded that the failure to so instruct the jury had been error, but argued that the error was necessarily harmless because, even if the jury had been instructed on the lesser-included offense, it would also have been instructed, pursuant to ORS 136.460(2), that it…”
Wilson v. Belleque, 554 F.3d 816 (9th Cir. 2009). · cites it 2× “See Or. Rev. Stat. § 136.460 (2) (“Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense.”
State v. Garcia, 512 P.3d 839 (Or. Ct. App. 2022). · cites it 4× “ORS 136.460(2) provides that a jury “shall first con- sider the charged offense,” may consider a lesser included offense “[o]nly if the jury finds the defendant not guilty of the charged offense,” and “shall consider the lesser included offenses in order of seriousness” when…”
State v. Carson, 640 P.2d 586 (Or. 1982). · cites it 6× “'" We disagree and are of the opinion that the trial court gave the jury the correct verdict forms as required by ORS 136.460: "Upon a charge for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the accusatory…”
Show all 61 citing cases →
— Or. Rev. Stat. § 136.460(1) — 8 cases
State v. Gilmore, 562 P.3d 250 (Or. Ct. App. 2024).
State v. Turnidge, 373 P.3d 138 (Or. 2016). “” Defendant appears to assert that ORS 136.460 does not apply to aggravated felony murder because the murder statutes do not describe murder offenses in terms of “degrees.”
State v. Pachmayr, 185 P.3d 1103 (Or. 2008).
State v. Zimmerman, 12 P.3d 996 (Or. Ct. App. 2000).
State v. Gilmore, 336 Or. App. 706 (Or. Ct. App. 2024).
— Or. Rev. Stat. § 136.460(2) — 24 cases
State v. Turnidge, 374 P.3d 853 (Or. 2016). “Analysis As context for our analysis, we begin by examining the Oregon cases that led to the adoption of ORS 136.460, the statute that requires a jury to acquit a defendant on the charged offense before considering any lesser-included offenses.”
Pereida-Alba v. Coursey, 342 P.3d 70 (Or. 2015). “To the extent that is petitioner’s argument, it fails to take account of ORS 136.460. If the trial court had instructed the jury on the lesser-included charge of third-degree robbery, then the state would have been entitled to an acquittal-first instruction—namely, it would have…”
State v. Zolotoff, 320 P.3d 561 (Or. 2014). “The legislative history of ORS 136.460 supports that conclusion. ORS 136.”
State v. Flores Ramos, 478 P.3d 515 (Or. 2020). “The state conceded that the failure to so instruct the jury had been error, but argued that the error was necessarily harmless because, even if the jury had been instructed on the lesser-included offense, it would also have been instructed, pursuant to ORS 136.460(2), that it…”
State v. Garcia, 512 P.3d 839 (Or. Ct. App. 2022). “ORS 136.460(2) provides that a jury “shall first con- sider the charged offense,” may consider a lesser included offense “[o]nly if the jury finds the defendant not guilty of the charged offense,” and “shall consider the lesser included offenses in order of seriousness” when…”
— Or. Rev. Stat. § 136.460(4) — 2 cases
Leyva-Grave-De-Peralta v. Blacketter, 223 P.3d 411 (Or. Ct. App. 2009).
State v. Warner, 112 P.3d 464 (Or. Ct. App. 2005).
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