State v. Harper , 132 Or. App. 29 ( 1994 )

De MUNIZ, J.,

concurring.

While I concur in the majority’s result, I do not agree with its characterization of defendant’s requested instructions as the “converse” of the ones given. The requested instructions sought to do the same as instructions regarding lesser included offenses when there is a question of mens rea. Those instructions explain differences in mental culpability. As the majority recognizes, lesser included offenses constitute a “theory of the case.” There is no dispute that, if defendant’s instructions were for lesser included offenses, she would have been entitled to have them given, if there was evidence to support them.

Nonetheless, the analogy here to instructions for lesser included offenses does not mean that defendant had a right to have the instructions given. That right is grounded in statute, State v. Washington, 273 Or 829, 543 P2d 1058 (1975), and is restricted to circumstances when the offenses are included either under the statutory definition or under the indictment:

“[T]here are other reasons for retaining the restrictions on the defendant’s right to request lesser included offense instructions. The first, of course, is that in this state the statutes [ORS 136.460 and ORS 136.465] seem to preclude instructions which do not have a basis either in the statutory-framework or in the indictment itself. Second, we feel that, even in the absence of those statutes, the interests of judicial administration would require the continuance of the present limitations on the defendant’s right to lesser included offense instructions. If defendant’s approach were to be adopted, we believe that trial courts would he receiving requests for instructions limited only by the imagination and ingenuity of the defendant. Requests for such instructions would act only to further complicate the jury’s decision-making process. * * * [They] would not only needlessly prolong the court’s instructions, but would also add to the number of issues which the jury would be required to consider — thereby substantially increasing the possibility for jury confusion and compromise verdicts.” 273 Or at 839. (Footnote omitted.)

Under that rationale, I conclude that defendant’s instructions did not present a ‘ ‘theory of the case’ ’ that the trial court was required to give.

Here, there were no lesser included offenses having as culpable mental states criminal negligence, carelessness or civil negligence. Thus, insofar as mental culpability was concerned, only the question of recklessness was before the jury. The effect of defendant’s requested instructions would have been to interject issues that the jury would have had to consider, but which were not included in the indictment or statutes.