State v. Smith

PER CURIAM

Defendant appeals his conviction for murder, assigning as error: (1) the trial court’s failure to give defendant’s requested instructions on manslaughter in the first and second degrees; (2) admitting photographs of a sliding glass door and of the victim’s corpse, and (3) in sentencing defendant to a mandatory minimum 25 years imprisonment.

We are satisfied that there is no evidence that defendant acted other than intentionally in killing the victim and that a jury could not rationally and consistently find defendant guilty of the lesser offense and innocent of the greater. State v. Washington, 273 Or 829, 543 P2d 1058 (1975). We are also satisfied that the photographs admitted in evidence were relevant to facts in issue and that the probative value of the photographs outweighed any possible prejudice to defendant. State v. Freeman, 232 Or 267, 374 P2d 453 (1962). The conviction is affirmed.

However, the trial court sentenced defendant to serve not less than 25 years before becoming eligible for parole pursuant to ORS 163.115(5). State v. Shumway, 291 Or 153, 630 P2d 796 (1981), holds that the minimum sentence imposed by that statute offends Article I, section 16, of the Oregon Constitution.

Conviction affirmed, sentence vacated and cause remanded for resentencing.