NOTE: Effective January 1, 2001, the Supreme Court and Court of Appeals revised ORAP 5.45, relating to the form of assignments of error, to require that each assignment of error be numbered, to show that the error was preserved or is error apparent on the record, and to state the standard of review. Appendix H, which contains examples of assignments of error, was not amended at that time, but now has been amended to reflect the 2001 revisions. If you already have ordered and received the 2001 version of ORAP, please replace the existing Appendix H with this amendment.

APPENDIX H

Illustrations for Rule 5.45

Model Complete Assignment of Error; Other Partial Assignments of Error

Illustration 1
(Model Complete Assignment of Error)

FIRST ASSIGNMENT OF ERROR

The trial court erred in declining to give defendant's requested menacing instruction on the ground that menacing is not a lesser-included offense of robbery in the first and second degrees.

A. Preservation of Error

At the close of the evidence, defendant submitted a requested instruction on menacing. (ER-_____). By way of memorandum in support of the requested instruction, defendant argued to the trial court that menacing is necessarily included in the statutory definition of robbery in the first degree (the crime with which defendant was charged) and that the record contained evidence from which a jury could find defendant guilty of the lesser charge and not guilty of the greater charge. (ER-_____. The trial court declined to give the instruction, stating:

"I'm not going to give the requested instruction on menacing. Menacing is not expressly included in the charging instrument and, in my view, is not a statutorily lesser-included offense of the crime of robbery because it does not share all of the same elements as robbery. The prosecutor could have charged defendant with menacing, but didn't. And without a match on the elements of the two offenses, a lesser-included instruction isn't proper."

(Tr 142).

B. Standard of Review

The court reviews the trial court's decision either to give or to decline to give a requested jury instruction pursuant to a combination of standards of review. Regarding review of the record to support such an instruction, the court "review[s] the evidence in the light most favorable to the establishment of facts that would require those instructions." State v. Boyce, 120 Or App 299, 302, 852 P2d 276 (1993). Whether the language of the statute defining the lesser offense is necessarily included in the greater offense is a pure question of law, one that the court decides without any particular deference to its resolution below. See State v. Cunningham, 320 Or 47, 57, 880 P2d 43 (1994); State v. Moses, 165 Or App 317, 319, 997 P2d 251 (2000).

ARGUMENT
(Other Partial Forms for Assignments of Error)

Illustration 2

The court erred in denying (or allowing) the following motion:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of the court.]

Illustration 3

The court on examination of witness _____ erred in sustaining (or failing to sustain) objection to the following question:
[Show that the error was preserved, including setting forth verbatim the question, the objection made, the answer given, if any, offer of proof, if any, and the ruling of the court.]

Illustration 4

The court erred in denying (or sustaining) the motion for dismissal or direct verdict:
[Show that the error was preserved, including setting forth verbatim the motion and the ruling of the court.]

Illustration 5

The court erred in giving the following instruction:
[Show that the error was preserved, including setting forth verbatim the instruction (or citing to the excerpt of record, if the instruction is set forth verbatim in the excerpt of record), and the exception made to the instruction.]

Illustration 6

The court erred in holding ORS _____ (or Oregon Laws 19_____, chapter _____, section _____) unconstitutional (or unconstitutional):
[Show that the error was preserved, including setting forth verbatim the statutory provision and the manner in which constitutionality was challenged.]


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