No. 5	                    January 30, 2014	711

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                  STATE OF OREGON,
                   Petitioner on Review,
                             v.
              DANIEL STEVEN ZOLOTOFF,
                  Respondent on Review.
          (CC 09C42126; CA A145303; SC S061003)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted September 19, 2013.
   Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause for petitioner on review. With him
on the brief were Ellen F. Rosenblum, Attorney General, and
Anna M. Joyce, Solicitor General.
   Daniel C. Bennett, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief was Peter Gartlan, Chief Defender.
   WALTERS, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.




______________
	  *  Appeal from Marion County Circuit Court, Darryl L. Larson, Judge. 253
Or App 593, 291 P3d 781 (2012).
712	                                                        State v. Zolotoff

     The state petitioned for review of a Court of Appeals’ decision reversing
defendant’s conviction for possession of a weapon by an inmate, ORS 166.275.
The Court of Appeals had held that the trial court’s denial of defendant’s request
that it instruct the jury on the lesser-included offense of attempted possession of
a weapon was not harmless error. Held: The decision of the Court of Appeals is
affirmed. The “acquittal first” provision enacted in ORS 136.460(2) does not nec-
essarily permit an appellate court to conclude that the jury would have reached
the same verdict on the charged offense even if it also had received instruction
on the lesser-included offense. Although in many instances a trial court’s failure
to give a lesser-included instruction may be harmless error, the question for an
appellate court is whether the court can conclude from the evidence, arguments,
and instructions in the particular case that the jury would have reached the same
conclusion had it been correctly instructed. The court cannot, on this record, con-
clude that the trial court’s failure to give defendant’s requested instruction did
not affect the result.
    The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 354 Or 711 (2014)	713

	          WALTERS, J.
	        In this case, the jury unanimously found defendant
guilty of the charged offense of possession of a weapon by an
inmate, ORS 166.275.1 On appeal, the state conceded that
the trial court had erred when it denied defendant’s request
that it instruct the jury on the lesser-included offense
of attempted possession of a weapon by an inmate, ORS
136.465.2 The Court of Appeals agreed, rejected the state’s
argument that that error was harmless, and reversed. State
v. Zolotoff, 253 Or App 593, 291 P3d 781 (2012). We affirm
the decision of the Court of Appeals.
	        The uncontested facts establish that defendant was
an inmate when deputies found a broken plastic spoon in his
cell. The state acknowledges that a jury could have found
from the evidence presented either that the spoon was a
weapon at the time that the deputies found it or that defen-
dant was in the process of making the spoon into a weapon
and had not succeeded in that effort, so that the spoon was
not yet a weapon. Consequently, the state acknowledges
that, on this record, the jury could have convicted defendant
either of the charged offense of possession of a weapon or
of the lesser-included offense of attempted possession of a
weapon. The state also concedes that the trial court erred
in declining defendant’s request for an instruction on the
latter offense. The state contends, however, that the error
was harmless. Whether the error requires reversal is the
sole issue before this court.
	       In rejecting the state’s harmless error argument,
the Court of Appeals relied on this court’s decision in State
v. Naylor, 291 Or 191, 629 P2d 1308 (1981). In that case,
the defendant was charged with first-degree burglary, and
	1
    ORS 166.275 provides, in part:
 	 “Any person committed to any institution who, while under the juris-
 diction of any institution *  * possesses or carries upon the person, or has
                                * 
 under the custody or control of the person any dangerous instrument, or any
 weapon including * * * dirk, dagger, [or] sharp instrument * * * without lawful
 authority, is guilty of a felony * * *.”
	2
    ORS 136.465 provides:
 	   “In all cases, the defendant may be found guilty of any crime the com-
 mission of which is necessarily included in that with which the defendant is
 charged in the accusatory instrument or of an attempt to commit such crime.”
714	                                          State v. Zolotoff

the trial court denied the defendant’s request for an instruc-
tion on the lesser-included offense of second-degree crimi-
nal trespass. The jury found the defendant guilty of the
charged offense, and, on appeal, the Court of Appeals held
that the trial court had erred in not instructing on the
lesser-included offense. The Court of Appeals also decided,
however, that the error was harmless because, in its view,
the verdict demonstrated that the jurors did not believe the
defendant’s exculpatory version of the event. State v. Naylor,
49 Or App 57, 61, 618 P2d 1311 (1980).
	        This court reversed. 291 Or at 199. In doing so, this
court explained, first, that Oregon law requires that the
trial court, on request, instruct the jury on relevant lesser-
included offenses. Id. at 195 (citing ORS 136.465 and State
v. Washington, 273 Or 829, 543 P2d 1058 (1975)). The trial
court should give a lesser-included offense instruction, the
court explained, “if there is a disputed issue of fact enabling
the jury to find that all the elements of the greater offense
have not been proven, but that all the elements of one or
more of the lesser offenses have been proven.” Id. at 195.
Because, in Naylor, those conditions had been met, the court
concluded that the trial court had erred by not giving the
requested instruction. Id. at 196. The court then turned
to the state’s argument that the error was harmless under
Article VII (Amended), section 3, of the Oregon Constitution.
	        On that issue, the court in Naylor reasoned that the
trial court’s failure to give the instruction “resulted in the
case being submitted to the jury without the complete state-
ment of the law necessary for the jury to properly exercise
its function in the trial of [the] defendant.” 291 Or at 197-98.
The court reversed because it was “unable to say what the
verdict would have been had the theory of the defense been
properly presented to the jury.” Id. at 198. In reaching that
conclusion, the court noted that ORS 136.465 “represents a
legislative choice that both the state and the defendant shall
have a right to have a jury, in appropriate circumstances,
consider whether the defendant is guilty of an offense less
than that with which the defendant has been charged.” Id.
	        In the Naylor court’s view, one of the apparent rea-
sons for that statutory policy was to “avoid placing the jury
Cite as 354 Or 711 (2014)	715

in the position of making an all-or-nothing choice as between
guilt and innocence where there is evidence which would
justify a verdict of guilty of a lesser offense.” Id. The jury,
the court observed, may believe a defendant to be guilty of
“some apparent violation of the criminal code but not of the
crime charged” and then be “confronted with the choice of
finding innocent a defendant it believes has been guilty of
wrongdoing or finding a defendant guilty of a crime greater
than that which the jury believes he has committed.” Id.
at 198-99. The result, the court noted, could “in one case
redound to the benefit of the defendant, and, in another, to
the benefit of the prosecution, assuming that an unjustified
conviction can ever be found to be to the benefit of the peo-
ple.” Id. at 199 (internal quotation marks omitted).
	       The state argues that the court’s reasoning in
Naylor no longer is persuasive, because the legislature has
since enacted ORS 136.460(2). That statute provides:
   	 “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 con-
   sider 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 seri-
   ous lesser included offenses.”
(Emphases added.) The state argues that, had the trial court
given the lesser-included offense instruction that defendant
requested, it also would have given an instruction in accor-
dance with ORS 136.460(2). In following that instruction,
the jury first would have considered the charged offense,
would have found defendant guilty of that offense, and, hav-
ing done so, would have ceased its deliberations. The state
asserts that this court can be assured that the jury would
have found defendant guilty of the charged offense because
its guilty verdict demonstrates that it did find, beyond a rea-
sonable doubt, that the state had established the elements
of that crime. Thus, according to the state, even if the jury
had been instructed on the elements of the lesser crime of
attempted possession of a weapon by an inmate, it would
have been required to decide the charged crime first and
would have reached the same conclusion that it actually
716	                                          State v. Zolotoff

reached in this case. Therefore, the argument goes, the trial
court’s failure to give the lesser-included offense instruction
did not prejudice defendant. Accordingly, this court must
affirm, because, unlike in Naylor, in this case the court can
“determine what judgment should have been entered in the
court below.” Or Const, Art VII (Amended), § 3; see also ORS
138.230 (court shall give judgment without regard to errors
that do not affect substantial rights of parties).
	         In making that argument, the state does not ask us
to overrule or otherwise disavow Naylor. It asks only that
we consider the result in Naylor in context and conclude that
Naylor’s reasoning no longer is applicable. The state explains
that, when this court decided Naylor, no statute required an
“acquittal first” instruction, and the Court of Appeals had
held that a trial court had committed reversible error by giv-
ing such an instruction. State v. Ogden, 35 Or App 91, 95-96,
580 P2d 1049 (1978). This court later reached the same con-
clusion, observing that an “acquittal first” instruction “exac-
erbates the risk of coerced decisions.” State v. Allen, 301 Or
35, 40, 717 P2d 1178 (1986). Thus, the state explains, in the
period before the enactment of ORS 136.460(2), the concern
that the court expressed in Naylor—confronting the jurors
with an all-or-nothing choice that could have a coercive
effect on their decision making—was an appropriate con-
sideration. However, the state argues, when the legislature
enacted ORS 136.460(2), it sanctioned the procedure that
the court had disapproved, making the reasoning in Naylor
less apt.
	        The state is correct that the legislature now
requires that jurors follow a procedure—acquittal of the
charged offense before consideration of a lesser-included
offense—that Ogden and Allen prohibited because of its
perceived coercive effect on jury deliberations. Because the
result in Naylor rested, at least in part, on a similar con-
cern, we agree that ORS 136.460(2) supplants that aspect of
the court’s reasoning. The “acquittal first” procedure under
ORS 136.460(2) mandates that jurors decide whether a
defendant is guilty of the charged offense before they con-
sider a lesser-included offense, and jurors must follow that
order of deliberation, even if it is, to some extent or in some
sense, coercive.
Cite as 354 Or 711 (2014)	717

	        We turn, therefore, to a second ground for this
court’s decision in Naylor and the extent to which ORS
136.460(2) affects that aspect of the court’s reasoning.3 In
Naylor, the court began by recognizing that, in appropriate
circumstances, a party is entitled by statute to an instruc-
tion that the jury may find a defendant guilty of certain
uncharged lesser-included offenses and a statement of the
elements of those offenses. In enacting ORS 136.460(2), the
legislature did not repeal or limit the statutory requirement
that a trial court give a lesser-included offense instruction
on request in appropriate circumstances, nor does the text
or context of ORS 136.460(2) suggest that the legislature no
longer considers such an instruction necessary if requested
and supported by the evidence. ORS 136.460(2) controls the
order of jury deliberations, but it does not preclude a trial
court from instructing the jury on the elements of relevant
lesser-included offenses before jury deliberations begin. In
fact, ORS 136.460(2) seems to assume that, when the court
instructs the jury on the order of its deliberations, it also will
instruct it on the elements of the offenses that the jury may,
sequentially, consider. The legislative mandate that the jury
consider the applicable offenses in a particular order does
not affect or eliminate the underlying legislative directive
that, on request, the jury also be instructed on the elements
of relevant lesser-included offenses.
	        The legislative history of ORS 136.460 supports
that conclusion. ORS 136.460 was part of Senate Bill (SB)
613 (1997). Or Laws 1997, ch 511, § 1. Three prosecutors
spoke in favor of the bill. One testified that the proposal
was inspired by a concern that jurors were not aware that
mistrials resulting from hung juries could be retried and
were therefore unduly pressured into compromising on
lesser-included offenses. Testimony, Senate Committee on
Crime and Corrections, SB 613, Mar 31, 1997, Tape 50,
Side A (statement of Multnomah County Deputy District
Attorney John Bradley). Another testified that the purpose
	3
      Because we conclude that the second ground for the court’s decision in
Naylor has continuing viability, we do not consider it necessary to discuss a third
ground for the court’s decision in Naylor—that, if error in instructing a jury on a
lesser-included offense is viewed as harmless, then a defendant’s right to such an
instruction “could be violated with impunity by every trial court.” 291 Or at 198.
Trial courts endeavor to follow the law, and we expect that they will do so.
718	                                          State v. Zolotoff

of the legislation was to change the “order of deliberations”
and that the proposed statute would inform juries that they
must acquit of the more serious charge before they could
move on to lesser charges. Testimony, House Committee on
Judiciary, Subcommittee on Criminal Law, SB 613, May 27,
1997, Tape 128, Side A (statement of Multnomah County
Deputy District Attorney Chuck French). The third testi-
fied that the bill would alleviate a concern that jurors might
think that they had to reach a verdict or the defendant would
be set free, and therefore jurors might be excessively willing
to compromise. Testimony, House Committee on Judiciary,
Subcommittee on Criminal Law, SB 613, May 27, 1997, Tape
128, Side A (statement of Marion County District Attorney
Dale Penn). No witness or legislator took the position that
the bill precluded jurors from learning of or thinking about
the differences in the applicable charges and weighing those
differences before they “considered” the charges in the order
required.
	        What we take from our review of the text, context,
and legislative history of ORS 136.460(2) is that that stat-
ute prescribes the order of jury deliberations but does not
preclude a trial court from informing jurors on the elements
of relevant lesser-included offenses in advance of their delib-
erations on the greater charged offense. By the same token,
ORS 136.460(2) does not preclude the jury from contemplat-
ing the law as it applies to lesser-included offenses when
deliberating about the charged offense.
	        With the enactment of ORS 136.460(2), an appellate
court appropriately may reason that, had the jury received
an instruction on a lesser-included offense, it also would have
received an instruction under ORS 136.460(2). Further, an
appellate court also may reason that the jury would have
followed that instruction and made a finding on the charged
offense before considering the lesser-included offense. See
State v. Bowen, 340 Or 487, 517, 135 P3d 272 (2006), cert
den, 549 US 1214 (2007) (court assumes jurors followed
instruction absent overwhelming probability that they were
unable to do so). As a result, there may be many instances
in which an appellate court will be able to conclude from the
evidence, the arguments, and the instructions that the jury
would have reached the same verdict on the charged offense
Cite as 354 Or 711 (2014)	719

even if it also had received instruction on the lesser-included
offense. In other words, in many instances, a trial court’s
failure to give a lesser-included instruction, although error,
may be harmless error.
	        Bowen, a case cited by the state, provides but one
example. In Bowen, the defendant was charged with both
aggravated murder and intentional murder, and the trial
court declined the defendant’s request for an instruction
that manslaughter was a lesser-included offense of aggra-
vated murder, but gave an instruction that manslaughter
was a lesser-included offense of intentional murder. The
court also instructed the jury on the elements of all three
offenses. This court held that the trial court had erred, but
that its error was harmless. The court explained that “the
case was submitted to the jury with complete and correct
statements of the law necessary for it to properly determine
whether the state had proved [the] defendant’s guilt on the
crimes charged beyond a reasonable doubt.” Id.
	        On the other hand, an error in failing to instruct
on a lesser-included offense will not always be harmless.
There may be circumstances in which the elements of the
charged crime are clearer when they are viewed in con-
trast with the elements of a lesser-included offense. So, for
instance, an instruction on the elements of a lesser-included
offense may disclose a legal distinction that is not otherwise
patent and that would be particularly helpful to the jury
in deciding whether the defendant is in fact guilty of the
charged offense. In determining whether an error in fail-
ing to instruct on a lesser-included offense is harmless, the
question for an appellate court is whether the court can con-
clude from the evidence, arguments, and instructions in the
particular case that the jury would have reached the same
conclusion had it been correctly instructed.
	        In this case, the state contends, we should reach
precisely that conclusion. The state argues that the elements
of the charged offense were easily understood and the jury
was able to determine whether the spoon was a weapon from
the instructions that it received without further instruction
on the offense of attempted possession of a weapon. Given
the particular evidence and the charges involved in this
720	                                         State v. Zolotoff

case, however, we disagree. The trial court instructed the
jury that a weapon “includes, but is not limited to, a sharp
instrument; it can be any instrument or device that can be
used offensively or defensively to gain an advantage.” Had
the trial court further instructed the jury on attempted pos-
session of a weapon, it would have informed the jury that an
attempt occurs when a defendant “intentionally engages in
conduct that constitutes a substantial step toward the com-
mission of that crime.” ORS 161.405; see also UCrJI 1040
(using substantially similar phrasing to define attempt).
That erroneously omitted instruction would have told the
jurors that there was a legal distinction between taking a
substantial step toward making the spoon into a weapon
and completing the task. In other words, the definition of
the term “weapon” told the jury what a weapon is, but it did
not tell the jury that the spoon was not a weapon if it was an
object that defendant was still in the process of making into
a weapon. In this case, an instruction on the elements of the
lesser-included offense of attempted possession of a weapon
by an inmate would have been particularly helpful because,
as the state concedes, there was evidence from which the
jury could have found that the spoon was not a weapon and
therefore that defendant did not actually possess a weapon;
he only attempted to make the spoon into a weapon and pos-
sess it.
	        The legislature has made a policy decision that
both the state and a defendant are entitled, on request and
when the evidence supports it, to an instruction on relevant
lesser-included offenses. ORS 136.465. In this case, those
conditions were met, and the trial court erred, as the state
concedes, in not giving such an instruction. On this record
and given these charges, we cannot conclude that the trial
court’s failure to give defendant’s requested instruction did
not affect the result. See State v. Davis, 336 Or 19, 35, 77
P3d 1111 (2003) (stating standard). We therefore affirm the
decision of the Court of Appeals.
	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
