State v. Rafal

Defendant was convicted of criminal activity in drugs — possession of marihuana in a quantity exceeding one ounce — a felony or misdemeanor under ORS 167.207(2). It is conceded that there was evidence from which the jury could have found that defendant possessed less than one ounce of marihuana, a violation under ORS 167.207(3). At trial defendant requested that the jury be instructed on the elements of the violation of possession of less than one ounce. The trial court refused to do so, reasoning it could only instruct on lesser included crimes, not lesser included violations. We hold this…