State v. Dilts

After a jury trial, defendant was convicted of rape in the first degree and attempted sodomy in the first degree. On appeal, defendant assigns as error the trial court’s refusal to grant his request that a jury instruction on sexual abuse in the second degree be given.

Defendant argues that, under State v. Washington, 273 Or 829, 543 P2d 1058 (1975), the instruction should have been given because sexual abuse in the second degree is a lesser included offense within the statutory definitions of rape and sodomy. Washington held that a requested instruction on an offense must be given if the…