State v. Cluver

BREWER, J. pro tempore

Defendant appeals from his conviction for first-degree sodomy, ORS 163.405, advancing several assignments of error.1 Because it is dispositive, we address only defendant’s assertion that the trial court erred by failing to instruct the jury on the lesser-included offense of second-degree sexual abuse, ORS 163.425.2 Because we conclude that the trial court erred in failing to give the instruction and that the error was not harmless, we reverse and remand.

Defendant was charged by indictment with, among other offenses, first-degree sodomy. ORS 163.405. The indictment…