State v. John

Defendant appeals his conviction of theft in the first degree, ORS 164.055(l)(c). His first assignment of error is that the trial court erred in refusing to give a lesser included offense instruction on second degree theft.

Neither the transcript nor the trial court file discloses that defendant requested an instruction on the purported lesser included offense before the jury was instructed. According to defendant’s brief, after the jury was instructed his counsel said:

"I would be excepting to the Court not giving the lesser included instruction of theft in the second degree.”

That much is in…