State v. McNair

Defendant appeals from his convictions for two counts of assault in the second degree under ORS 163.175(1)(a) (Count 1) and ORS 163.175(1)(b) (Count 2).1 In his sole assignment of error, defendant asserts that the trial court erred in failing to give the jury his requested lesser-included offense instruction on assault in the third degree under ORS 163.165(1)(a) and ORS 163.165(1)(b).2 We review for errors of law, State v. Lee, 174 Or App 119, 125, 23 P3d 999 (2001), and affirm.

We view the facts in the light most favorable to defendant to determine whether there was evidence to support the…