State v. Atkins

Defendant appeals from conviction of second degree burglary. ORS 164.215. ① He contends the trial court erred in refusing to give a requested instruction to the jury on second degree criminal trespass, ORS 164.245, ② as a lesser included offense.

Cogent reasons support a belief that criminal trespass is to be considered a lesser included offense to burglary under the Oregon Criminal Code of 1971. Prior to that code, trespass was not a lesser included offense to a charge of burglary. State v. Haynes, 239 Or 132,134, 396 P2d 694 (1964). We find it unnecessary to decide the question in this case…