State v. Del Fox

Because the trial court correctly decided that defendant was not entitled to a jury instruction on attempted sexual abuse, I would affirm his conviction for attempted sodomy in the first degree.

The majority relies on State v. Dilts, 28 Or App 393, 559 P2d 1326 (1977), as precedent for the view that sexual abuse is a lesser included offense of sodomy. From my reading of more recent cases, however, I would conclude that the Supreme Court has tacitly overruled Dilts.1 The rule today is that, if “each statutory offense requires proof of a separate element,” there is no lesser included offense.…