State v. Hernandez

Court of Appeals of the State of Oregon · 2025 · Criminal Law

Criminal LawLesser-included offensesJury concurrencereckless endangermentunlawful use of a weaponfirearm enhancementlesser-included offenseindictment allegations

Facts

On Count 3, the indictment alleged that defendant unlawfully carried or possessed, with intent to use unlawfully against a police officer, a firearm, and further alleged that he personally used or threatened to use a firearm during the commission of that felony. At trial, the evidence showed two closely connected acts after an attempted traffic stop: defendant got out of his car in a shooting stance toward the officer, and moments later appeared to raise a gun at the officer while running away. Defendant requested a reckless-endangerment lesser-included instruction and also sought either a state election or a jury concurrence instruction on Count 3. The trial court denied both requests.

Issue

First, whether reckless endangerment was a lesser-included offense of the charged unlawful use of a weapon with a firearm as alleged in the indictment. Second, whether the jury had to be instructed to concur on which of the two identified acts constituted the firearm element of the Count 3 offense.

Rule

A requested lesser-included offense instruction is proper only if the offense is either necessarily included in the charged offense or the facts alleged in the indictment expressly include conduct describing all elements of the lesser offense; under the as-pleaded test, the court examines the indictment case by case. For jury concurrence, when a single violation is charged but the evidence permits the jury to find multiple, separate occurrences of that offense and the state does not elect one, the jury must concur on the occurrence; no concurrence instruction is required when the state relies on a single continuous course of conduct rather than temporally, spatially, and substantively distinct acts.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, an indictment charges Omar Vega with unlawfully carrying a firearm with intent to use it unlawfully against a security guard. The indictment also alleges that Omar personally used or threatened to use a firearm during the commission of that felony. At trial, Omar asks for an instruction on reckless endangerment as a lesser-included offense.

Should the trial court give the requested lesser-included instruction?

Explanation. Under the as-pleaded test, the court asks whether the indictment's factual allegations expressly include conduct describing every element of the proposed lesser offense. Reckless endangerment requires conduct creating a substantial risk of serious physical injury to another person. An allegation that the defendant used or threatened to use a firearm during the felony does not, by itself, necessarily allege conduct likely to expose another person to harm. So the instruction should be denied. (Derived from State v. Hernandez (n.d.).)