A judge on Thursday denied a defense motion to throw out the aggravated murder charges against Johan Gillette and began discussing what instructions to give the jury after closing arguments today.

The motion by defense attorney Mark Sabitt essentially was the same as one that was filed after the state finished calling witnesses after its main case ended last week. Lane County Circuit Judge Ilisa Rooke-Ley denied that motion as well.

The latest motion claimed the state hadn't proved primary elements of the aggravated murder charges. Had the motion been granted, Gillette still would have faced murder charges but no longer would be subject to a possible death penalty.

Following the ruling, the judge and attorneys adjourned to a conference room to discuss jury instructions. The instructions will be read to the eight-woman, four-man jury after attorneys conclude their closing arguments, which are scheduled for today. It's unknown whether jurors actually will begin deliberations later today or wait until their return to the courtroom on Tuesday.

Gillette is accused of murdering his father, James Gillette, 73, and his father's domestic partner, Anne Dhu McLucas, 71, at the home the couple shared on Needham Road south of Eugene. They died from violent blows to the head with a blunt object.

Deputy District Attorney Stephen Morgan has argued that Gillette killed them in a fit of rage when James Gillette threatened to kick his son and his girlfriend out of a trailer on his property. Gillette says he killed them in self-defense when James Gillette reached for a gun during an argument and McLucas jumped on him from behind.

Gillette is accused of three counts of aggravated murder. Under the first count, he is charged with killing James Gillette as part of the same criminal act that resulted in the killing of McLucas, and the second count charges him with killing McLucas as part of the same criminal act that resulted in the killing of James Gillette.

That's because Oregon law allows a charge of aggravated murder in cases where more than one person is killed as part of the same criminal episode. In his motion for acquittal, Sabitt argued that the deaths of James Gillette and McLucas were separate criminal episodes and his client therefore couldn't be found guilty of aggravated murder.

The third count alleges that Gillette killed McLucas to eliminate the only witness to his killing of James Gillette. One definition of aggravated murder in Oregon is a murder that is committed to conceal the commission of a crime or the identity of a person who committed a crime.

Should Gillette be convicted of more than one count of aggravated murder, it is likely that at least two of the charges would be combined into a single count for the purpose of sentencing.

Only aggravated murder carries a potential death penalty under Oregon law. If Gillette is convicted of aggravated murder, the jury would hear additional testimony before deciding whether to impose a sentence of death.

If the jury opts against death, it can impose a sentence of life in prison with no chance for parole or life with a chance for parole after 30 years. Aggravated murder is the only crime in Oregon in which a jury largely determines the sentence.

It's expected that the jury will be allowed to consider convicting Gillette of something other than aggravated murder, such as murder or manslaughter. In that case, it would be up to a judge to impose a sentence.

It's possible that the jury could find Gillette guilty of one level of crime in regard to his father and another level in regard to McLucas. The jury also could accept Gillette's claim of self-defense and find him not guilty of any crime.

Verdicts of either aggravated murder or murder require unanimous 12-0 votes. Jurors can render a verdict of manslaughter or other lesser charge on a 10-2 vote.

If jurors decide they can't convict on a charge of aggravated murder, they have to vote at least 10-2 to acquit on that charge before they can vote on the lesser charge of murder.

If they're also unable to reach the votes necessary to acquit, it's a hung jury.

Gillette also faces a misdemeanor charge of first-degree animal abuse for clubbing James Gillette's dog, Jack, which was found severely wounded in the same room as the other victims. Police suffocated the dog to put it out of its misery and still preserve the body as potential evidence.

Gillette testified that he does not remember hitting the dog.

Follow Greg Bolt on Twitter @gregbolt_RG. You can email greg.bolt@registerguard.com.

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