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Blog This Post is Really Not About EED by: Ryan Scott • August 30, 2026 • no comments I wrote the following blog post not that long ago: https://libraryofdefense.ocdla.org/Blog:Main/Even_ignoring_the_constitutional_argument,_a_jury_must_unanimously_reject_an_EED_defense Since then, I've seen a number of legal memos on that topic. They've been written in the hope of convincing the trial judge that a jury must in fact be unanimous in its rejection of EED. In other words, if 11 jurors reject EED, but 1 does not, it's a hung jury, not a murder conviction. The memos I've read are thorough and reflect a deep understanding of the complex legal issues. If I were a law school professor, I would give each of them an A. They also suck. Part of the reason they suck is that they go on for pages and pages, when you need just four sentences total, two for the constitutional argument, two for the statutory. First, the constitutional argument. "The COA rejected the constitutional argument that unanimity is required to reject the EED defense in State v. Wayman. The OSC now has the issue under advisement, so we will know in a year if the argument the COA rejected -- and we are adopting -- is the right one." Now the statutory argument. "In Richards v Brown, the COA held that the 2019 version of ORS 136.450 required that 10 out of 12 jurors reject the EED argument. In 2021, that statute was amended to require 12 out of 12 jurors." Literally, that's all you need. If you want to go a little further, you could explain: ORS 136.450(2019) said this: "136.450 Number of jurors required for verdict. The verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors." ORS 136.450(2021) says this: "136.450 Number of jurors required for verdict. (1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement. (2) A jury in a criminal action may render a verdict of not guilty only by a concurrence of at least 10 of 12 jurors." The new version split the old version into two parts. Guilty has to be unanimous and not guilty by 10-2. Before 10-2 was enough either way. The question then becomes, when the court in Richards v Brown made its ruling under the old version, did they base their holding on the fact that a guilty verdict only had to be 10-2 or on the fact that a not-guilty verdict had to be 10-2? Because obviously, if they based their holding on the fact that the statute said the not-guilty verdict had to be 10-2, then the state wins the argument that 10-2 is enough to reject. If they based their ruling on the fact that the guilty verdict had to be 10-2, and it now has to be unanimous, then you win. To find the answer, we have to look at what the actual Richards opinion said. "Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense." [Bold added.] Self-evidently, the Richards court based their decision on the fact that the statute in 2019 said 10 jurors had to agree on a guilty verdict. That portion of ORS 136.450 now says 12 jurors have to agree on a guilty verdict. The issue could not be more simple. When you argue this, whether on paper or orally, if you are bringing up general verdicts and special verdicts, or what other jurisdictions have done in similar circumstances, then you don't understand what is persuasive to a judge who is juggling a million things and will be reflexively against disturbing the status quo. A demurrer for codefendants jointly charged with the gun minimum by: Ryan Scott • August 20, 2026 • no comments This is a tricky one, conceptually. Lawyers don't get it at first, until the light bulb goes off and then it seems obvious. I'm just going to cut-n-paste from a demurrer on this topic. Maybe you'll get it right away, maybe you won't, but everyone gets it eventually. It's a potentially wonderful tool. (And yes, like many demurrers, it's probably better for your client if you lose it and then win on appeal.) SUMMARY OF ARGUMENT The counts subject to this demurrer all allege two distinct and separate crimes within each count, in violation of ORS 135.630(3). Each of the relevant counts alleges it was committed by both co-defendants. That is not generally a problem. Two people can be guilty of the same crime, for example, if one is a principal and one is an accomplice. Two defendants can also both be principals. The problem, however, is that each offense carries an additional element. “The state further alleges that during the commission of this felony, the defendants used and threatened the use of a firearm.” That additional element – frequently referred to as “the firearm (or gun) minimum” – requires that the firearm is personally used by the defendant. To be sure, two defendants can both participate in a robbery and both personally threaten the victim with a firearm. But in that case, those are two separate crimes. Two people cannot “personally” use a firearm in the commission of a single offense. Consequently, each of the relevant counts alleges two separate offense, and therefore violates ORS 135.630(3). INDICTMENT Count 1 of the indictment reads as follows: ATTEMPTED MURDER IN THE SECOND DEGREE WITH A FIREARM ORS 161.405/163.115, a Class A Felony The defendants, JOHN J. SMITH AND ANTHONY JONES, on or about June 28, 2025, in Multnomah County, Oregon, did unlawfully and intentionally attémpt to cause the death of DECKARD SHAW, another human being, contrary to statutes in such cases made and provided, and against the peace and dignity of the State of Oregon. The state further alleges that during the commission of this felony, the defendants used and threatened the use of a firearm. [Bold added.] LAW and ARGUMENT ORS 135.630(3) provides that a defendant may demur to an indictment if “the accusatory instrument charges more than one offense not separately stated.” In determining whether an indictment is insufficient, the court is limited to reviewing the face of the accusatory instrument. State v. Sweet, 46 Or App 31, 34, 610 P2d 310 (1980); ORS 135.630. The court looks to the legislature’s intent to determine whether it intended the charged conduct to constitute multiple offenses that must be alleged separately. Sweet, 46 Or App at 35. In Sweet, the Court of Appeals upheld the trial court’s determination that the state improperly charged the defendant with multiple offenses within a single count. Id. There, the state charged the defendant with first-degree criminal mischief based on an allegation that the defendant had damaged multiple parcels of property during the same criminal episode. Id. at 34. The indictment did not specify whether there was one or multiple property owners involved. Id. at 35. This court explained that whether there were multiple property owners involved did not necessarily mean that there were multiple offenses within that single allegation. Id. To make that determination, this court looked to the legislative intent and determined that the legislature intended “to protect the interest of the owner or possessor in the property.” Id. That meant that there would be as many offenses as there are victims when a defendant withholds property ofmultiple victims, even if it occurs at the same time and place. Id. It followed that the indictment alleged more than one offense not separately stated because it charged a single criminal-mischief offense involving multiple parcels of property that did not specify whether there was a single victim or multiple victims. Id. at 36. In this case, the rule is violated because count 1, for examples, alleges both of the co-defendants personally used a firearm, pursuant to ORS 161.610 ORS 161.610 applies only if the defendant personally used or threatened to use a firearm, and it does not apply when the defendant merely aided and abetted in the commission of the crime. State v. Theihoff, 169 Or App 630, 633, 10 P2d 322 (2000) (citing State v. Wedge, 293 Or 598, 604, 652 P2d 773 (1982) and State v. Pies, 104 Or App 646, 650, 802 P2d 702 (1990)). Possessing a firearm with intent to use it during the crime is insufficient, the defendant must actually discharge or threaten to discharge the firearm in order to “use” or “threaten to use” the firearm for purposes of the statute. State v. Harris, 174 Or App 105, 112-113, 25 P3d 404 (2001); Pies, 104 Or App at 651. The finder of fact must explicitly determine that the defendant personally discharged or threatened to discharge the firearm for the statute to apply. Theihoff, 169 Or App at 633. To put it simply, if Person A shoots at Victim with the intent to kill Victim, then Person A has personally used a firearm in the commission of attempted murder. If Person B encourages him to do so, Person B is guilty of attempted murder, but not the gun minimum. If Persons A and B both shoot at Victim, meaning A and B have both personally used a firearm, those are two different crimes, even if they are acting in concert. Person A has committed the crime of personally using a firearm in an attempt to kill Victim, and Person B has committed the crime of personally using a firearm in an attempt to kill Victim, but each discharge by each co-defendant is a separate crime. Consequently, the state has charged two separate crimes in counts 1, 3-9, and 11. Each count alleges that Smith personally discharged or threatened to discharge a firearm, and each one alleges Jones personally discharged or threatened to discharge a firearm. Because the personal discharge of a firearm is a separate offense from someone else’s personal discharge of a firearm, each count is in clear and unambiguous violation of ORS 135.630(3). So why is it better if you lose? Because your client might win on appeal, and the conviction is not merely reversed but goes away forever. (At least when it's not a charge of murder or attempted murder). A Very Obscure Merger Issue by: Ryan Scott • August 18, 2026 • no comments Your client is charged with the same crime twice, both occurring almost simultaneously and involving the same victim. They merge, right? Normally yes, but in one crime, your client is charged as a principal. In the other, an accomplice. Does that change the analysis? (When might this occur? Two guys shoot at the victim. Both miss and both are charged with two counts of UUW, because each discharge is a separate crime. They are each charged with two, because when defendant A discharged the firearm, he was a principal for UUW. When he encouraged defendant B to discharge the firearm, he was an accomplice.) The following analysis is taken from a brief by David Ferry, although it has been modified, including some redactions. II. ORS 161.067(1) does not prevent merger because defendant violated only one statutory provision. Under ORS 161.067 (1), for a single criminal episode to constitute multiple statutory violations, the following circumstances must exist: “(1) [the] defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) [the] defendant’s acts must have violated two or more ‘statutory provisions’; and (3) each ‘statutory provision’ must require ‘proof of an element that the others do not.’” State v. Parkins, 346 Or 333, 348, 211 P3d 262 (2009) (quoting State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989)). Here, as noted above, this case involves only a single criminal episode. Moreover, each of the paired counts—Counts 2 and 3, and Counts 4 and 5—involve only a single statutory provision. The state argued below that despite the singular nature of the indictment’s charges, Counts 3 and 5 actually involved separate violations of the aid and abet statute (ORS 161.155) rather than the substantive criminal statutes. But Oregon’s appellate courts have long held that the aid and abet statute does not create a separate basis for criminal liability. State v. Cobb, 224 Or App 594, 597-98, 198 P3d 978 (2008). In Cobb, the defendant argued that, because he was convicted under an aiding and abetting theory, he was not convicted of the substantive crime of second-degree robbery, which was required for application of the mandatory minimum sentence set out in ORS 137.700. Id. In rejecting that argument, this court explained that aiding and abetting is merely a “theory of criminal liability, not a separate offense.” Id. at 598. Accordingly, although ORS 161.155 was used as a basis for holding the defendant liable for the conduct of the codefendant, “the offense for which he was convicted is second-degree robbery.” Id. Thus, ORS 161.067(1) does not prevent merger in defendant’s case. In other contexts, Oregon courts have explained that, when determining whether a defendant violated multiple statutory provisions, the crux of the issue is whether the legislature intended to create multiple crimes. State v. White, 346 Or 275, 280, 211 P3d 248 (2009). Typically, that rule is applied when a single statute provides different means of committing a crime—when the crime can be committed in different ways by satisfying different elements. Thus, for purposes of the merger statute, when a criminal statute merely provides different methods or theories of liability, there remains only one offense. Only when a statute addresses different risks and harms in separate provisions will there be separate statutory provisions for application of ORS 161.067(1). Compare State v. Johnson, 174 Or App 27, 32, 25 P3d 353 (2001), rev den, 334 Or 492 (2002) (holding that the paragraphs setting out different ways of committing first-degree robbery are separate “statutory provisions” for purposes of merger of convictions because they address different risks of harm), with State v. Kizer, 308 Or 238, 243, 779 P2d 604 (1989) (stating that paragraphs in the forgery statute constitute a single “provision”), and State v. Miller, 309 Or 362, 369, 788 P2d 974 (1990) (holding that the paragraphs in the DUII statute are alternative methods of proving one crime). Based on the law, then, the state’s novel argument below suggesting that a different theory of liability—aid and abet liability—created a different set of elements or a separate statutory provision for purposes of ORS 161.067(1) is unavailing. Next 20 Articles Case Reviews Oregon Court of Appeals, August 19th, 2026 by: Rankin Johnson CLOSING ARGUMENT - Burden-shifting STALKING AND PROTECTIVE ORDERS - Imminent threats SEX CRIMES - Forcible compulsion SEX CRIMES - Jury instructions SEX CRIMES - Forcible compulsion HUNTING AND FISHING OFFENSES - Mental states → read the full summaries... Oregon Court of Appeals, August 12th, 2026 by: Rankin Johnson SPEEDY TRIAL - Good cause SENTENCING - Restitution DEFENDANT'S STATEMENTS - Miranda warnings SEARCH AND SEIZURE - Reasonable suspicion → read the full summaries... Oregon Court of Appeals, August 5th, 2026 by: Rankin Johnson DEFENDANTS STATEMENTS - Waiver JOINDER, SEVERANCE, AND ELECTION - Issue preclusion DEFENDANT'S STATEMENTS - Voluntariness → read the full summaries... Oregon Supreme Court, July 30th, 2026 by: Rankin Johnson RIGHT TO FAIR TRIAL - Improper argument by prosecutor → read the full summaries... Oregon Court of Appeals, July 29th, 2026 by: Rankin Johnson CLOSING ARGUMENT - Improper argument by prosecutor → read the full summaries... _________________________

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