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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).

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.

In an earlier blog post, I argued that when a defendant downloads CSAM for his own personal use and there is no evidence of an intent to distribute, he should be subject to an ECSA II sentence rather than the ECSA I sentence that results from COA's anachronistic interpretation of duplication. https://libraryofdefense.ocdla.org/Blog:Main/Framing_the_proportionality_argument_for_ECSA_I More specifically, ECSA I -- which was intended to target distributors of child porn -- can be charged when a defendant duplicates child porn, because at the time the statute was written, the only reason for duplicating a film or still photograph was to distribute it. But the COA has interpreted mere downloading as a form of duplication, and therefore downloading -- even if for strictly personal use -- satisfies the elements of ECSA I despite capturing defendants who are simply consumers of child porn.

In sum, ECSA I criminalizes a wide swath of behavior, including behavior that is not meaningfully different than behavior fully covered by ECSA II. It is therefore disproportionate under Article I, section 16, of the Oregon Constitution to punish someone as a distributor when they are exclusively a consumer.

This is an as-applied argument, not a strict virtual proportionality argument, because the facts matter. In this case, the facts would be the absence of any evidence defendant had an intent to distribute.

I believe a similar dynamic arises in the contest of DCS w/in 1000 feet of a school. A wide swath of behavior is captured by this charge, from dealing directly in front of high school or grammar school during school hours, to possessing w/ intent in a residence that happens to fall w/in 1000 feet of property owned by the school district (even when school is out of session).

Since there are circumstances where a charge of DCS w/in 1000 feet of a school is based on a mere technicality and not on any increased risk to children, the behavior is more like a straight DCS and should be sentenced accordingly.

In Richards v. Brown, 345 Or. App. 321 (2025), the Court of Appeals held that a jury could only reject an extreme emotion disturbance (EED) defense to murder if at least ten of them rejected it. Prior to that decision, if nine jurors believed the defendant was operating under EED at the time, but three didn't, the defendant was guilty of murder.

"It bears emphasis that, even though EED is only a partial defense, it is still an affirmative defense. Proving it renders a defendant not guilty of second-degree murder and guilty, instead, of first-degree manslaughter. An EED finding quite literally precludes a guilty verdict on second-degree murder. 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."

Richards, 345 Or App at ___.

Great opinion, but why does the headline of this post say it now has to be a unanimous rejection. Because the statute has changed. As the Richards court noted in fn 8:

"We recognize that, under the current version of ORS 136.450, it may be that a jury must unanimously reject the EED defense to arrive at a general guilty verdict in a second-degree murder case. ORS 136.450(1) ("(1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement.")."

Id. at ___.

By the way, even though EED is only a defense to murder 2, don't forget to argue that, under the Oregon Constitution, it justifies a lower sentence for attempted murder. https://libraryofdefense.ocdla.org/Blog:Main/Applying_EED_at_Sentencing_to_Attempted_Murder

In 1985, the Oregon legislature created a graded scheme of criminal liability aimed at ending child sexual abuse. The statutory scheme “punishes most harshly the creation of child pornography, next, its distribution, beyond that, its use to promote further abuse of children, and finally, its use in general.” State v. Porter, 241 Or App 26, 34, 249 P3d 139 (2011). Accordingly, like the previous statutes aimed at punishing dissemination of child pornography, the legislature chose the term “duplicate” to capture commercial practices associated with distribution and production. Not to capture conduct associated with possessing or viewing an image—which would be punishable as second-degree conduct.

The legislative history of ORS 163.684(l)(a)(A) makes clear that it was intended to encompass those who “disseminate” and “deal” in child pornography, not those who merely possess it without that intention.

Nevertheless, the Court of Appeals has held that downloading images (which does not necessarily implicate any intent to distribute the images) equals "duplication" under the ECSA I statute.

Consequently, when a defendant downloads images for their own personal use, they are charged under the first degree version of the statute, which was intended to address more than mere possession. In other words, the COA has erased the principal distinction between the acts that form the prohibited conduct is possession and control (that is the second-degree crime) and duplication or dissemination of more child pornography (that constitutes the first-degree offense). State v. Pugh, 255 Or App 357, 365, 297 P3d 27 (2013)

The Oregon Supreme Court has turned down the opportunity to review the COA holding.

So how does this implicate the Proportionality Clause of the Oregon Constitution?

Article I, section 16, of the Oregon Constitution provides that “all penalties shall be proportioned to the offense.” A sentence is constitutionally disproportionate when it shocks the moral sense of reasonable persons as to what is right or proper under the circumstances. State v. Wheeler, 343 Or 652, 656, 669-71, 175 P3d 438 (2007). In determining whether a sentence “shocks the moral sense,” a court considers three factors: “(1) a comparison of the severity of the penalty and the gravity of the offense; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the

defendant.” Rodriguez/Buck, 347 Or at 58. That analysis focuses on the offense to which the claimed disproportionate sentence is applied, not the totality of the defendant’s criminal conduct. State v. Carey-Martin, 293 Or App 611, 621-21, 640, 643, 430 P3d 98 (2018).

The first factor of the Rodriguez/Buck test requires a court to compare the severity of the penalty and the gravity of the offense. Ridriguez/Buck, 347 Or at 58. The severity of a penalty is the amount of time that the wrongdoer must spend in prison or jail, if convicted of that offense. Id. at 60. An “offense” is defined as the general statutory definition of the crime and, in an as-applied challenge, as the convicted person’s particular criminal conduct within the range of the conduct proscribed by the statute. Id. at 62. In comparing the severity of the penalty and the gravity of the offense, a court “may consider, among other things, the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim.”

Rodriguez/Buck informs this court’s application of the first factor in this case. Defendant Rodriquez was convicted of first-degree sexual abuse committed by pulling the back of a thirteen-year-old boy’s head

against her clothed breasts and caressing his face for about a minute. 347 Or at 48. Defendant Buck was convicted of first-degree sexual abuse committed by failing to remove the back of his hand from a 13-year-old girl’s clothed buttocks after she had leaned against him while casting a fishing line and by wiping dirt off the back of her shorts. Id. The trial court in each case determined that a 75-month prison sentence violated the proportionality clause of Article I, section 16 and imposed a lesser sentence. Id. After engaging in the three-factor analysis described above, the Supreme Court concluded that “the imposition of the mandatory 75–month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez’s and Buck’s offenses, would violate the [state] constitutional requirement that the penalty be proportioned to the offense.” Id. at 50.

In considering the first factor, the Rodriguez/Buck court noted that the first-degree sexual abuse statute, ORS 163.427(1), criminalizes a broad range of conduct, “including, but not limited to, momentary touching of an intimate part without the victim’s awareness or knowledge, touching that the victim

apprehends but does not appreciate as sexual, momentary touching over clothing, prolonged hand to genital contact, prolonged skin to skin genital contact, and, of course, forcing a person under 18 to engage in bestiality.” Id. at 69 (internal quotation marks omitted). The court remarked that the Rodriguez/Buck defendants’ conduct was on the outer edge of that conduct. Id.at 75.

Similarly, ECSA I also criminalizes a broad range of conduct. Written in the days prior to the internet, the statute was intended to criminalize the dissemination of child pornography. The consequences of such dissemination was severe.

Furthermore, the introduction of child pornography encourages and sustains a marketplace for such images, often commercializing and commodifying the criminal activity that depends on the continuing victimization of the child.

The severity of the harm is reflected in the punishment. ECSA I is a crime seriousness level 8, so that even someone with no criminal history is presumptively subject to a prison sentence. That sentence becomes exponentially longer with each additional count. However, the Court of Appeals has held that a person can be guilty of ECSA I merely by downloading (“duplicating”) an image for their own personal use, behavior which is more consistent with ECSA II, which is a crime seriousness level 5 on the Oregon Sentencing Guidelines and presumptive probation if the defendant has no criminal history..

In other words, merely downloading an image for one’s personal use does not involve the commodification and ongoing victimization that arises from the dissemination of the images, and therefore the defendant’s behavior is on the outer edge of the conduct made criminal by the statute.

Because defendant’s conduct is comparable to mere possession of the images and ECSA II, and far less severe than the originally intended scope of ECSA I, it is disproportionate to sentence defendant as a level 8 CSL as if he were a distributor of child pornography and not a level 5 CSL, which is more reflective of the nature and seriousness his conduct.