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Constitutionally Required Merger of Two Counts of Att Murder I

by: Ryan Scott • April 5, 2026 • no comments

Facts: Defendant has been found guilty of attempting to kill John Smith, while trying to kill John Doe in the same criminal episode (count 1) and attempting to kill John Doe while trying to kill John Smith in the same criminal episode (count 2)

Summary of Argument: The two counts must merge into a single conviction under the Federal Double Jeopardy Clause and/or the Oregon Double Jeopardy Provision. In the alternative, the counts must be sentenced to run concurrently.

Argument

A. Conviction of the defendant on the second of two inverse attempted murder counts in 24CR36206 would violate federal and state constitutional proscriptions on double jeopardy.

1. The conviction would violate the double-jeopardy proscription in the Fifth Amendment to the U.S. Constitution.

The Fifth Amendment to the U.S. Constitution guarantees that “no[] * * * person [shall be] subject for the same offence to be twice put in jeopardy of life or limb * * *.” The guaranty “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 US 711, 717, 89 S Ct 2072, 23 L Ed 2d 656 (1969) (quoted with approval in City of Lake Oswego v. $23,232.23 in Cash, 140 Or App 520, 527, 916 P2d 865 (1996)). The guaranty applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 US 784, 794, 89 S Ct 2056, 23 L Ed 2d 707 (1969)); State v. Sawatzky, 339 Or 689, 694 n 6, 125 P3d 722 (2005).

Only if a state legislature “specifically authorizes cumulative punishment under two statutes” may a state punish the same conduct twice without violating the Fifth Amendment. Missouri v Hunter, 459 US 359, 368–69, 103 S Ct 673, 74 L Ed 2d 535 (1983). Without that specific authorization, whether charges are for the “same offense” depends on the elements of each charge. If all the elements of one are included in the elements of the other, the charges are for the “same offense.” State v. Dodge, 373 Or 156, 173 n 4, 563 P3d 339 (2025) (citing Blockburger v. United States, 284 US 299, 304, 52 S Ct 180, 76 L Ed 306 (1932)). Under the state’s approach, whenever a defendant is convicted of attempted murder under ORS 163.107(1)(d)—which requires that there be “more than one murder victim”—the defendant can always be convicted (and sentenced) twice, unlike a defendant convicted of attempted murder under any other subparagraph of ORS 163.107(1).

That’s because every instance of attempted murder under ORS 163.107(1)(d) can be charged, as here, in the inverse, by switching the names of the two victims. For that double punishment to comply with federal double-jeopardy proscription, it must not just be authorized; it must be specifically authorized. For authorization to be specific, it must authorize the specific double punishment of a defendant convicted under ORS 163.107(1)(d), at least by referring to a conviction under that statute. No such specific authorization appears in Oregon law. Indeed, whether the analogous former offense of attempted aggravated murder under ORS 163.095(1)(d) existed at all had to be settled by the Oregon Supreme Court’s 2022 decision in State v. Kyger, 369 Or 363, 506 P3d 376 (2022).

Here, the two attempted-murder charges are the inverse of each other; count 1 charges the attempted murder of Smith while attempting to murder Jones, and count 2 differs only in that the names are switched. Because both counts arose under the same statute (ORS 161.107(1)(d)) and the same two individuals are named in each, it follows that both counts had the same elements and that all the elements of one were included in the elements of the other. The state relied on the same evidence (the gunshots) to prove both offenses; none of the evidence proved only one of those offenses. Notably, the completed offense of murder in the first degree under ORS 163.107(1)(d) does not suffer from the same constitutional infirmity. That is because the elements of two counts of the completed offense can never be identical. To prove the completed offense, the state need only show that the defendant intended to kill one person (A) and that another person (B) died during the same criminal episode; the state need not show that the defendant intended to kill B. If the state charges the inverse offense, it must to show that the defendant intended to kill B, but it need not show that the defendant intended to kill A. Here, by contrast, the defendant is charged with attempting and thus intending to kill both victims in both counts, so neither count has an element the other lacks. Conviction for both attempted-murder counts would violate the federal constitutional double-jeopardy proscription.

2. The conviction would violate double-jeopardy proscription in Article I, section 12, of the Oregon Constitution.

Under Article I, section 12, of the Oregon Constitution, “no person shall be put in jeopardy twice for the same offence * * *.” Under that provision, charges are for the same offense if they “(1) arise out of the same act or transaction, (2) can be brought in the same court, and (3) the prosecutor knows or reasonably should know about them at the time of the original prosecution.” Dodge, 373 Or at 173 n 4, 563 P3d 339 (2025) (citing State v. Brown, 262 Or 442, 458, 497 P2d 1191 (1972)). Article I, section 44(1)(b), addressing “crimes against different victims,” limits only laws affecting sentencing; it does not limit the section 12 constitutional proscription against prosecution and conviction.

Here, the two attempted-murder offenses arose out of the same act (the shooting) and could have been (and were) brought in the same court, and because the prosecutor brought both counts in the same indictment, the prosecutor necessarily knew of both offenses when the state initiated the prosecution of both of them.

Conviction for both attempted-murder counts would also violate the state constitutional double-jeopardy proscription.

B. Consecutive sentencing on the second attempted-murder count would violate the proscription in Article I, section 16, of the Oregon Constitution on disproportionate punishments.

Under Article I, section 16, of the Oregon Constitution, “[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense * * *.” A punishment is unconstitutional if it is “so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Sustar v. County Court of Marion County, 101 Or 657, 201 P 445 (1921) (citing Weems v. United States, 217 US 349, 367, 30 S Ct 544, 54 L Ed 793 (1920)); see also State v. Gonzalez, 373 Or 248, 254, 564 P3d 109 (2025) (citing Sustar). “The primary authority to determine the gravity of an offense and the appropriate punishment lies with the legislature.” Gonzalez, 373 Or at 255.

The legislature has prescribed a uniform maximum penalty for every form of attempted first-degree murder, including under ORS 163.107(1)(d) by attempting to murder one person while also attempting to murder another. For that reason, an evaluation of the proportionality of double convictions and consecutive sentences for violating ORS 163.107(1)(d) once does not challenge a legislative policy judgment.

Three factors bear on whether a punishment is constitutionally disproportionate: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez, 347 Or 46, 58, 217 P3d 659 (2009). Here, defendant challenges the proportionality of his and any other defendant’s conviction and consecutive sentence for committing one of several types of attempted first-degree murder by comparison to every other type of first-degree murder. So of the three Rodriguez factors, the only relevant one is the second: “a comparison of the penalties imposed for other, related crimes.”

It would shock the moral sense of all reasonable people to learn that for violating ORS 163.107(1)(d) once, a defendant would receive two convictions and concurrent sentences, but a defendant violating any other part of ORS 163.107(1) would receive but one conviction and sentence. Because the two attempted-murder counts have identical elements and are based on evidence of the same behavior, a conviction or consecutive sentence on the second attempted-murder count would violate Article I, section 16.

C. Under ORS 137.123(4) and (5), the sentence for the second attempted-murder count should be concurrent with the sentence for the first. Under ORS 137.123(4) and (5), sentences for multiple offenses “shall be concurrent” (1) if the offenses “aris[e] out of a continuous and uninterrupted course of conduct” and (2) the court does not find either— “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.”

Because ORS 137.123(5)(a) applies only when the second offense “was not merely an incidental violation of a separate statutory provision,” it does not apply when the sentences arise from offenses under the same statutory provision. And because counts 1 and 2 both arise under ORS 163.107, ORS 137.123(5)(a) does not authorize consecutive sentences.

Neither does ORS 137.123(5)(b) authorize consecutive sentences. The basis for conviction on counts 1 and 2 was evidence of seven gunshots in quick succession, so those offenses arose out of a continuous and uninterrupted course of conduct. And because there was no evidence that any of the gunshots was aimed specifically at either Smith or Jones, as opposed to the house where they were present, there was no evidence that any of the gunshots was an attempt to kill only one of them; the state relied on the same seven gunshots to support both charges. Thus, there is no evidentiary basis for the court to make a finding that defendant’s attempt to kill Washington caused or created a risk of causing greater or qualitatively different loss, injury or harm to Jones than was caused by the attempt to kill Smith, or that defendant caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the attempt to kill Smith.

The state will claim that consecutive sentences are authorized because each count addresses harm to a different victim. That might be true for the completed offense of murder. But it is not true here for the offense of attempted murder. Each count alleges that Clay personally attempted to kill two people. Both victims are victims of each count, and neither count has a victim the other does not. Thus, under ORS 137.123(5), the court lacks discretion to impose a sentence for count 2 consecutive to the sentence for count 1.

Applying EED at Sentencing to Attempted Murder

by: Ryan Scott • April 3, 2026 • no comments

I. Extreme Emotional Disturbance

It is a partial affirmative defense to murder in the second degree if the defendant was under the influence of extreme emotional disturbance (“EED”). ORS 163.115(1)(a). EED “constitutes a mitigating circumstance reducing the homicide that would otherwise be murder to manslaughter. . . .” ORS 163.118(1)(a). Although EED is an affirmative defense, it requires ten jurors to reject the defense. Richards v. Brown, 345 Or App 321 (2025)

The difference between a murder in the second degree conviction and manslaughter in the first degree is stark. The former mandates a measure 11 sentence of life in prison, with the possibility of parole only after twenty-five years, and potentially later if any additional sentences are run consecutively. In contrast, manslaughter in the first degree is a ten year sentence.

The logic behind the defense of EED is self-evident. A defendant who commits an intentional homicide under the influence of EED is simply less culpable than one who does not. There literally can be no other purpose for the enormous reduction in sentence.

II. Proportionality, Measure 11 and Personal Characteristics that Make a Defendant Less Morally Culpable

Article I, section 16, of the Oregon Constitution provides that “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” When a sentence is so excessively long compared to the defendant’s conduct that it violates Article, I, section 16, the appellate courts will reverse it. See Rodriguez/Buck, 347 Or at 58 (“[I]t is the role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years. And, when we conclude that, because of its length, a sentence is inconsistent with Article I, section 16, as we have on at least three occasions, we should hold that sentence unconstitutional.”).

In Rodriguez/Buck, the Supreme Court identified three factors to consider when determining whether a sentence is unconstitutionally disproportionate: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” Id.

When assessing the “offense” at issue, the court considers:

“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.”

Id. at 62.

More recently, in State v. Gonzalez, 373 Or 248, 266, __ P3d __ (2025), the Supreme Court limited a trial court’s reliance on mental illness when determining the proportionality of a sentence. But more relevant to this case was the fact that the court explained how courts should identify, based on societal standards, those personal characteristics that merit a less serious punishment.

As we have explained, Ryan did not simply rely on this court's own perception of a societal consensus that intellectual disability can, in some general sense, reduce a person's culpability. Rather, in applying the instruction from our case law to determine whether a sentence would "shock the moral sense of reasonable people," this court relied on "objective evidence of a societal standard" that supplied a basis to determine more precisely when an intellectually disabled offender's culpability is different from that of other offenders. Ryan, 361 Or at 624. As discussed, in Ryan, that objective evidence was the legislature's enactment of ORS 161.290, which provides that a person is not criminally responsible for any conduct that occurred when the person was under 12 years of age. Id.

Id. at 265-266.

Last month, the Court of Appeals applied the Supreme Court’s opinion in Gonzalez in order to remand a case to the circuit court with instructions to apply the defendant’s mental health issues – greater than those in Gonzalez – in deciding whether to impose the Measure 11 sentence.

We agree with defendant that, in light of the Supreme Court's opinion in Gonzalez II, the trial court's understanding of Gonzalez I that only intellectual disability could be considered, was not correct. The Supreme Court was clear that other mental health attributes can be considered, if there is "evidence of a societal standard recognizing that people who suffer from [the particular mental disorders]—but who have the ability to form the requisite mental state and appreciate the gravity of their conduct—have reduced moral culpability for their criminal conduct." Gonzalez II, 373 Ore. at 268. As a strategic matter, defendant here chose not to pursue a defense of GEI. ORS 131.300. In finding defendant guilty, the jury necessarily found that defendant had the ability to form the requisite mental state. Thus, the question for us is whether, despite that finding, the record includes objective evidence of a societal standard that recognizes, for purposes of sentencing, that people who suffer from the particular mental health attributes suffered by defendant have reduced moral culpability for their criminal conduct. See State v. Lancaster, 345 Or App 155, 158, 581 P3d 989 (2025) (applying standard).

State v. Clark, 347 Or App 721 (2026).

III. Applying Article I, section 16, and Clark to This Case

Gonzalez and Clark both require a “societal standard” before a personal characteristic can be a basis for sentencing relief, i.e., taking a defendant out of Measure 11. That standard is met here. The fact that the legislature has recognized EED as a partial defense that dramatically reduces a defendant’s sentence – as presumably states have done similarly across the country – is itself evidence of a societal standard.

Because of the legislature's primary role in determining the punishments for criminal conduct, it is appropriate that, in determining whether a societal standard exists that militates against imposing a punishment that would otherwise be required, courts will give great weight to the existence or absence of legislative enactments bearing on such a standard.

State v. Gonzalez, 373 Or 248, 266, 564 P3d 109 (2025). [Bold added.]

See also State v. Ott, 297 Or 375, 686 P2d 1001 (1984)(history of EED as a mitigating factor.)

Merger of UUW with (Attempted) Murder

by: Ryan Scott • January 28, 2026 • no comments

In a footnote in today's Bock opinion, the COA wrote:

4 UUW is not generally a lesser included offense of attempted aggravated murder, because it requires proof of the use of a “dangerous or deadly weapon,” which is not an element of attempted aggravated murder. However, in cases such as this one in which the counts of attempted aggravated murder included that defendant used a firearm as an additional material element, UUW may be a lesser included offense as it was here. See ORS 161.610(2) (use or threatened use of a firearm may be pleaded in the accusatory instrument and proved at trial as an element of aggravation).

Not only then is the most common theory of UUW a lesser-included of Attempted Murder w/ a firearm (assuming same victim), the two counts would merge in the same way a lesser-included offense mergers with a greater offense.

The same applies to murder w/ a firearm and UUW. Note that it does not apply to every theory of UUW.

For whatever reason, a lot of attorneys who handle murder cases miss this easy and slam-dunk argument. I assume on some level, it's because if a defendant is convicted of murder and UUW after trial, even the most ignorant judge will run the two counts concurrently. The additional conviction for UUW wouldn't increase the sentence or the PPS.

But on a more basic level, I believe fewer convictions is better than more convictions. And if it takes a 30-second argument to get one fewer convictions, just do it. Even if there will be absolutely no chance of any collateral impact once the defendant gets out of prison, who knows what DOC policies -- either now or in the future -- would be impacted by the number of convictions. And getting into the habit of thinking about merger and how it applies will help the attorney recognize the issue in cases where fewer convictions really will make a clear and substantive difference.

Another objection to UCrJI 1006

by: Ryan Scott • January 8, 2026 • no comments

In the preceding post, I argued why the standard jury instruction UCrJI 1006 violates the rules against commenting on the evidence and vouching, because it tells the jury that the witnesses have taken an oath to tell the truth, thereby drawing the jury's attention to a reason to believe those witnesses..

But that's not the only problem with UCrJI 1006.

The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states:

The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as: (1) The manner in which the witness testifies. (2) The nature or quality of the witness’s testimony. (3) Evidence that contradicts the testimony of the witness. (4) Evidence concerning the bias, motives, or interest of the witness. [(5) Evidence concerning the character of the witness for truthfulness.] “[(6) Evidence that the witness has been convicted of a previous crime.].”

(6) is also an impermissible comment on the evidence because it highlights a fact that the jury is supposed to consider for a particular purpose. Now this one gets more complicated strategically. Obviously, you only want to object when your client's conviction comes into evidence. But there are other considerations, including whether to ask for a limiting instruction that limits what purposes the jury can consider the prior conviction for.

Objection to UCJI 1006

by: Ryan Scott • January 3, 2026 • no comments

The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states:

The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as:

(1) The manner in which the witness testifies.

(2) The nature or quality of the witness’s testimony.

(3) Evidence that contradicts the testimony of the witness.

(4) Evidence concerning the bias, motives, or interest of the witness.

[(5) Evidence concerning the character of the witness for truthfulness.]

“[(6) Evidence that the witness has been convicted of a previous crime.].” [Bold added.]

In State v. Kessler, 254 Or 124, 458 P2d 432 (1969, the Oregon Supreme Court considered a challenge to the following instruction:

“* * * Now every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest or motive, by contradictory evidence or by a presumption.” (Emphasis added).

The Kessler court affirmed on the grounds that the instruction had provided ways in which the presumption could be overcome:

“The bare instruction in criminal cases that a witness is presumed to tell the truth has been criticized. However, where the instruction includes, as it did in the present case, an explanation of how the presumption can be overcome it is not considered prejudicial or as rendering nugatory the presumption of innocence. Although it might be preferable not to instruct the jury in criminal cases where defendant does not take the stand that a witness is presumed to speak the truth, we find no error in giving the instruction if accompanied by an explanation of how the presumption can be overcome. * * * [W]e do not think that the instruction which defendant now attacks deprived him of the benefits of [the presumption of innocence], as we have already said, the explanation of how the presumption of credibility could be overcome would inform the jury that the presumption was not tantamount to a declaration of defendant’s guilt.”

(Footnotes omitted). Accord State v. Dowell, 16 Or App 38, 39-40, 516 P2d 1305 (1973) (citing Kessler).

Defendant cites Kessler because the state is likely to raise it in defense of the standard instruction. But not only does Kessler not specifically address the basis of the objection discussed below, but also Kessler has been impliedly overruled by multiple Oregon Supreme Court cases. Since 1969, the Supreme Court has repeatedly articulated and adhered to the rule that the court may not instruct the jury to draw an inference against the defendant that effectively shifts the burden of proof. State v. Hayward, 327 Or 397, 410, 963 P2d 667 (1998)(“It is well established that a trial court is not permitted to comment on the evidence.”); State v. Rainey, 298 Or 459, 467, 693 P2d 635 (1985) (holding that the court should not instruct the jury on “inferences” to be used against the accused because to do so “conflicts with the beyond-a-reasonable-doubt standard”).

Second, whatever Kessler had to say regarding the instruction’s effect on the presumption of innocence (the question at issue in Kessler), a court may not comment on the evidence by telling the jury “how specific evidence relate[s] to a particular legal issue.” State v. Brown, 310 Or 347, 373, 800 P2d 259 (1990) (trial court did not err in failing to prove the defendant’s requested instruction, because it would constitute an improper comment on the evidence); State v. Wiltse, 373 Or 1, 12, 559 P3d 380 (2024) (construing ORCP 59 E to foreclose such comments); see also State v. Nefstad, 309 Or 523, 552, 789 P2d 1326 (1990) (trial court did not err by declining to give a defendant’s requested instruction that “consciousness of guilt” “does not constitute affirmative proof as to how the crime was committed or defendant’s participation therein.”). In other words, a court may not – when directing the jury to evaluate a witness’s testimony – tell the jury to consider that the witness took an oath to tell the truth. the court is impermissibly noting to the jury a fact in evidence (the witness has sworn an oath to tell the truth) in a jury instruction on how the jury should weigh credibility.

Third, the instruction violates the independent rule against vouching. State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019) (explaining that language that assumes the truth of an allegation constitutes a form of vouching that undermines the presumption of innocence); see also State v. Perez, 373 Or 591, 619, 568 P3d 940 (2025) (Bushong, J., concurring) (noting that prosecutors should “never suggest or insinuate” that the state, the police, or other witnesses believe witnesses and should instead confine themselves to the “standard” jury instruction on evaluating witness testimony). Because Kessler did not address vouching, this court is not bound by the Kessler holding.

Noting that the witnesses – especially when the state has the majority or only witnesses – have sworn an oath to testify truthfully is unquestionably vouching. In fact, it is not at all clear what other purpose for that statement would be.

Special thanks to appellate attorney extraordinaire Stacy Du Clos for coming up with this argument.

Solving the Gordian Knot of Attempted Murder EED

by: Ryan Scott • December 23, 2025 • no comments

A jury finding of extreme emotion disturbance can reduce a murder charge to a manslaughter conviction. And it recently got harder for the state to defeat. Richards v Brown, 345 Or App 321 (2025).

It's a substantial reduction, from a life-25 sentence to 10 years.

But a perennial complaint of defense lawyers is that EED -- though understood as a partial defense to murder -- is not a defense in any way to attempted murder. Seems unfair, but that's the law. Is there anything a defense lawyer can do?

Yes. Article I, section 16. There are legal and societal reasons why EED is a substantial mitigating factor. Consequently, EED almost certainly meets Gonzalez standard for application of Article I, section 16. State v. Gonzalez, 373 Or 248 (2025). A successful proportionality argument would still result in prison, but a non-Measure 11 sentence. State v. Fudge, 333 Or App 149 (2024).

I have developed a strong interest in expanding the scope of Article I, section 16. For those keeping score at home, here are other times I think you should consider pushing the envelope:

(1) When the defendant is highly mentally ill but not quite enough to meet a GEI standard.

(2) When the defendant has significant medical needs. (Compassionate release only applies to non-M11 sentences in Oregon.)

(3) When a lengthy sentence will only be served after the defendant is found rehabilitated by the parole board.

(4) When a defendant is convicted of sex abuse II based solely on the victim being 16 or 17, when there is a statute that makes the exact same crime a misdemeanor.

Why "First Time-Second Time" Elections Are Insufficient

by: Ryan Scott • December 19, 2025 • no comments

Assume defendant is charged with twenty crimes over the same five year period in the exact same location. Assume also that the crime happened on a weekly basis. Assume also that you cannot tell from the discovery or indictment the specific incidents that are the basis for crimes 1-20.

Because you keep up on the law, you file a demurrer/motion to require election. The state responds by electing in part as follow. Count 2 is the first time a specific crime occurred. Count 3 is the second time that same crime occurred. Is that enough to save the state? Here's an argument taken from an appellate brief why it is not.

Counts 2-3 alleged the “first time” and the “second time”, respectively that rape was alleged to have occurred. They are also representative of the way the state had “elected” with regard to the other counts. Was that sufficient?

The answer is no, for the obvious reason that “first time” or “second time” provide no factual detail that would be necessary to preparing a defense. The following hypothetical illustrates that point. Assume a “residential abuser” case that a complainant was able to provide more specificity than the usual detail in her forensic interview. She alleges that the first time the abuse occurred was right after the spring final exams of her sophomore year. But at trial, she testifies that the first time the abuse occurred was when she wanted to go to her sophomore homecoming. If the state were to elect one or the other, that would be the kind of specific detail that a defendant would have an opportunity to adequately defend against. But if the state’s only election pre-trial is “first time abuse occurred,” it still would not specify the allegation (final exams or homecoming) he has to defend against. “First time” provides no factual specifics that would allow a defendant to defend himself. In this case, because neither “first time” nor “second time” provided the necessary factual specificity, the election was inadequate and if the demurrer was not granted, the motion to elect should have been.

The Inherent Flaw in the State's Antoine Demurrer Argument

by: Ryan Scott • October 10, 2025 • no comments

On September 10, 2025, the Court of Appeals issued State v. Bravo-Chavez, 343 Or App 326 (2025). The issue in that case was whether the trial court abused its discretion in requiring the state to elect the specific acts upon which it would rely when notice was inadequate.

Although the standard of review was an abuse of discretion, the court appeared to hold that a remedy was required.

Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears :that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).

Bravo-Chavez, 343 Or App at 339. [Bold added.]

I have long thought of the issue as one of constitutional magnitude. Specifically, "A criminal defendant is entitled “to be informed of the nature and cause of the accusation[.]” US Const, Amend VI. See also Or Const, Art I, § 11 (providing that a criminal defendant has the right to “demand the nature and cause of the accusation against him”)

But it is also statutory. ORS 132.550(7) (providing that an indictment must include “[a] statement of the acts constituting the offense in ordinary and concise language * * * in such manner as to enable a person of common understanding to know what is intended”).

Moreover, the vehicle to address a statutory violation is a demurrer.

ORS 135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

The constitutional remedy is the same: a demurrer arguing that the indictment is not definite and certain.

A "definite and certain" demurrer is the odd man out in the world of demurrers. It appears that in addition to filing the demurrer, the defendant must put in all the discovery when filing the demurrer (or the equivalent) to show that the discovery itself does not provide the missing definiteness and certainty to the allegations. But once the defendant has demonstrated that the discovery does not cure the defect, the four corners of the indictment represent the scope of what the court can consider when deciding the demurrer.

And then, State v Antoine says that an alternative remedy is to make the prosecutor elect pre-trial, which would theoretically cure the lack of definiteness/certainty. However, not all elections are sufficient, and the minimal election in Bravo-Chavez did not accomplish that, and most of the charges were dismissed.

The State of Oregon has taken the position that a pre-trial election is not a proper remedy, up to and including the state's petition for review at the Supreme Court. And frankly I think they're spitting into the wind on that issue. But let's assume they are correct.

The state wants to argue that it should not be forced to elect when it cannot reasonably do so. And it wants to argue the courts should not grant the demurrer if the state cannot reasonably elect.

But here's the problem. The court should not be allowed to consider that argument/excuse when deciding the demurrer. The facts of the case are only considered to the extent they do or do not make the allegations definite and certain. The constellation of facts that purportedly show that the state cannot meet its statutory or constitutional requirements cannot be considered when evaluating a demurrer.

They could in theory be properly considered when evaluating the merits of a pre-trial election, but the state insists that a pre-trial election is not a permissible vehicle for addressing the problem.

So, in sum, I recommend a demurrer first, and an election in the alternative. Make clear the demurrer is under both the statute and the state and federal constitutions. And lastly, point out to the trial judge that the state's complaints of being unable to make the allegations more definite and certain -- to the extent it relies on facts outside the indictment -- is not a proper consideration when deciding the demurrer.

Putting Together a Severance Argument in Light of the New Factors

by: Ryan Scott • September 27, 2025 • no comments

The Oregon Supreme Court's opinion in State v. Hernandez-Esteban is both a substantive and subtle analysis of many of the factors that play a role in severing charges for separate trials. I've listed a few considerations when you are drafting your own severance motion:

(1) Even if joinder of the charges are proper, why they are joined matters and is worth litigating. This is because the bar for "substantial prejudice" is lower if the only basis for joinder is "same or similar charges" than it is for "same or similar charges" and "common scheme or plan." Hernandez-Esteban, 374 Or at 319-320("[J]oinder for “same or similar character” purposes may often begin further up the scale, closer at the outset to the threshold of “substantial prejudice” that may require “separate trials of counts or * * * other relief justice requires.”")

(2) At least implicitly, the opinion suggests that joinder of sex abuse I (in this case, an unwanted kiss on the lips) is not always a "same or similar charge" as nightly touching of the buttocks and vagina over a four year period. Hernandez-Esteban, 374 Or at 324("To reiterate, the nature of the charged conduct, while possibly sufficiently similar in the nature of the crimes charged to permit joinder, was nonetheless substantially different.")

See also State v. Garrett, 300 Or App 671, 455 P3d 979 (2019). When, in response, the state relies on cases like State v. Buyes, 280 Or App 564, 382 P3d 562 (2016), really scrutinize whether all aspects of Buyes (particularly the temporal component) are still good law in light of Garrett.

(3) "Accordingly, the requirement for a showing of case specific substantial prejudice is not meant to prohibit any consideration of general concerns; rather, it signifies that those general concerns, standing alone, will be insufficient to show substantial prejudice that could affect the fairness of the trial. In other words, consideration of those general concerns should occur within the grounding framework of the specific facts of the case and the evidence at hand." Hernandez-Esteban, 374 Or at 317.

(4) A big argument in favor of substantial prejudice arising from joinder were the differences in the quality of the charges. "That is so, defendant argues, because the nature of the alleged conduct against M was not inherently sexual; the surrounding circumstances did not establish that the conduct was sexual; M was a less cogent witness whose pretrial statements were equivocal and confusing; and defendant had multiple viable defenses to M’s allegations that were not available with respect to A’s allegations." Id. at 31.

Note that "viable defenses" in this case include the fact that a defense against M's allegations would be that she misconstrued the conduct at issue (a kiss) as sexual, when no such argument would have had any merit with regard to A's allegations (touching of the vagina while she slept).

"As a result, there was a substantial risk that the jury would use the counts involving A to supply proof of sexual purpose as to the counts involving M, thereby interfering with defendant’s efforts to defend against the charges involving M. In other words, defendant offered a case-specific argument that M’s allegations were weaker from both an evidentiary perspective and as to the nature of the charged criminal activity. Defendant’s arguments were thus neither abstract nor generalized but grounded in the perceived risk that the jury in this case might impermissibly use the evidence of defendant’s abuse of A to supply the mental state required on the charges against M."

Id. at 322.

(5) The opinion more or less assumes without deciding that the conduct against both girls were part of a common scheme or plan, and then finds, even then, there was substantial prejudice. But to be clear, these crimes were not part of a common scheme or plan because there was no a substantial overlap of evidence. Any old case law that says otherwise has been implicitly overruled by subsequent opinions.

Joinder of offenses “under ORS 132.560(1)(b)(C) is appropriate if "the joined counts [or charges] are logically related, and there is a large area of overlapping proof" between them. State v. Dewhitt, 276 Or App 373, 383, 368 P.3d 27 (2016), quoting State v. Johnson, 199 Or App 305, 111 P3d 784 (2005).

(6) The opinion specifically says you don't necessarily need an expert to make the observations made by the expert in this case.

This is an area ripe for delicious disagreement, since the opinion covers so much ground, but if I could distill Hernandez-Esteban to a single point, it would be this:

When we say that one set of charges is weaker than the other set of charges, what we mean is that there is something missing from one set of charges that makes the state's case harder to prove.  When, because of joinder,  the jury might use the other case to fill in whatever is missing, that is substantial prejudice. 

What's missing could be the nature of the conduct.  It could be the identification of the defendant.  It could be the credibility of the complainant.    If the other case shores up that weakness, you have substantial prejudice resulting from joinder.

That's it for now. More thoughts later.

The Rule of Completeness Isn't What You Think It Is

by: Ryan Scott • September 21, 2025 • no comments

OEC 106 provides:

"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject, where otherwise admissible, may at that time be inquired into by the other; when a letter is

read, the answer may at that time be given; and when a detached act, declaration, conversation or writing is given in evidence, any other act, declaration, conversation or writing which is necessary to make it

understood may at that time also be given in evidence."

Case law has made it plain that OEC 106 is not an independent basis for admission. It is generally concerned with timing. So if the state seeks to offer a portion of record -- say, a medical record -- then the defendant can offer the rest of it immediately, rather than in the defendant's case-in-chief, assuming the evidence code would allow the defendant to do so.

What this means in practice is that the state will offer a portion of defendant's statement, because it is a non-hearsay statement of a party opponent, but the defendant will not be able to offer the rest of it because the defendant has no independent basis for admitting the statement.

So as Brett Allin recently wrote in a petition for review, this rule would allow the state to offer the bolded part of the following statement, but not allow the defendant to offer the rest:

“They’re saying I shot the sheriff! I didn’t shoot the sheriff!”

That is a brilliant hypothetical because it makes the importance of the issue immediately and viscerally understandable.

This week, the Oregon Supreme Court granted Brett's petition for review. The case is State v. Hagenno. The case is set for oral argument March 18, 2026, at 9:00 a.m., at Willamette University College of Law, Salem, Oregon.

Brett's argument is not that OEC 106 is a separate basis for admission. Rather, the rest of the statement is necessary for a non-hearsay purpose: context. It is necessary to understand the portion of the statement the state has offered.

I like this argument. It's a simpler and more straightforward argument than the one I have long proposed in this type of situation, which was this: offering part of the statement misleads the jury, so unless the state offers the whole statement, it should be excluded under OEC 403.

This issue comes up a lot so be ready to preserve this argument when it does.

The Statutory Basis for an Antoine Demurrer is Better (for now) than the Constitution

by: Ryan Scott • September 18, 2025 • no comments

In thinking about Antoine demurrers, I've tended to focus on the right to adequate notice under the state and federal constitutions. A criminal defendant is entitled “to be informed of the nature and cause of the accusation[.]” US Const, Amend VI. See also Or Const, Art I, § 11 (providing that a criminal defendant has the right to “demand the nature and cause of the accusation against him”)

But last week's Bravo-Chavez decision has reoriented my approach to the issue, and in doing so, I believe my argument is going to be stronger.

Let's start with ORS 132.550(7) (providing that an indictment must include “[a] statement of the acts constituting the offense in ordinary and concise language * * * in such manner as to enable a person of common understanding to know what is intended”).

As it so happens, a violation of ORS 132.550(7) can be a basis for a demurrer. ORS 135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

See also everyone's favorite: State v. Poston, 277 Or App 137 (2016)

It is the statutory basis for a demurrer that prompted the Bravo-Chavez court to write the following:

"We understand the state’s concern about the difficulty of making a pretrial election in “resident child abuser” case. “Other jurisdictions have dealt with the ‘undifferentiated evidence’ dilemma in child sexual abuse cases by treating a single alleged crime as a continuing or aggregated offense, or by enacting ‘continuing child sexual abuse’ statutes.” State v. Ashkins, 357 Or 642, 657 n 11, 357 P3d 490 (2015).7 To the extent there is a problem of providing notice sufficient to prepare a defense in such cases, the solution likely lies with the legislature, not the courts."

That would seem to imply that the court believes the defendant is entitled to some form of relief even when the nature of the accusations make it impossible for the state to meaningfully elect. See also:

Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).

By proposing a legislative fix, the court does seem to suggest that the statutory requirements for notice are stricter than the constitutional ones.

Moreover, focusing on the statute -- and the fact defendant is entitled to a demurrer when the statute is violated -- might answer another question as well. In State v. Poston, the court agreed the denial of the demurrer was error, but it found it partially harmless and only granted relief on some of the counts. (Mr. Poston would subsequently achieve relief on the rest of the charges because of Ramos v. Louisiana.) But what the court did not do is require Mr. Poston to prove prejudice before finding the denial of the demurrer to be error.

Consequently, when you file a combination demurrer/motion to elect, and the state argues that even if the notice is statutorily inadequate, the defendant has not shown he is prejudiced, then you simply say "a defendant has no burden to demonstrate prejudice when the statutory remedy is a demurrer."

Now, the same may or may not be true for an election, so be sure to both demur and move for election.

A New Old Other Bad Acts Special Jury Instruction

by: Ryan Scott • September 16, 2025 • no comments

There are a number of cases -- particularly child sex cases -- that include "other bad acts." The other bad acts are not necessarily offered to prove the defendant committed the act at issue (touching the breast, for example) but to prove that he did so with a sexual purpose. In other words, the other bad acts are not relevant to the actus reus, only the mens rea.

In that situation, the defendant is entitled to certain jury instructions, the goal of which is to limit the jury's consideration of those other bad acts to the purpose for which they are offered.

Consequently, in a case, for example, where the defendant is, say, a gym teacher charged with sexual contact with a minor (A), and the state wants to offer allegations that defendant touched a different minor (B) at a different school, the defendant might be entitled to the following instructions:

(1) You may only consider the allegations involving B when deciding whether [defendant] had a sexual purpose when touching A.

(2) This means you must first decide if [defendant] touched A's breast. You may not consider allegations involving B when you make that determination.

(3) If you find that there was contact with A's breast, you must decide if it was done for a sexual purpose. Only then -- and only for that purpose -- are you allowed to decide if the allegations involving B are true.

(4) If you find the allegations against B are true, then and only then should you consider them when deciding if the contact with A was done with a sexual purpose.

First, let me give full credit to Kyle Krohn for walking me through this analysis. I simply misread the case law until he patiently explained it to me. Hopefully, these instructions accurately reflect and capture his analysis.

Second, you will notice that I have essentially turned one instruction into four. That is done on purpose. I always do it that way. If the trial court doesn't give the instructions at all, and the COA thinks I'm mostly right but quibbles with some of the language in one sentence (which could be fatal to the appeal if presented as just one instruction), the case may still be reversed if not giving the 3 remaining instructions was error.

Third, the case law supporting this are Leistiko and Pitt.

Fourth, don't feel bad if you don't get this instruction. Child sex cases are hard to win under the best of circumstances, and this will give you a good shot at appeal.

Fifth, a smart prosecutor may not agree, but they won't object to those instructions out of fear of giving you an issue for appeal.

Sixth, these instructions could have broad application, but they will have to be modified for your specific case and the exact reason the other bad acts are coming into evidence. Not all "other bad acts" go to mental state. Those instructions will get tricky.

The State's Likely Response to Bravo-Chavez

by: Ryan Scott • September 12, 2025 • no comments

The Court of Appeals released State v. Bravo-Chavez, 343 Or App 326 (2025) this week, re-affirming their approach to pre-trial election previously set out in the Antoine cases, as well as State v. Payne.

This was a big deal, because the AG's office had maintained the position that there was no such thing as "pre-trial" election, and if it did exist, it was entirely discretionary with the trial court. A number of trial court judges seemed to think the same. And I suspect that will continue to be the AG's position when they petition for review to the Supreme Court.

But for now, the Court of Appeals has made it clear that a defendant has "a right" to pre-trial notice, and that that right encompasses the right to have the state elect, when there is doubt about the exact nature of the charges.

The state argues that in “resident child abuser” cases, in which the victim typically testifies in a generic and undifferentiated way to repeated acts of abuse over a sub-stantial period of time, then “no reason exists to require” the state to make an election before the close of the state’s case-in-chief, and the state may not be able to make an intelligent election until after the victim testifies. But that argument ignores a defendant’s constitutional and statutory right to notice of the charges. The purpose of a motion for pretrial election is to ensure that defendants have notice “ ‘of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.’ ” Payne, 298 Or App at 421 (quoting Antoine I, 269 Or App at 79).

Bravo-Chavez, 343 Or App at 339.

The other key takeaway from Bravo-Chavez is that it may not be enough for prosecutors to elect by way of saying "first time" or "last time." It was not good enough in this case, but that may have had more to do with the fact that the trial judge did not think it was good enough, and such a finding was within the scope of her discretion. See fn 8.

I suspect the state will misread that last point. A defendant has a right to pre-trial election when there is a need for it. That's not within the discretion of the trial court. Whether the state's election, once made, is sufficient may be something the appellate courts will defer to the trial judge on. Or maybe not. We don't yet know.

In other words, in addition to the state arguing to the Supreme Court that Bravo-Chavez is wrong, the state is likely to insist that whether to require election is still discretionary with the judge. The state will argue that the trial judge exercised her discretion and it was upheld, but a judge could just as easily exercise their discretion the other way. That is not supported by the opinion. Adequate notice of what they have been charged with is a defendant's statutory and constitutional right. And because it is a right, a defendant only needs to show that they cannot tell the bases for the charges. A defendant does not have to show ahead of time how and why he is prejudiced by the denial of that right. Yes, there is still a harmless error analysis, but no affirmative duty to prove prejudice when a defendant has a right to the information.

The state may also argue that failing to demur to the indictment (that is, an Antoine demurrer) means the defendant has waived the right to an election. As the court noted, that was not raised in this case, but the state has made that argument in a case under advisement. See fn 6.

I would note that there are a handful of "election" cases that have already been briefed and argued at the COA, and it is very likely any ambiguity still left after Bravo-Chavez will be answered very quickly.

Finally, I want to express my admiration to those of you who were intelligent and aggressive enough to make these election arguments in the face of scoffing and dismissal from prosecutors and judges. Your clients were well-served.

How Should I Start Jury Selection? The Court of Appeals Just Told Me.

by: Henry Oostrom-Shah • August 17, 2025 • no comments

How should I start jury selection? The Court of Appeals just told me—and maybe you, too. Yes, you heard that right. As a new guy who graduated law school in 2023, I’ve often struggled with breaking the ice during jury selection—and doing so in a way that advances my trial theory.

Thankfully, the Court of Appeals (O’Connor, J.) just released an opinion that tells trial lawyers how to pick a jury. Specifically, the opinion in State v. Pugh suggests how we can set up voir dire to ensure the trial judge strikes unfriendly jurors. 341 Or. App. 435, 439–40 (2025). And, if the trial judge denies our for-cause challenges, how we can get the appellate court to reverse a guilty verdict.

Pugh reminds us to sprint to bias as soon as we stand up in front of the panel.

→ continue reading...

Primer on Preserving As Applied Challenges to Gun Laws

by: Henry Oostrom-Shah • July 30, 2025 • no comments

The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms.

More follows below, including helpful federal and state cases to support your arguments.

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