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Even a Child Can Edit This Website The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: Alex Bassos at abassos@gmail.com Recent Blog Posts 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. Next 20 Articles Appellate Review (no items) Appellate Review (no items) OR Supreme Review (no items) US Supreme Review (no items)