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Felony Computer Crime
by: Ryan Scott • April 11, 2024 • no comments
Today, the Oregon Supreme Court issued an opinion in State v. Azar. The split opinion significantly narrowed the scope of one particular theory of felony computer crime. Even if you don't have a felony computer crime case, it is worth reading -- both the majority opinion and the dissent -- on the circumstances in which legislative history can narrow the scope of an otherwise broadly written statute.
And the opinion also suggests a potential defense to theft by selling in (of course) a footnote.
- 2 Under ORS 164.095(1),“[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.”
- Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reaching that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. [Emphasis added.]
If I understand the point of this footnote, the Court is saying that selling stolen property is not necessarily "disposing of the property," and therefore not necessarily theft-by-receiving, until the property is transferred in some way. So, for example, entering into an agreement to sell stolen property, or even receiving money for said property, may not constitute theft-by-receiving until the property is delivered.
I don't anticipate many situations where this would arise, but if it does, citing that footnote at MJOA might make you look like a genius.
A Gun Minimum Sentencing Hack
by: Ryan Scott • March 31, 2024 • no comments
I had previously had a blog post where I argued that the first time a gun minimum is imposed, it must be imposed on the most serious offense to which the gun minimum was attached. Therefore, if a defendant is charged with murder with a firearm and felon in possession of a firearm, the gun minimum must be imposed on the murder (where, admittedly, it would have no effect.)
However, is there a time when you'd want the gun minimum imposed on a later count, despite the law? That is, where it's something you'd rather negotiate for. Yes.
First, if the state seeks to impose prison on one count and probation on the other, imposing the gun minimum on the non-prison count would likely increase the availability of sentence-reduction programs (AIP, transitional leave) that would not be available on a prison sentence with the gun minimum finding, even if the gun minimum is not imposed.
Second, even if the defendant is looking at prison on both counts, putting the gun minimum sentence on a non-M11 count may allow a greater reduction for earned time.
For example, assume defendant reaches a deal where he is going to be sentenced to attempted murder and felon in possession. Both allege the gun minimum, and it's the defendant's second gun minimum, so he is looking at 10 years mandatory. If the gun minimum is imposed on the attempted murder, the defendant's 120 month sentence would have 90 months subject to ballot measure 11 and therefore without earned time. The defendant could get earned time on remaining thirty months. Assuming all earned credits are in fact earned, the defendant would serve a sentence of 114 months. But if the defendant receives 90 months on the attempted murder charge and 120 months on the charge of felon in possession of a firearm to run concurrently, the defendant would get earned time on all 120 months, thereby reducing his total time to 96 months. (120-24). This is not speculation. Samson v. Brown, 486 P. 3d 59 (2021)
Special Jury Instructions for Kidnapping
by: Ryan Scott • January 12, 2024 • no comments
THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.
Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)
When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:
A Common Mistake Among Minor Felony Attorneys
by: Ryan Scott • December 10, 2023 • no comments
One longstanding argument is that the way the laws are written, a person's ODL should not be suspended because of a conviction for either unlawful use of a vehicle or possession of a stolen vehicle. The reasoning is simple. The law allows a suspension if an element of the crime includes a "motor vehicle." Neither UUV or PSV have an element that specifies "motor" vehilce, and the fact that the crime may have involved a motor vehicle doesn't make "motor vehicle" an element of the crime.
As far as I know, this issue hasn't made it to the Court of Appeals. Part of the reason for that is that certain prosecutors have conceded the issue. Part is that some defense attorneys aren't aware of the issue. Another reason, I suspect, is that even defense attorneys who are aware of the issue decide it's not worth fighting over when the defendant is going to get a two or three-year prison sentence and the license suspension is only for a year. No driving in prison, anyway.
Except that if the trial judge does impose a license suspension of one year, even if the suspension order indicates that the suspension will begin at the time of sentencing, DMV won't actually suspend the license until the defendant is freed from prison, adding to the hardship that comes with leaving prison. The more hardship, the increasing likelihood the defendant will recidivate.
If you want to help your clients stay crime-free when they get out of prison, argue against the license suspension and if you lose, send the issue up to appeal. It won't just be your client who benefits.
Unreasonable Self-Defense
by: Ryan Scott • December 10, 2023 • no comments
If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
- A person is justified in using physical force on another person to defend herself from what she reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which she reasonably believes to be necessary. The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.
But what if a person believes they are acting in self-defense but their belief is unreasonable? The state will argue the defense does not apply. But is someone who intentionally kills someone no more morally culpable than someone who kills out of an unreasonable misapprehension of the need to defend themselves? Should the law recognize a difference between the two?
Arguably, the law already does so, albeit indirectly. You might be able to get there by applying a mental state to the element of self-defense. All material elements for crimes in the criminal code have mental states barring express language from the legislature. "Not acting in self-defense" is an element (i.e., something the state must prove in order to obtain a conviction.)
For more on this argument, please e-mail me directly.
Threatening to Go And Get a Gun: Is That UUW?
by: Ryan Scott • December 5, 2023 • no comments
If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW?
Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.
- The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, "If you do not give me your money, I will get my gun and shoot you." That does not constitute a current "use" of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, "Give me your money." In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat.
State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014)
