https://libraryofdefense.ocdla.org/Blog:MainOCDLA Library of Defense - Blog:Main [en]2024-01-15T15:51:37ZMediaWikihttps://libraryofdefense.ocdla.org/Blog:Main/Special_Jury_Instructions_for_KidnappingSpecial Jury Instructions for KidnappingRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2024-01-12T22:31:39Z2024-01-15T15:51:37Z<p><b>THIS POST HAS BEEN AMENDED.</b> 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.
</p><p>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.)
</p><p>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:
</p><p><b>THIS POST HAS BEEN AMENDED.</b> 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.
</p><p>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.)
</p><p>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:
</p>
<dl><dd>(1) You should consider and decide if the defendant committed [assault/robbery] before you consider the kidnapping charge.
</dd></dl>
<dl><dd>(2) If you conclude the defendant is guilty of [assault/robbery], you should find the defendant not guilty of kidnapping if you find the movement of XXXXXX was merely incidental to the commission of the [robbery/assault].
</dd></dl>
<dl><dd>(3) The movement was merely incidental to the [assault/robbery] if it did not go beyond what was necessary to accomplish the [assault/robbery].
</dd></dl>
<dl><dd>(4) A person has only taken someone from one place to another if the ending place is qualitatively different from the [their] starting place.
</dd></dl>
<p>I provided the following authority for those instructions.
</p>
<dl><dd>Although the requested instructions are submitted at one time and are best understood collectively, the court should understand that there is a separate request made for each of the number instructions above. For special instructions #1-3, Defendant relies on <i>State v. Worth</i>, 274 Or App 1 (2015).
</dd></dl>
<dl><dd>Special instruction #4 is based on the fact that a person commits the charged form of second-degree kidnapping only if the person “takes another person from one place to another.” ORS 163.225(1)(a). That requires the other person’s “ending place [to be] qualitatively different from the [their] starting place.” <i>State v. Sierra,</i> 349 Or 506, 513, 254 P3d 149 (2010).
</dd></dl>
<p>At that conference, I proposed a large number of legal arguments and special jury instructions and the overwhelming majority are now law. But not the special jury instructions for kidnapping. Either they weren't preserved, they wouldn't have made a difference, or the defendants were acquitted.
</p><p>Until this month, sort of. The Court of Appeals published a case that dealt with -- and rejected -- a special jury instruction for kidnapping. <b>AMENDMENT: The trial attorneys did ask for special jury instruction (4). (The facts and charges didn't support 1-3.) And in fact the trial court gave (4), so therefore it wasn't an issue on appeal. What was an issue was an additional jury instruction on the same asportation element. End Amendment.</b>
</p><p>The case is <i>State v. Anderson</i>, 329 Or App 754 (2023). It was an en banc decision in which the majority rejected defendant's assignments of error, including the denial of his MJOA and the failure to give the requested instructions. The dissent would have ruled differently on the denial of the MJOA for kidnapping, but it did touch briefly on the issue of the jury instructions.
</p><p>The case is essential reading for anyone with a kidnapping charge. And the odds seem pretty good for Supreme Court review, so it may not be the final word. But I want to focus on the requested jury instructions.
</p><p>The defendant's requested jury instruction stated:
</p>
<dl><dd>"For purposes of Kidnapping in the Second Degree, Oregon law provides that a person has the intent to interfere substantially with another person's liberty if the person acts with the intent to move the other person a substantial distance or to confine the other person for a substantial period of time."
</dd></dl>
<p>The majority opinion rejecting the instruction stated:
</p>
<dl><dd>Defendant's requested instruction correctly states the law with respect to the intent element of second-degree kidnapping. We understand the trial court's reference to the requested special instruction as "somewhat misleading" as a reference to the fact that the word "distance" does not appear in the second-degree kidnapping statute and that, although defendant must have intended to move J a substantial distance, his success in doing so is not required and his failure in doing so would not be dispositive. What is required is that defendant "intended to interfere substantially with [J]'s personal liberty, including her freedom of movement[.]" <i>State v. Worth</i>, 274 Or App 1, 11-12, 360 P3d 536 (2015), <i>rev den</i>, 359 Or 667 (2016) (internal citations, quotations marks, and brackets omitted). Given that the trial court's instructions correctly stated the law on both elements of second-degree kidnapping and given the very real potential for misleading the jury to think that a particular distance is required for either the physical act or mental state elements, the court did not err in declining to give defendant's special instruction.
</dd></dl>
<p>The dissent wrote:
</p>
<dl><dd>I agree with the majority that defendant's requested instruction correctly states the law on the intent element of second-degree kidnapping. See 329 Or App at 763. I disagree that the trial court did not have to give that instruction. See id. at 764. The jury was instructed that, to prove kidnapping, the state had to prove that defendant "had the intent to interfere substantially with [J's] personal liberty." Defendant requested a legally accurate instruction on the well-established meaning of "substantial" as used in that phrase. In response, the prosecutor argued that the requested instruction misstated the law—which it did not— and the trial court declined to give it, stating, "I don't believe that that is an accurate statement of the law, or at least I think it's somewhat misleading * * *." Then, during closing argument, the prosecutor argued that defense counsel had misstated the law in referring to "substantial distance" in closing, and he told the jury that "personal liberty" means a person's "freedom of movement," which in turn simply means the "ability to move or not move." Defendant again requested the additional instruction, and the court again said no. Finally, during jury deliberations, the jury asked for a "better definition of `personal liberty'"—having heard none except the prosecutor's—and the court again rebuffed defendant's request, instead telling the jury only that "the term `personal liberty' refers to [J's] right to freedom of movement."
</dd></dl>
<dl><dd>The Supreme Court has acknowledged the inherent "ambiguity" in the phrase "intent to interfere substantially with another's personal liberty'" in the kidnapping statute—and how that ambiguity has been resolved through case law:
</dd></dl>
<dl><dd><dl><dd>"The decision in Garcia[, 288 Or at 413] removes some of the ambiguity from the phrase `intent to interfere substantially with another's personal liberty.' It confirms that the liberty interest that the statute protects from interference is the interest in freedom of movement and concludes that, in order for the interference to be substantial, a defendant must intend either to move the victim a `substantial distance' or to confine the victim for a `substantial period of time.'"
</dd></dl>
</dd><dd>Wolleat, 338 Or at 475 (emphasis added). In short, it is the "substantial" distance that the defendant intends to move the victim, or the "substantial" period of time that he intends to confine the victim, that makes the intended inference "substantial."
</dd></dl>
<dl><dd>The legal meaning of "intent to interfere substantially with another's personal liberty'" was particularly important to the defense theory in this case; the prosecutor made misleading statements in closing argument regarding the intent requirement for kidnapping; and the jury was clearly unsure as to what the state needed to prove. The requested instruction accurately stated Oregon law and would have ensured that the jury understood its task. It was not confusing or misleading. Under the circumstances, the requested instruction should have been given. The court erred each time that it refused to do so, and that error likely affected the verdict. The instructional error is another reason that I would reverse defendant's kidnapping conviction (although a reversal on that basis would only entitle defendant to a new trial).
</dd></dl>
<p>Despite its loss at the COA, I would ask for the special instruction requested in Anderson and in the alternative the special instruction I drafted in 2017. You won't win on the first unless and until the Supreme Court reverses, and you might not win on the second. But if they would make a difference in your case, your chance of reversal is pretty good, and there is no downside to making the request.
</p>https://libraryofdefense.ocdla.org/Blog:Main/A_Common_Mistake_Among_Minor_Felony_AttorneysA Common Mistake Among Minor Felony AttorneysRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-12-10T21:43:41Z2023-12-10T21:45:17Z<p>One longstanding argument is that the way the laws are written, a person's ODL should <b>not</b> 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 <i>involved</i> a motor vehicle doesn't make "motor vehicle" an element of the crime.
</p><p>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.
</p><p>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.
</p><p>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.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Unreasonable_Self-DefenseUnreasonable Self-DefenseRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-12-10T21:33:25Z2023-12-10T21:33:25Z<p>If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
</p>
<dl><dd>A person is justified in using physical force on another person to defend herself from what she <i>reasonably believes</i> 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.
</dd></dl>
<p>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?
</p><p>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.)
</p><p>For more on this argument, please e-mail me directly.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Threatening_to_Go_And_Get_a_Gun:_Is_That_UUW%3FThreatening to Go And Get a Gun: Is That UUW?Ryan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-12-06T01:50:45Z2023-12-06T01:50:45Z<p>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?
</p><p>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.
</p>
<dl><dd>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.
</dd></dl>
<p><i>State v. Ziska,</i> 355 Or 799, 808, 334 P3d 964 (2014)
</p>https://libraryofdefense.ocdla.org/Blog:Main/Pointing_a_Firearm_is_Not_Use_of_Deadly_ForcePointing a Firearm is Not Use of Deadly ForceRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-12-05T06:37:31Z2023-12-05T06:37:31Z<p>More than once, I've had cases where the defendant was charged with unlawful use of a weapon for pointing a firearm at a trespasser. The prosecutor initially believed that even if the defendant reasonably believed he was acting in defense of his property, his actions were unlawful because you cannot use deadly force to protect property.
</p><p>You may already see the problem. Threatening the use of deadly force is not the actual use of deadly force. Consequently, the limitation on defense of property -- you can't use deadly force -- does not apply when the deadly force is merely threatened.
</p><p>Don't take my word for it.
</p><p>Pointing a firearm at someone does not constitute the use of deadly force. <i>State v. Burns</i>, 15 Or App 552, 562, 516 P2d 748 (1973)(With respect to self defense, and limitations on the use of self defense, "the threat of deadly force does not constitute the use of deadly physical force."); <i>State v. Taylor</i>, 182 Or App. 243, 48 P3d 182 (2002)
</p><p>Consequently, when a defendant has merely pointed a firearm, and is claiming self-defense, it is error to instruct the jury on the “limitations of use of deadly force.” <i>Taylor</i>, 182 Or App at 248 (“We further conclude, under <i>Burns</i>, that the trial court erred in giving the instruction because there was no evidence that defendant actually used deadly physical force.”
</p><p>In <i>Taylor</i>, a firearm was pointed but not discharged. The defendant claimed self-defense. The jury was instructed on the limitations of deadly force. As in <i>Taylor</i>, giving the instruction was error.
</p><p>The <i>Taylor</i> court also found the error was not harmless. It agreed with defendant’s argument, which it quoted as follows:
</p>
<dl><dd>"By giving an instruction about the use of deadly physical force, the trial court suggested to the jury that it could find defendant had used such force, when, legally, it could not. This could have confused the jury and prejudiced defendant. If the jury improperly found that defendant had used deadly physical force, it would have assessed the legality of his actions in light of the limitations on the use of such force. It would have subjected defendant's actions to a more stringent test to determine whether they were legally justified."
</dd></dl>
<p><i>Taylor</i>, 182 Or App At 248.
</p><p>Anyway, I mention this, because this particular error may not be common, but they do happen, and I'm guessing I'm not the only defense attorney who's had a client in that situation.
</p>https://libraryofdefense.ocdla.org/Blog:Main/It_usually_takes_awhile_before_issues_of_first_impression_start_winning._This_is_the_exception.It usually takes awhile before issues of first impression start winning. This is the exception.Ryan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-11-15T18:15:11Z2023-11-15T18:15:11Z<p>Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing.
</p><p>But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case.
</p><p>Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing.
</p><p>But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case.
</p><p>ORS 136.583(7) allows a party to offer business records without the live testimony of the custodian if certain conditions are met. The primary requirement is that the custodian provides either an affidavit or a declaration with language that satisfies the business record exception (OEC 803(6)) to the hearsay rule.
</p><p>The statute also provides a definition of a declaration:
</p><p>(c) “Declaration” means a declaration under penalty of perjury under ORCP 1 E or an unsworn declaration under ORS 194.800 to 194.835, if the declarant is physically outside the boundaries of the United States. ORS 136.583(11)(c).
</p><p>In turn, ORCP 1E states in relevant part:
</p><p>Use of declaration under penalty of perjury in lieu of affidavit.
</p><p>E(1) Definition. As used in these rules, “declaration” means a declaration under penalty of perjury. A declaration may be used in lieu of any affidavit required or allowed by these rules. A declaration may be made without notice to adverse parties.
</p><p>E(2) Declaration made within the United States. A declaration made within the United States must be signed by the declarant and must include the following sentence in prominent letters immediately above the signature of the declarant: “I hereby declare that the above statement is true to the best of my knowledge and belief, and <b>that I understand it is made for use as evidence in court</b> and is subject to penalty for perjury. [Bold added.]
</p><p>As far as I can tell, that bolded language "I understand it is made for use as evidence in court" is a uniquely Oregon requirement. Thus, when Google or Facebook or T-Mobile attached their standard declaration -- which was written to comply with the federal rule of evidence and probably every state other than Oregon -- it often doesn't have that bolded language.
</p><p>The first time I objected to a declaration on this basis, it won. And to my knowledge, if the declaration is missing that language, no judge has failed to sustain an objection. But it is something that can often be remedied. Prosecutors started getting new declarations -- which might be a problem if the new declaration wasn't written by the person who compiled the information in the first place -- or have started getting the original declaration with the Oregon-required language.
</p><p>But where this is a live issue is in cases that have gotten old, for whatever reason. T-Mobile, Google and Facebook don't keep their records forever (unless the state has sent them a preservation letter, which itself might be unconstitutional.) It may not be possible for the state to comply with the hearsay exception when the records no longer exist and the only evidence they did exist is a legally flawed declaration.
</p><p>The state may eventually get the evidence in, but an objection that takes you five minutes to draft may require the state to spend hours fixing, and if the prospect of which doesn't get you a better deal, it might get you an issue for appeal.
</p>https://libraryofdefense.ocdla.org/Blog:Main/A_Ballistics_Test_is_a_SearchA Ballistics Test is a SearchRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-11-11T00:05:52Z2023-11-11T00:06:26Z<p>Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows:
</p><p>Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows:
</p><p><b>I. A Ballistics Test is a Search</b>
</p><p>Testing the firearm – including ballistics testing, which reveals characteristics of that firearm that are not plainly visible -- is a search under Article I, section 9, of the Oregon Constitution and the 4th Amendment of the United States Constitution (made applicable to state prosecutions through the due process clause.)
</p><p>Testing that reveals something about an item, other than confirmation of what that item is, is a search.
</p><p>In <i>State v. Binner</i>, 131 Or. App. 677, 886 P2d 1056 (1994), the defendant consented to a search of his blood to determine its alcohol content. That test indicated that his blood alcohol content was below the legal limit. Two weeks later, the police had his sample tested for THC content. The Court of Appeals held that the search of the defendant’s blood for a chemical other than the chemical for which he consented to a search exceeded the scope of his consent, and therefore violated the defendant’s privacy interest under Article I, section 9. Id. at 683.
</p><p><i>Binner</i> is important for two reasons. First, it holds that testing is a search, since it reveals something about the evidence being tested that is not apparent to the naked eye.
</p><p>Secondly, <i>Binner</i> holds that the otherwise lawful seizure of evidence – as the blood was lawfully seized – does not equal the right to search that evidence.
</p><p>In <i>Walter v. United States</i>, 447 US 649, 65 L Ed 2d 410, 100 S Ct 2395 (1980), hundreds of boxes of 8 mm film were mistakenly delivered to a business. Employees there opened the packages. The exterior of the individual film containers had “suggestive drawings” and “explicit descriptions of the contents” indicating that “they contained obscene pictures.” 447 US at 651-52. The employees contacted the FBI, and an agent picked up the packages. FBI agents subsequently viewed the videotapes using a projector, without first applying for a warrant. Id. at 652. The court noted that the FBI agents “lawfully acquired possession” of the films. Walter, 447 US at 649. Although the boxes evidently announced their contents, the court concluded that viewing the films without first obtaining a warrant violated the Fourth Amendment. Id. at 659.
</p>
<dl><dd>Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.
</dd></dl>
<dl><dd>It is perfectly obvious that the agents’ reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation—that is to say, a search of the contents of the films—was necessary in order to obtain the evidence which was to be used at trial.
</dd></dl>
<dl><dd>The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field’s opinion for the Court in Ex parte Jackson, 96 US 727, [24 L Ed 877 (1877),] established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.”
</dd></dl>
<p><i>Walter,</i> 447 US at 653-54.
</p><p>Again, <i>Walter</i> holds that lawful possession does not give the state authority to test or inspect the seized item under the 4th Amendment to the United States Constitution, made applicable to the states via the Due Process Clause of the 14th Amendment. .
</p><p>Under Article 1, section 9, when ordinary property that can be lawfully owned or possessed is seized lawfully by the police, but without a warrant, the “state may ‘observe, feel, smell, shake and weigh’ the property ‘or otherwise 'thoroughly examine' its exterior without obtaining a warrant,’ but the state's ability to examine the interior of the property without invading a protected privacy interest ‘depends on whether the contents are open to view or the property by [its] very nature announce[s] [its] contents (such as by touch or smell)'." <i>State v. Sine</i>s, 287 Or. App. 850, 864 (2017) (citing Newcomb 359 Or at 765 quoting Owens, 302 Or 196, 206 (1986)). A good example of this is a transparent container versus an opaque container - if the police possess a transparent container lawfully, but do not have a warrant to search it, they may still open the container without conducting a search, “because they already know exactly what they will find,” on the other hand, “Article 1, section 9 protects the contents of an opaque container because the contents are secret, that is, not presently discernible.” <i>State v. Sines,</i> 287 Or App at 874-75.
</p><p>In <i>Sines</i>, the defendant’s housekeeper began to suspect he was having sex with his nine-year old daughter, and wanting to do something about it, she took a pair of the girl’s underwear from the house and gave it to Deschutes County Sheriff’s Office. Sines, 287 Or App at 854. The police had the underwear tested at the Oregon State Police Crime Lab, where they tested the underwear for both semen and spermatozoa, which involved extracting the contents of the underwear with liquid and then looking at the liquid extraction under a microscope. <i>Id.,</i> at 859-60. The court ruled that such testing was an impermissible as “[c]utting pieces from underwear, chemically testing some of the pieces, extracting the contents of one piece into liquid, and examining the liquid under a microscope would certainly be "searches" under ordinary circumstances,” and the police’s lawful possession of the underwear did not “automatically extinguish the owner’s privacy interest in the item.” <i>Sines</i>, 287 Or App at 876. The court rejected the state’s argument that the testing in Sines was effectively the same as a field test on contraband, saying that if “the testing will reveal information other than whether or not the substance is contraband, it does invade a protected privacy interest because the police do not know exactly what they will find—the information is still secret.” <i>Id.</i>, at 880.
</p><p><i>Sines</i> is exactly on point. In this case, a firearm was seized at the same time that defendant was arrested. It was never fired by defendant or anyone else during the incident for which defendant was arrested. The subsequent testing and test firing was a search because it revealed characteristics of the firearm that were not visible to the naked eye, just like the THC in Mr. Binner’s blood (which had been lawfully seized by the police), or the videdotapes in <i>Walters</i> and the underwear in <i>Sines.</i> The police did not know exactly what they would find; they were not merely testing an item to confirm whether or not it was the contraband that they already suspected that it was. Thus, for the reasons given in <i>Walters</i> and <i>Sines</i>, the lawful, warrantless seizure of the firearm did not destroy defendant’s privacy interest in the firearm and therefore the search of that firearm required a search warrant.
</p><p>Since no search warrant was obtained, the results from the testing of the firearm should be suppressed. Furthermore, any and all search warrant affidavits that relied on those results should have the results stricken from the affidavits and the search warrants looked at anew.
</p>https://libraryofdefense.ocdla.org/Blog:Main/The_Portland_City_Code_and_Unlawful_Possession_of_a_FirearmThe Portland City Code and Unlawful Possession of a FirearmRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-11-06T00:50:48Z2023-11-06T00:51:06Z<p>Since the <i>Bruen</i> opinion from the United States Supreme Court, there have been 2nd Amendment challenges to felon in possession of a firearm (both facial and as-applied), felon in possession of body armor, unlawful possession of a concealed weapon and many more. Each of these has a chance of being successful and some in fact have been successful in certain federal courts. Nothing of course is guaranteed. However, there is one argument where I believe the odds are overwhelmingly in our favor. And that's a challenge to the Portland City Code's prohibition on carrying a loaded weapon.
</p><p>The key thing to know about the Portland City Code is that it prohibits open carry, as well as concealed carry. Why does that matter? See this quote from <i>Bruen.</i>
</p>
<dl><dd>In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U S, 30 at 626, 128 S Ct 2783, 171 L Ed. 2d 637. Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry.
</dd></dl>
<dl><dd>In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619-621 (1840). It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850). Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 9 (1822). The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited “wearing” or “carrying” pistols “as arms of offence or defence,” without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited “carrying certain weapons secretly,” the court explained, it was “valid.” Nunn, 1 Ga., at 251. But to the extent the Act also prohibited “bearing arms openly,” the court went on, it was “in conflict with the Constitutio[n] and void.” Ibid.; see also Heller, 554 U. S., at 612, 128 S. Ct. 2783, 171 L. Ed. 2d 637. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.
</dd></dl>
<dl><dd>Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would “violat[e] the constitutional right to keep arms.” Andrews v. State, 50 Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (discussing Andrews). <b>All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues. </b>
</dd></dl>
<p>
<i>N.Y. State Rifle & Pistol Ass'n v. Bruen</i>, 142 S Ct 2111, 2146-2147, 213 L Ed 2d 387, 35 427-429 (2022) [Emphasis added.]
</p><p><i>Bruen</i> put the burden on the state to prove the existence of a historical analog to any modern-day firearm prohibition. The good news for the state is that there are plenty of examples of antebellum statutes regarding the open carry of firearms. The bad news for the state is that they were all found unconstitutional.
</p><p>I highly encourage defense lawyers to raise this argument. More than any other firearm prohibition, this one is likely to be found unconstitutional.
</p>https://libraryofdefense.ocdla.org/Blog:Main/The_Mens_Rea_for_Felony_Murder_of_a_ChildThe Mens Rea for Felony Murder of a ChildRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-11-04T18:25:11Z2023-11-05T18:07:28Z<p>This is going to be a very short post on a very complicated issue. Really more of an update.
</p><p>Assume a horrible accusation. The defendant is accused of assaulting a child, and the child dies as a result. To be guilty of "felony murder" in this situation, as opposed to a straight murder, the defendant does not need to intend <i>the death</i> of the child. But does the defendant have to at least know they are causing serious physical injury? Or is negligence enough, i.e., they fail to be aware of a substantial risk of causing serious physical injury?
</p><p>Post-<i>Owen/Shiffer</i> cases, the state will argue that the answer is "negligence." But <i>Owen</i> and <i>Shiffer</i> involved the Assault II and criminal mistreatment statutes where the legislative intent was unknown. Consequently, <i>Owen</i> and <i>Shiffer</i> are good cases for determining what attorneys and courts should do when the legislative intent is unknown -- at least in the context of assault -- but they tell us nothing about what to do when the legislative intent is clear.
</p><p>And they don't need to. If the legislative intent is clear, then we go with what the legislature intended. Pretty fundamental principle.
</p><p>In this case, the legislative intent is remarkably unambiguous. I have it if you need it. Prosecutor after prosecutor testified that for the crime of felony murder of a child resulting from assault, the defendant must know or intend to cause serious physical injury.
</p><p>Last month in Multnomah County, a judge agreed with the defense that the defendant must know or intend serious physical injury in order to be guilty of felony murder under this particular theory. It came up in the context of a bail hearing. It appears the State of Oregon will be filing a petition for a writ of mandamus on this issue, which means it will go straight to the Oregon Supreme Court. Such writs go on a much faster timeline than direct appeals, so if the state does follow through, we should have an answer within months.
</p>https://libraryofdefense.ocdla.org/Blog:Main/The_Scope_of_OEC_803(18)(a)(b)The Scope of OEC 803(18)(a)(b)Ryan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-11-04T17:59:23Z2023-11-04T18:08:22Z<p>An increasingly common situation is arising in child sex cases that are reversed by the appellate or in PCR. The state seeks to offer the prior trial testimony of the complaining witness under a hearsay exception of OEC 803(18)(a)(b).
</p><p>There are a couple of arguments worth making in response. The first is the purpose of OEC 803(a)(b) is so that the jury can evaluate the nature of the "disclosure." This is what <i>State v. Hobbs</i>, 218 Or App 298, 305, 179 P3d 682 (2008) stated. The statute is written quite broadly, but the scope of a statute can be narrowed by legislative intent. (<i>State v. Gaines</i>.) If legislative intent is simply to help the jury understand how and under what circumstances the disclosure was made, the next question becomes, "what is a disclosure?" Is it any discussion of the alleged crimes? Or is it when the child reveals something new and different? And is trial testimony -- at which point the child has told multiple people, from family, to CARES NW, to the police, to the DA, to the Grand Jury -- really a disclosure? If not, then the prior testimony shouldn't be admitted.
</p><p>If the hearsay exception allows it, then there is a question whether it is admissible under OEC 403. The argument here is that the cumulative nature of the testimony is inherently prejudicial because people are more likely to believe false things when they are repeated.
</p><p>The mechanism for how repetition impacts credibility was explained in How Liars Create the Illusion of Truth by Tom Stafford.
</p>
<dl><dd>“Repeat a lie often enough and it becomes the truth”, is a law of propaganda often attributed to the Nazi Joseph Goebbels. Among psychologists something like this known as the "illusion of truth" effect. Here's how a typical experiment on the effect works: participants rate how true trivia items are, things like "A prune is a dried plum". Sometimes these items are true (like that one), but sometimes participants see a parallel version which isn't true (something like "A date is a dried plum"). After a break – of minutes or even weeks – the participants do the procedure again, but this time some :of the items they rate are new, and some they saw before in the first phase. T<b>he key finding is that people tend to rate items they've seen before as more likely to be true, regardless of whether they are true or not, and seemingly for the sole reason that they are more familiar.</b>
</dd></dl>
<p><i>Id.</i> [Bold added.]
</p><p>If the judge overrules the objection to the admission of the trial testimony, how much of the prior testimony should come in? The state will usually argue it all is admissible, and it will cite <i>Hobbs,</i> 218 Or App 298, 305, 179 P3d 682 (2008) as
authority. But <i>Hobbs</i> does not go nearly as far as the state will likely claim. At issue in <i>Hobbs</i> was the victim's diary. The Hobbs court described it as follows:
</p>
<dl><dd>[T]he entire document is about the events leading up to the abuse, the abuse itself, and the victim's feelings during and after that time. The journal paints the picture of a developing sexual relationship between defendant and the victim, beginning with his questions about kissing and culminating in the charged acts of abuse, and includes an account of the victim's emotional reaction to the changing relationship.
</dd></dl>
<p><i>Hobbs,</i> 218 Or at 307.
</p><p>The appellate court noted that the type of disclosure at issue was within the scope of what the legislature intended. However, the Court also noted the full scope of the hearsay exception is unknown. The Court noted that "the outer limits of a statement 'concerning an act of abuse' may not be clear. . ." <i>Id.</i> at 305. The Court specifically said it did not need to decide those limits in that case. <i>Id.</i> It found the portions of the diary fell within the scope of the exception "regardless of any textual ambiguities regarding the scope of a statement 'concerning an act of abuse. . . .'" <i>Id.</i> at 306.
</p><p>I suspect large portions of the original trial testimony will blow past the reasonable limits of the hearsay exception. I recommend making a specific objection to individual statements in the testimony (again, assuming it is not kept out as a whole.)
</p><p>And you may want to apply those limits to the CARES NW, Liberty House or Children's Center interviews. As the COA state, we don't yet know the limits of OEC 803(18)(a)(b). Which means it's all the more likely a well-preserved objection will result in an appellate decision that will provide clarity (and maybe get the convictions overturned.)
</p>https://libraryofdefense.ocdla.org/Blog:Main/The_Brown-Poston_DemurrerThe Brown-Poston DemurrerRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-09-28T21:38:48Z2023-09-28T21:39:36Z<p>This is from a Brown-Poston demurrer.
</p><p><b>SUMMARY OF ARGUMENT</b>
</p>
<dl><dd>Under current case law, the state must allege the legal basis for joining counts in a mult-count indictment. If the basis for joinder is not properly alleged, the indictment is vulnerable to a demurrer.
</dd></dl>
<dl><dd>Under more recent case law, specifically <i>State v. Brown,</i> 326 Or App 46, 57 (2023), the Court of Appeals has held that, in order for joinder of multiple counts to be proper, each count must be properly joined with every other count. In other words, that A is properly joined with B and B is properly joined with C is not enough to allow joinder in one indictment unless A is also properly joined with C.
</dd></dl>
<dl><dd>In this case, the indictment expressly alleges why some of the counts are properly joined with some of the other counts. However, under <i>Brown</i>, that is not good enough. It is not sufficient to alleged, as here, that “Count 7 (Reckless Driving) was “of the same or similar character and a common scheme and plan as Count 5.” It must set forth in the indictment why count 7 is properly joined with all other counts in the indictment, not merely one other count.
</dd></dl>
https://libraryofdefense.ocdla.org/Blog:Main/Updated_Argument_on_Gun_MinimumUpdated Argument on Gun MinimumRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-09-24T19:21:43Z2023-09-24T19:21:43Z<p>Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.
</p><p>I have also added a constitutional argument.
</p><p>Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:
</p><p>Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count.
</p><p>I have also added a constitutional argument.
</p><p>Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument:
</p><p><br />
</p>
<dl><dd>There can be no dispute that murder in this case is the primary offense. 213-003-0001(17) (“’Primary offense’ means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.”) As the name suggests, the primary offense is to be sentenced first. In fact, the entire sentencing guidelines is premised on the idea of the primary offense being sentenced first.
</dd></dl>
<dl><dd>When imposing sentencing on the charge of murder in the second degree with a firearm, the court must either impose the firearm minimum under ORS 161.610(4) or suspend the sentence under ORS 161.610(5)(b):
</dd></dl>
<dl><dd>If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may "impose a lesser sentence in accordance with the rules of the Oregon Criminal Justice Commission."
</dd></dl>
<dl><dd>Self-evidently, this court cannot impose a guidelines sentence on murder, so ORS 161.610(5)(b) may not even be an option, leaving us with only one choice, i.e., imposing the gun minimum on the murder count. But even if this court were to find that ORS 161.610(5)(b) authorized the non-imposition of the 60 month sentence, despite the fact that the defendant would still serve more than 60 months, there is still a legal footprint. That is to say, by exercising this court’s discretion under ORS 161.610(5)(b), there is a still a legal effect, regardless of whether the 60 months of the defendant’s life sentence is counted towards the gun minimum.
</dd></dl>
<dl><dd>Specifically, ORS 161.610(4)(b) imposes a 10 year minimum on a subsequent firearm conviction. A court’s decision to suspend the 60-month sentence is still an application of the statute, because it still has legal effect under 161.610(4)(b):
</dd></dl>
<dl><dd>(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.
</dd></dl>
<dl><dd>Nevertheless, the state asks this court to defer the gun minimum from the primary count to count 3, so that the 60-month sentence is then run consecutively to the murder. This would not be a lawful sentence.
</dd></dl>
<dl><dd>First, of all, there is no authority for the State’s position that a sentencing court can “defer” the gun minimum on the primary count and then impose it on a subsequent count. On a first conviction for a gun minimum charge, the court can either impose the gun minimum or impose a lesser-sentence after finding mitigating factors. It does not say it can be deferred.
</dd></dl>
<dl><dd>Furthermore, as demonstrated by the citations above, even if this court were not to count 60 months of the defendant’s murder sentence to the firearm minimum, the statute – ORS 161.640 – continues to have operational effect, since it would result in a mandatory ten-year minimum on the second gun minimum conviction. It still leaves a legal footprint. Since that footprint remains, the subsequent imposition of a gun minimum sentence on count 3 would violate the prohibition against multiple gun minimum sentences per case.
</dd></dl>
<dl><dd><i>State v. Pouncey</i>, 303 Or App 365 (2020), is not to the contrary. Defendant in that case made an argument that the case law from the Court of Appeals stated that the firearm minimum had to be imposed on the count sentenced first. That was inaccurate. Case law had not previously addressed this issue at all. Because the defendant misstated the court’s case law, the Pouncey court – somewhat curtly – dismissed the argument without addressing the merits. (“We also reject defendant's assignment of error on the firearm-minimum-sentence issue, because his argument misstates our case law regarding ORS 161.610(4).” [Emphasis added.])
</dd></dl>
<dl><dd>In other words, it is still an open question as far as the appellate courts are concerned because the court has never been squarely presented with the issue, especially not in the way articulated this memorandum.
</dd></dl>
<dl><dd>Nevertheless, the statutes and administrative rules are not reasonably in dispute.
</dd></dl>
<p>Please e-mail me for the full memo.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Upward_DeparturesUpward DeparturesRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-09-13T20:50:37Z2023-09-13T20:50:37Z<p>Meg Huntington will be presenting on the law on upward departures this weekend at the OCDLA Conference in Newport. The materials for the conference have been made available to all attendees. I can tell you that her materials are very thorough, and there is no doubt that when I receive an upward departure notice in the future, I will be comparing the alleged factors to her materials. If you are unable to go to the conference, you should nevertheless order her materials. They are that useful.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Can_the_Judge_Pick_and_Choose_Which_Count_To_Impose_the_Gun_Minimum_On%3FCan the Judge Pick and Choose Which Count To Impose the Gun Minimum On?Ryan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-08-16T23:18:28Z2023-08-16T23:20:28Z<p>A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610.
</p><p>The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once.
</p><p>Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence.
</p><p>The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows:
</p><p>A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610.
</p><p>The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once.
</p><p>Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence.
</p><p>The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows:
</p><p>In the above-hypothetical, there can be no dispute that robbery is the "primary offense." 213-003-0001(17) (“’Primary offense’ means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.”)
</p><p>As the name suggests, the primary offense is to be sentenced first. In fact, the entire sentencing guidelines is premised on the idea of the primary offense being sentenced first.
When imposing sentencing on the charge of robbery in the first degree with a firearm, the court must either impose the firearm minimum under ORS 161.610(4) or suspend the sentence under ORS 161.610(5)(a):
</p>
<dl><dd>If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may:
</dd><dd>(a) For felonies committed prior to November 1, 1989, suspend the execution of the sentence or impose a lesser term of imprisonment, when the court expressly finds mitigating circumstances justifying such lesser sentence and sets forth those circumstances in its statement on sentencing. . . .
</dd></dl>
<p>If the court did so, the suspension of the firearm minimum sentence still leaves a legal footprint. Specifically, ORS 161.610(4)(b) imposes a 10 year minimum on a subsequent firearm conviction. A court’s decision to suspend the 60-month sentence is still an application of the statute, because it still has legal effect under 161.610(4)(b):
</p>
<dl><dd>(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:
</dd></dl>
<ul><li> * *
</li></ul>
<dl><dd>(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.
</dd></dl>
<p>The state will ask to defer the gun minimum from the primary count to count 2, so that the 60-month sentence is imposed on felon in possession and then run consecutively to the robbery charge. This would not be a lawful sentence.
</p><p>First, of all, there is no authority for the State’s position that a sentencing court can “defer” the gun minimum on the primary count and then impose it on a subsequent count.
On a first conviction for a gun minimum charge, the court can either impose the gun minimum or impose a lesser-sentence after finding mitigating factors. It does not say it can be deferred.
</p><p>Furthermore, as demonstrated by the citations above, even if this court were not to impose the 60 month firearm minimum on the robbery charge, the gun minimum statute – ORS 161.640 – continues to have operational effect, since it would result in a mandatory ten-year minimum on the second gun minimum conviction. It still leaves a legal footprint. Since that footprint remains, the subsequent imposition of a gun minimum sentence on count 2 would violate the prohibition against multiple gun minimum sentences per case.
</p><p><i>State v. Pouncey</i>, 303 Or App 365 (2020), is not to the contrary. Defendant in that case made an argument that the case law from the Court of Appeals stated that the firearm minimum had to be imposed on the count sentenced first. That was inaccurate. Case law had not previously addressed this issue at all. Because the defendant misstated the court’s case law, the Pouncey court – somewhat curtly – dismissed the argument without addressing the merits. (“We also reject defendant's assignment of error on the firearm-minimum-sentence issue, <b>because his argument misstates our case law regarding ORS 161.610(4)</b>.” [Bold added.])
</p><p>In other words, it is still an open question as far as the appellate courts are concerned because the court has never been squarely presented with the issue. Nevertheless, the administrative rules, statutes, case law and analysis presented above are not reasonably in dispute.
</p>https://libraryofdefense.ocdla.org/Blog:Main/What_Can_Brown_Do_for_You%3FWhat Can Brown Do for You?Ryan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-08-16T22:58:35Z2023-08-16T22:58:59Z<p>In September, I will be presenting at the OCDLA CLE in Newport. I will be speaking on severance, aka, having separate trials for different counts. You'll need to go to the conference for my full presentation, but I wanted to alert everyone to <i>State v Brown,</i> 326 Or App 46 (2023).
</p><p>In Brown, the Court of Appeals held that all counts that are joined for trial must be properly joined with all other counts. They rejected the argument that "if A is properly joined with B and B is properly joined with C, then A, B and C, can all be joined in one trial, even if count A and count C are not properly joined."
</p><p>Here's the most basic hypothetical I can think of. If the defendant -- a convicted felon -- is charged with murder in December by stabbing, and a second murder in January by shooting, he might fact the following charges:
</p><p>Count 1: Murder
</p><p>Count 2: Murder w/ a Firearm
</p><p>Count 3: Felon in Possession of a Firearm w/ a Firearm.
</p><p>Assume the murders are completely unrelated. Before Brown, the state would argue that count 1 is properly joined with count 2 because the counts are "same or similar." They would also argue that count 2 and count 3 are properly joined because they are from one criminal episode and part of a common scheme or plan.
</p><p>Post-<i>Brown</i>, the defendant would counter that count 1 and count 3 are not properly joined. They are not "same or similar." They are not part of the same transaction or a common scheme or plan. There is no independent basis for joining counts 1 and 3. Therefore, each murder should have a separate trial. There is no obligation for the defendant to show "substantial prejudice," although obviously each trial will be more fair if tried separately.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Third_Proportionality_Post_in_a_RowThird Proportionality Post in a RowRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-08-03T23:27:04Z2023-08-03T23:27:04Z<p>There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor.
</p><p>There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor.
</p><p>My first example can't be blamed on the prosecutor but rather the judge. When a defendant is sentenced on multiple counts, and the counts arise from the same criminal episode, the judge is supposed to sentence on the primary offense first, which is the offense with the highest crime seriousness level (CSL). So assume, for example, a defendant is charged with Assault in Second Degree and Burglary in the First Degree. The victim in both is the same. The CSL for both is 9, so either could be the "primary offense." The defendant has a criminal history score of C. If the Assault II is sentenced first, it is sentenced under M11, and a 70 month sentence is imposed, even though the gridblock is 56-60 months in prison. If the judge were to run the burglary sentence consecutively, the shift-to-I rule would kick in, and the defendant would fall into the 9I gridblock, with a presumptive sentence of 34-36 months. In total, the defendant would get 104-106 months in DOC custody.
</p><p>But if the judge determines that the Burglary is the primary offense, he gets 56-60 months on the burglary, and he gets the same 70 M11 time on the assault, even if run consecutively, so his total sentence is 126-130 months in DOC custody.
</p><p>Because the higher sentence is based not on anything unique about the defendant or the circumstances of the case, but just the creativity of the court, I believe you should invoke Article I, section 16, and object to the sentence.
</p><p>Back to prosecutors. Ever since <i>State v. Dulfu</i>, prosecutors can achieve a higher sentence on multiple counts of ECSA I by not charging a theory of "possession with intent to distribute," something they used to do quite regularly. Instead, the defendant is only charged with duplication, which is often the result of downloading the images. In other words, the state can get a greater sentence by not charging the defendant as a distributor but only as an end user.
</p><p>Unlawful Use of a Weapon is another crime where the state will often go forward on fewer alternative theories of guilt, because fewer theories can often prohibit merger and allow consecutive sentences.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Proportionality_Clause_and_Sentences_Consecutive_to_MurderProportionality Clause and Sentences Consecutive to MurderRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-08-02T23:10:51Z2023-11-10T17:13:59Z<p>Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023.
</p><p>Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023.
</p><p>Article I, section 16, of the Oregon Constitution provides, in relevant part:
</p><p>Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.
</p><p>The Oregon Supreme Court has identified the following three factors for determining whether a sentence is constitutionally disproportionate to the offense, as applied to a particular defendant: "(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." <i>State v. Rodriguez/Buck,</i> 347 Or 46, 58, 217 P3d 659 (2009).
</p><p>The first factor is relevant here. Under that factor, a court "may consider, among other things, the specific circumstances and facts of the defendant's conduct that come within the statutory definition of the offense," such as the defendant's personal characteristics. Id. at 62. An offender's intellectual disability, for example, is such a characteristic. <i>Ryan,</i> 361 Or at 620-21. In <i>Ryan,</i> the Supreme Court held that, where evidence of an offender's intellectual disability is presented, a trial court must consider that intellectual disability, including how the disability affects the offender's level of understanding of the nature and consequences of his conduct and his ability to conform his conduct to the law. <i>Id.</i> at 621. A trial court commits reversible error where the record demonstrates that the court only "generally note[s]" the fact of an offender's intellectual disability rather than addressing the "constitutional implications" of a defendant's intellectual disability on the gravity of the sentence. Id. at 624. A trial court, therefore, must address on the record a defendant's intellectual disability in comparison to the gravity of the offense. <i>State v. Fudge</i>, 297 Or App 750, 757, 443 P3d 1176, <i>rev den,</i> 365 Or 819, 453 P3d 1289 (2019).
The personal characteristic Mr. Smith asks this Court to consider is not intellectual disability but rather reformation. That said, though Mr. Smith has demonstrated reformation since the prior sentencing, it is not only his current reformation that he is asking the court to consider. Rather, he is asking that this court consider the fact that when Mr. Allen begins serving a consecutive sentence on this case, the parole board will have necessarily found he "is likely to be rehabilitated within a reasonable period of time.” ORS 163.107(3)(a).
</p><p><b>B. ORS 163.107(3)(a)</b>
</p><p>Mr. Smith is currently serving a sentence for murder. ORS 163.107; State v. Smith, 21CRxxx25. He will be eligible for parole after at least twenty-five years, but only after he has met his statutory burden. That burden is to show that he is “likely to be rehabilitated within a reasonable period of time.” ORS 163.107(3)(a). In fact, that is the “sole issue.” <i>Id.</i>
</p><p>Mr. Smith stipulates upfront that we do not know if he will be able to meet burden. He may not, and may ultimately serve his entire life in prison on the murder conviction alone. But the sentence this court imposes in this case only matters if it is run consecutively. Self-evidently, if it is run consecutively, it begins only after he is paroled on the murder charge, whether that occurs following twenty-five or thirty-five or forty years in custody. Consequently, this court – when determining whether to impose a consecutive sentence or whether a consecutive sentence is proportionate as applied to Mr. Smith – should assume Mr. Smith has met his burden to prove imminent reformation. The sentence this court imposes on this case is only relevant if he has in fact demonstrated imminent reformation.
</p><p><b>C. Aggregate Sentences and Article I, section 16.</b>
</p><p>There is presumably no dispute that being reformed is a personal characteristic, and therefore it implicates the constitutional limitations of Article I, section 16. Mr. Smith can only meet that burden after serving at least twenty-five years on a murder conviction.
</p><p>However, Mr. Smith is not arguing that the aggregate sentence – the sentence for murder plus the sentence on this case, if run consecutively – is disproportionate. In <i>State v. Horner</i>, 306 Or App 402, 403-04, 474 P3d 394 (2020), the Court of Appeals addressed the disproportionality of aggregate sentences. The court rejected the defendant’s argument that a sentencing court should consider the aggregate sentence in its disproportionality analysis. In doing so, the court relied on the holdings in <i>State v. Parker,</i> 259 Or App 547, 549, 314 P3d 980 (2013), <i>rev den,</i> 355 Or 380 (2014) and <i>Real v. Nooth</i>, 268 Or App 747, 756, 344 P3d 33, <i>rev den</i>, 357 Or 550, (2015). In those cases, the court “deemed it ‘not appropriate’ to consider the defendant’s disproportionality challenge to an aggregate sentence.” <i>Horner,</i> 306 Or App at 403. In so holding, the <i>Horner</i> court noted that its holding in <i>Parker</i> and <i>Real</i>, “that disproportionality challenges with respect to aggregate sentences imposed on convictions for multiple counts are not cognizable under Article I, section 16,” was supported by “little published analysis.” <i>Id.</i> at 404. Nonetheless, the Horner court affirmed the trial court under <i>Parker</i> and <i>Real</i> but noted that the question remains open in the Supreme Court.
</p><p>Although this case involves consecutive sentences, the issue is not one of aggregate sentences. It is solely about constitutional limitations on the length of a prison sentence that begins after the defendant has been found “likely to be rehabilitated” by the Parole Board.
</p><p>To the extent this court or the Court of Appeals conclude the issue as framed by Mr. Smith is still one of “aggregate sentences,” Mr. Smith argues that the Horner court erred. The text of Oregon’s Proportionality Clause provides that “all penalties shall be proportioned to the offense.” Or Const, Art I, § 16. A “penalty” includes “the amount of time that the wrongdoer must spend in prison,” <i>State v. Rodriguez/Buck</i>, 347 Or 46, 60, 217 P3d 659 (2009), and the Proportionality Clause refers to “all penalties,” in the plural. Or Const, Art I, § 16. According to the text, then, courts must consider “all” of the time a defendant is required to spend in prison. Or Const, Art I, § 16
</p><p>Of course, the text also refers to “the offense,” in the singular, which suggests that proportionality review might focus only “on each individual crime . . . and on the corresponding sentence imposed for that crime.” <i>Carey-Martin,</i> 293 Or App at 622. But the Supreme Court has already rejected that narrow reading of the text. Under the Proportionality Clause, “the offense” is limited neither to the conduct prohibited by statute, <i>Rodriguez/Buck</i>, 347 Or at 61–62, nor to the underlying facts of a single criminal offense. <i>State v. Althouse</i>, 359 Or 668, 375 P3d 475 (2016). It includes “the specific circumstances of the charged and uncharged offenses that make up [a defendant’s] criminal history.” <i>Id</i>. at 686; <i>see also Rodriguez/Buck</i>, 347 Or at 58; <i>Carey-Martin</i>, 293 Or App at 685–88 (Garrett, J., dissenting).
</p><p>Again, Mr. Smith does not see this as an issue involving the application of Article I, section 16, to aggregate sentences, but only regarding the length of the sentence in this case, and only if it begins following a finding of imminent reformation. But the argument above is set forth in case, in that regard, any of the appellate courts see it differently.
</p><p><b>D. Reformation is the North Star of Punishment Under Oregon Law</b>
</p><p>The context of Article I, section 16, includes the original text of Article I, section 15, which stated "[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." Although Article I, section 15, has been amended to no longer include that text, at the time the people voted to adopt the Oregon Constitution, including Article I, section 16, the constitution included the original version of Article I, section 15. With that context in mind, it becomes clear that the intent of the people of Oregon, when they voted to adopt the state constitution, was that a proportionate sentence was one that was based on reformation and a disproportionate sentence was one that was vindictive. A sentence imposed on a person with no criminal history that ensures the person will never be released from prison is not based on reformation and is, by its nature, vindictive and, therefore, disproportionate.
</p><p>As the Oregon Supreme Court noted in <i>Priest v. Pearce</i>, the historical circumstances leading to the adoption of a particular constitutional provision is to be considered when determining the intent of the framers and the people who ultimately ratified the constitution. 314 Or 411, 415-16, 840 P2d 65 (1992). And the Supreme Court also held in <i>Oberg v. Honda Motor Co., Ltd.</i>, the context of a disputed constitutional provision may also include not just the surrounding words of the section in dispute, but also other related provisions of the constitution. 316 Or 263, 274, 851 P2d 1084 (1993), <i>rev’d on other grounds</i>, 512 US 415 (1994). In <i>Oberg,</i> the question was whether the fines provision of Article I, section 16, was limited to criminal cases. After referring to related sections, specifically, Article I, section 14, and Article I, section 15, thr court concluded that Article I, section 16, does not apply to civil awards of punitive damages. <i>Id.</i> at 275; <i>see also,</i> Jack L. Landau, <i>An Introduction to Oregon Constitutional Interpretation,</i> 55 Willamette L Rev 261, 270-74 (2019)(explaining that “the ‘text’ of a provision of the constitution is never examined in isolation; instead, it’s always examined in context,” and that context includes “other related provisions of the constitution”).
</p><p>The citizens of Oregon, when voting to adopt the constitution, would have understood that a proportionate sentence was one that was based on the principles of reformation and, conversely, that a disproportionate sentence was once based on vindictive justice. In other words, when asking whether a sentence is disproportionate to the offense, part of the question is whether that sentence based on the principles of reformation and not on vindictive justice.
</p><p>To emphasize, defendant is not arguing that the original text of Article I, section 15, controls. The argument is that the original text of Article I, section 15, provides necessary context to what the people would have understood the text of Article I, section 16, to mean.
</p><p>In this case, it would be disproportionate to impose a ten-year, much less twenty-year, sentence on a person only after they had shown that they had been rehabilitated. It would be cruel and vindictive.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Proportionality_Clause_and_Sex_Abuse_II_Based_on_AgeProportionality Clause and Sex Abuse II Based on AgeRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2023-08-02T23:01:56Z2023-08-03T23:29:08Z<p>Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.
</p><p>Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior?
</p><p>Article I, section 16, of the Oregon Constitution states:
</p><p>Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense.
</p><p>Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior?
</p><p>The Supreme Court touched on this in <i>State v. Pirkey</i>, 203 Or. 697 (1955), <i>overruled on other grounds, Klamath Falls v. Winters</i>, 289 Or. 747 (1955), which noted:
</p><p>The statute in question here defines and prohibits a specific act and provides punishment therefor, but there is no semblance of a classification which would enable one to ascertain under what circumstances he may be guilty of a felonious crime, or under what circumstances he may be guilty only of a misdemeanor. So far as the statute is concerned, the same identical act, under the same circumstances, may constitute a felonious crime when committed by one person, and a misdemeanor when committed by another. It might be said that this statute classifies punishments, but does not classify the circumstances to which the diverse punishments are to be applied. This is not legal classification. It is legal chaos. The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *" Oregon Constitution, Article I, Section 16. <b>In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.</b>
</p><p><i>Id.</i> at 704-705. [Emphasis added.]
</p><p>Which brings us to Sexual Abuse in the Second Degree.
</p><p>ORS 163.425(1)(a) provides that a person commits the crime of Sexual Abuse II when that person subjects another person to sexual intercourse (including oral and anal) and the other person “does not consent thereto.” Although it is classified as a level 7 on the sentencing grid, under Oregon case law, a conviction for a violation of 163.425(1)(a) when based on age cannot be ranked any higher than a Category 6. See ORS 163.315(1)(a); <i>State v Simonson</i>, 243 Or App 535, 541-42 (2011) (Article I, § 16 violated by imposing a crime seriousness score of 7 for Sexual Abuse II in the case of incapacity due to age when the more serious crime of Rape III has a lower crime seriousness score of 6); <i>State v Burge,</i> 252 Or App 574, 575-76 (2012) (same).
</p><p>Assume that Mr. Smith and Ms. Jones engaged in mutual, factually consensual sexual acts. The state alleges that those acts are prohibited by 163.425(1)(a) and that, because Ms. Jones was 16 at the time of at least some of the sexual acts, she was legally incapable of consent under 163.315(1)(a). Therefore, the state has charged Mr. Smith with multiple counts of Sexual Abuse II.
</p><p>Intercourse with a 16 year old is also prohibited by another statute, Contributing to the Sexual Delinquency of a Minor (ORS 163.435), a misdemeanor. While Sexual Abuse II prohibits sex with a 16 year old in a somewhat roundabout way (<i>See State v Ofodrinwa</i>, 353 Or 507 (2013), for the legislative history), Contributing is more direct: it specifically prohibits, in relevant part, a male from “engag[ing] in sexual intercourse with a female under 18 years of age.” ORS 163.315.
</p><p>Article I, section 16, of the Oregon Constitution requires that “all penalties shall be proportioned to the offense.” An “offense,” for the purpose of the proportionality analysis, “is the specific defendant’s particular conduct toward the victim that constituted the crime, as well as the general definition of the crime in the statute.” <i>State v Rodriguez/Buck</i>, 347 Or 46, 62 (2009). The principle of vertical proportionality recognizes that “a greater or more severe penalty should be imposed for a greater or more severe offense, and conversely that a less severe penalty should be imposed for a less severe offense.” <i>Id., Simonson,</i> 243 Or App at 541 (emphasis supplied).
</p><p>The <i>Simonson</i> Court determined that a violation of ORS 163.425(1)(a) could not be ranked at a Crime Seriousness Scale higher than a level 6 because to do so would violate the vertical proportionality prong of Article I, § 16 of the Oregon Constitution. In asking the Simonson Court to hold that the trial court should have imposed a less severe penalty, the defendant compared the acts alleged in Simonson [violation of 163.425(1)(a)] with the acts involved in Rape III (Criminal History Scale 6) and asserted that the Crime of Sexual Abuse II could not be ranked higher than a level 6 when compared to Rape III. However, the <i>Simonson</i> Court was not presented with, nor did it rule upon, the question of whether or not a violation of 163.425(1)(a) must be ranked lower than a Category 6 . The defendant in Simonson did not argue, and the Court did not address, the assertion made herein that the same conduct punishable under ORS 163.425(1)(a) is also punishable as a Class A misdemeanor (Contributing to the Sexual Delinquency of a Minor). Compare ORS 163.425(1)(a) with ORS 163.435 .
</p><p>The vertical proportionality analysis proceeds by examining the offense conduct and the relative severity of related crimes. <i>Simonson,</i> 243 Or App at 541. When the severity of the penalty for the crime of conviction does not align with the severity of the offense conduct, as compared to the penalties set out for related offenses, the court must impose the less severe penalty. Id. at 541-2. The <i>Simonson</i> court held that punishing a person for having sexual intercourse with a person under the age of 18 more severely than punishing a person for having sexual intercourse with a person under the age of 16 violated the vertical proportionality prong of Article I, § 16. <i>Simonson,</i> 243 Or App at 541-2.
</p><p>The same constitutional principles applied in <i>Simonson</i> guide the analysis here. The state alleges that Mr. Smith’s offense conduct resulted from a mutual sexual relationship with Ms. Jones. Just as in Simonson, this conduct involved factually consensual sexual acts with a female over the age of 16 but under the age of 18. As in Simonson, the “lack of consent” was due solely to the fact that the law has determined that Ms. Jones is incapable of consent because she was under 18 at the time of the alleged offenses. The defendant in Simonson would have been punished less severely under a statute prohibiting the same conduct with a younger minor — a more severe offense. Simonson, 243 Or App at 541-2. His exposure to higher punishment for less severe conduct was held to be unconstitutionally disproportionate. Id. The same constitutional proportionality problem arises when identical conduct is punished more severely under one statute and less severely under a similar statute, especially where the punishment gap is between a felony and a misdemeanor.
</p><p>As noted above, the arbitrary punishment of a crime as either a felony or a misdemeanor was found to implicate the Oregon Constitution in <i>State v. Pirkey,</i> 203 Or. 697 (1955), <i>overruled on other grounds, Klamath Falls v. Winters,</i> 289 Or. 747 (1955). <i>Pirkey</i> had ultimately hinged its hold on the Equal Privileges Clause of the Oregon Constitution, and it is application of that clause – and only that clause -- which was overruled in <i>Klamath Falls v. Winters.</i> Its statements regarding Article I, section 16, have not been overruled.
</p><p>If you find yourself in an open sentencing situation for a client charged with sex abuse II based on age, I would move for immediate misdemeanor treatment because the felony sentence is disproportionate.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Attempted_DCS_SentencingAttempted DCS SentencingRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2021-10-24T22:51:08Z2023-08-03T23:31:21Z<p>Every Attempted DCS felony has a crime seriousness level (CSL) 2. It does not matter if the defendant is charged with substantial quantities of commercial drug offense factors.
</p><p>Every Attempted DCS felony has a crime seriousness level (CSL) 2. It does not matter if the defendant is charged with substantial quantities of commercial drug offense factors.
</p><p>Sample argument for your Attempted DCS/PCS-CDO sentencing memorandum.
</p><p>LAW and ARGUMENT
</p><p><b>I. The CSL for Attempted DCS is a Level-2</b>
</p><p> Mr. Smith was convicted of attempted delivery of a controlled substance. The jury also found three factors necessary for a finding of a commercial drug offense (CDO). This court reserved until sentencing the question whether CDO factors could apply to a charge of attempted delivery of a controlled substance.
CDO factors are “sentencing enhancement factors” which elevate a completed delivery (DCS) from a level-4 crime seriousness level (CSL) to a level-8. CDO factors are not elements of the crime. See State v. Scott, 283 Or App 566, 388 P3d 1148 (2017) (reaffirming that principal and summarizing the long-standing case law on the topic). Because the attempt statute only applies to crimes and not sentencing enhancement factors, it does not apply to CDO factors.
ORS 161.405 “Attempt” described. (1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of <i>the crime</i>. [Emphasis added.]
</p><p> Nevertheless, the state is expected to rely on the argument that a completed DCS in this case would be a level-8, an attempted DCS should be a level-6, not a level-2. (“213-004-0005
</p><p>Attempts And Solicitations (1) A conviction for an attempted crime shall be ranked on the Crime Seriousness Scale at two crime categories below the appropriate category for the completed crime.”
This puts the cart before the horse. First, the CDO factors only apply to crimes listed at ORS 475.752, 475.806 to 475.894, 475.904 or 475.906.” ORS 475.900. “Attempted DCS” is not among those crimes listed. A person convicted of an attempt is not convicted under the statute defining the completed offense. Rather, he is convicted under the attempt statute, ORS 161.405. See State v. Becker, 171 Or App 721, 15 P3d 1264 (2000)(“Under Oregon law, a person who is convicted of attempted assault in the first degree is not guilty under the assault statute.”)
Consequently, the CDO factors simply cannot apply to a crime that it is not among the listed statutes in ORS 475.900. Under Oregon law, attempted DCS is not among those statutes.
Alternatively, OAR 213-004-0005 ranks the CSL for an attempt at 2 below the completed crime. Because CDO factors do not constitute elements of a crime, a “completed crime” of DCS is a level-4. An attempt would therefore be a level-2.
</p><p>I<b>I. Ranking the PCS Higher than a Level-2 Would Violate Article I, section 16, of the Oregon Constitution</b>
</p><p> Mr. Smith is also charged with Possession of Controlled Substance (PCS), charged as a level-8 offense because of the CDO factors. However, sentencing Mr. Smith as a level-8 on a possession charge would violate the rule against proportionality. Article I, section 16 of the Oregon Constitution commands that even if convicted of that charge, Mr. Smith be sentenced on that count as a level-2.
In State v. Bartol, 368 Or 598 (2021), the Supreme Court conducted a lengthy review of the history and application of proportionality clause of Article I, section 16. It is worth reading in full and provides complete support for Mr. Smith’s arguments. It concluded its review as follows:
</p>
<dl><dd>To summarize, Article I, section 16, expressly prohibits disproportionate punishments. It embodies “the basic proportionality concept” that “more serious crimes should receive more severe sentences than less serious crimes and vice versa.” Rodriguez/Buck, 347 Or at 61. Or, to echo Blackstone, “penalties of the first degree” should not be assigned to “offenses of an inferior rank.” 4 Blackstone, Commentaries at 18, quoted in Wheeler, 343 Or at 662. Like the Eighth Amendment’s proportionality requirement, Article I, section 16’s proportionality requirement must be interpreted based on current societal standards. It is not static; it evolves as societal standards change. When determining whether a punishment is disproportionate, courts apply the standards that currently prevail. And finally, while it is the role of the legislature to establish penalties for criminal statutory violations, it is the role of the courts to give effect to the constitutional proportionality requirement—by setting aside punishments that, under prevailing societal standards, are disproportionate to the offenses for which they are imposed.
</dd></dl>
<p>Id. at 621.
</p><p> PCS is, self-evidently, a less serious crime than attempted delivery. Under the Bartol analysis, it is probably not a requirement of a proportionality violation that the less-serious offense is a lesser-included offense of the more-serious offense. Nevertheless, under current law, PCS is a lesser-included offense of attempted DCS.
Under an analysis that has since been rejected by the Oregon Supreme Court, the Court of Appeals held that an individual could commit the crime of Delivery of a Controlled Substance without committing the crime of Possession of a controlled substance. State v. Sargent, 110 Or App 194 (1991)(affirmed on other grounds, 323 Or 455). However, Sargent hinged on the claim that one could commit a delivery based on a theory of solicitation, even if the defendant did not have or possess the drugs themselves. The Oregon Supreme Court rejected the argument that an attempt encompassed a solicitation in State v. Kimbrough, 364 Or 66 (2018), implicitly overruling Sargent.
Furthermore, the evidence that constitutes an attempted delivery under Fischer or Hubbell necessarily requires possession of the substance. See State v. Blake, 348 Or 95, 101, 228 P3d 560 (2010)(concluding that because one cannot utter a forged instrument without first possessing it, proof of uttering necessarily includes proof of possession.)
Combining the decisions in Hubbell, Fischer, Kimbrough and Blake, it is not reasonably in dispute that a person cannot commit the crime of attempted DCS if they do not, actually or constructively, possess the controlled substance to be delivered.
Inevitably, imposing a level 8 sentence on a crime that constitutes a less-serious offense than a level 2 offense violates proportionality. See State v. Koch, 169 Or App 223 (2000)(imposing a greater sentencing for a forgery of more than $1000 violated the proportionality clause when he received a greater sentence than he could get for a forgery involving more than $5000).
Similarly, in State v. Simonson, 243 Or App 535, 259 P 3d 962 (2011), rev den, 353 Or 788 (2013), imposing a greater sentence (CSL 7) for sexual abuse in the second degree than could be imposed on the greater offense of rape in the third degree (CSL 6) violated the Oregon Constitution, specifically Article I, section 16.
</p><p><b>CONCLUSION</b>
</p><p> An attempted DCS must be ranked at a level 2. The conduct for an attempted DCS, taking a substantial step towards delivering drugs to another person, is a worse offense than a person merely possessing drugs. Therefore, as in Simonson, it violates the tenets of vertical proportionality to assign Mr. Smith a grid score of 8 for his possession charge when an attempted DCS is only a level-2. It also violates fundamental common sense to send a person to prison for possession when an attempted DCS is, presumptively, an 18 month probation.
</p>https://libraryofdefense.ocdla.org/Blog:Main/Incorporating_the_Grand_Jury_Clause_from_the_Bill_of_Rights_to_State_ProsecutionsIncorporating the Grand Jury Clause from the Bill of Rights to State ProsecutionsRyan@ryanscottlaw.comhttps://libraryofdefense.ocdla.org/User:Ryan@ryanscottlaw.com2018-11-29T18:23:11Z2018-11-30T20:07:08Z<p>Yesterday, in a case called <i>Timbs v. Indiana</i>, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.
</p><p>When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating <i>some</i> of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called <i>Hurtado v. California</i>, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.
</p><p>Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.
</p><p>In the <i>Timbs</i> case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:
</p>
<dl><dd>Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” <b>Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.</b>”
</dd></dl>
<p>[Emphasis added.]
</p><p>Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.
</p><p>I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"
</p><p>That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?
</p><p>But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as <i>Blakely</i> elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.
</p><p>But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.
</p><p>Put another way, if <i>Hurtado v. California</i> were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.
</p><p>(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)
</p><p>Since Justice Gorsuch appears to believe that <i>partial</i> incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.
</p><p>But I mentioned above that <i>Hurtado</i> "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?
</p><p>While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:
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<dl><dd>Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
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<p>In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.
</p><p>This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:
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<dl><dd>At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
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<p>That sounds like exactly what <i>Hurtado</i> did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.
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