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Today, the Oregon Supreme Court issued an opinion in State v. Azar. The split opinion significantly narrowed the scope of one particular theory of felony computer crime. Even if you don't have a felony computer crime case, it is worth reading -- both the majority opinion and the dissent -- on the circumstances in which legislative history can narrow the scope of an otherwise broadly written statute.

And the opinion also suggests a potential defense to theft by selling in (of course) a footnote.

2 Under ORS 164.095(1),“[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.”

Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reaching that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. [Emphasis added.]

If I understand the point of this footnote, the Court is saying that selling stolen property is not necessarily "disposing of the property," and therefore not necessarily theft-by-receiving, until the property is transferred in some way. So, for example, entering into an agreement to sell stolen property, or even receiving money for said property, may not constitute theft-by-receiving until the property is delivered.

I don't anticipate many situations where this would arise, but if it does, citing that footnote at MJOA might make you look like a genius.

I had previously had a blog post where I argued that the first time a gun minimum is imposed, it must be imposed on the most serious offense to which the gun minimum was attached. Therefore, if a defendant is charged with murder with a firearm and felon in possession of a firearm, the gun minimum must be imposed on the murder (where, admittedly, it would have no effect.)

However, is there a time when you'd want the gun minimum imposed on a later count, despite the law? That is, where it's something you'd rather negotiate for. Yes.

First, if the state seeks to impose prison on one count and probation on the other, imposing the gun minimum on the non-prison count would likely increase the availability of sentence-reduction programs (AIP, transitional leave) that would not be available on a prison sentence with the gun minimum finding, even if the gun minimum is not imposed.

Second, even if the defendant is looking at prison on both counts, putting the gun minimum sentence on a non-M11 count may allow a greater reduction for earned time.

For example, assume defendant reaches a deal where he is going to be sentenced to attempted murder and felon in possession. Both allege the gun minimum, and it's the defendant's second gun minimum, so he is looking at 10 years mandatory. If the gun minimum is imposed on the attempted murder, the defendant's 120 month sentence would have 90 months subject to ballot measure 11 and therefore without earned time. The defendant could get earned time on remaining thirty months. Assuming all earned credits are in fact earned, the defendant would serve a sentence of 114 months. But if the defendant receives 90 months on the attempted murder charge and 120 months on the charge of felon in possession of a firearm to run concurrently, the defendant would get earned time on all 120 months, thereby reducing his total time to 96 months. (120-24). This is not speculation. Samson v. Brown, 486 P. 3d 59 (2021)

THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.

Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)

When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions: