Chapter 161

Criminal Code

(Generally)

NOTES OF DECISIONS

Legislature’s adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

Chapter 161

NOTES OF DECISIONS

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

LAW REVIEW CITATIONS: 2 EL 237 (1971); 51 OLR 427-637 (1972)

161.015

NOTES OF DECISIONS

The human hand is not included within the definition of a “dangerous weapon” within the meaning of this section. State v. Wier, 22 Or App 549, 540 P2d 394 (1975)

A theatre which admits persons 18 years or older and where patrons are forewarned as to the nature of the performance is not a public place. State v. Brooks, 275 Or 171, 550 P2d 440 (1976)

Defendant, who had controlled substance injected into his arm, did not “possess” drug so as to have dominion or control over it. State v. Downes, 31 Or App 1183, 572 P2d 1328 (1977)

Testimony, that obscene matter was located in cabinet behind defendant’s desk, in his office, in warehouse owned by corporation of which defendant was part owner, was sufficient for jury to infer that defendant has possession of obscene matter. State v. Cossett, 34 Or App 113, 578 P2d 423 (1978), Sup Ct review denied

Scalding hot water, which caused injury to child, was “dangerous weapon” within meaning of this section. State v. Jacobs, 34 Or App 755, 579 P2d 881 (1978), Sup Ct review denied

One who has purpose of forcibly raping another has purpose of causing “physical injury” within meaning of this section. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Whether instrument constitutes dangerous weapon is not established by resulting injury but rather by injury that could have resulted under circumstances, so whether can opener was dangerous weapon was jury question. State v. Gale, 36 Or App 275, 583 P2d 1169 (1978)

Where only injury suffered by victim was torn shirt, there was no physical injury within meaning of this section. State v. Lindsey, 45 Or App 607, 609 P2d 386 (1980)

Where victim received small cut, which caused her no pain, from flying glass caused by defendant’s breaking of rear window of pickup truck in which she was sitting, she had no impairment of physical condition and therefore no “physical injury” within meaning of this section. State v. Rice, 48 Or App 115, 616 P2d 538 (1980), Sup Ct review denied

Where defendant hit victim with gas can and kicked him in the arm, where victim reported no sensation other than that it “hurt”, where there was no indication of bruising or other injury and victim did not seek medical treatment, evidence was insufficient to find victim suffered “physical injury.” State v. Capwell, 52 Or App 43, 627 P2d 905 (1981)

Since statutory definition of dangerous weapon depends on circumstances in which instrument was used, it was jury question whether under the circumstances article was used in manner capable of causing death or serious physical injury and it was not necessary that indictment allege that defendant intended vehicle to be dangerous weapon. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied

Automobile operated “recklessly,” as defined by ORS 161.085, can be “dangerous weapon” for purposes of assault statute, ORS 163.165. State v. Hill, 298 Or 270, 692 P2d 100 (1984)

Where defendant threw container at victim and it hit victim in face and victim testified that blow hurt, caused redness, swelling and bruising, victim suffered “physical injury” within meaning of this section. State ex rel Juv. Dept v. Salmon, 83 Or App 238, 730 P2d 1285 (1986)

Jury could properly find serious physical injury where there was medical evidence from which jury could conclude beyond reasonable doubt that victim’s mouth and teeth are bodily organs and that there was protracted loss or impairment of those organs. State v. Byers, 95 Or App 139, 768 P2d 414 (1989)

Ordinary object may be classified as dangerous weapon as result of use to which object is put. State v. Bell, 96 Or App 74, 771 P2d 305 (1989), Sup Ct review denied; State v. Reed, 101 Or App 277, 790 P2d 551 (1990), Sup Ct review denied

Trial court did not err in denying motion for judgment of acquittal in trial for robbery in first degree where factfinder could have found under circumstances that “small, hard object” with which victim was struck constituted dangerous weapon. State v. Allen, 108 Or App 402, 816 P2d 639 (1991)

It is injury that could have resulted, not that which did result, that establishes dangerousness of weapon. State v. Allen, 108 Or App 402, 816 P2d 639 (1991)

“Impairment of physical condition” means harm to body that results in reduction of person’s ability to use body or bodily organ. State v. Higgins, 165 Or App 442, 998 P2d 222 (2000)

Under definition of “possess,” proof of physical control does not involve same attributes of dominion and control required to prove constructive possession. State v. Fries, 344 Or 541, 185 P3d 453 (2008)

For purposes of defining “physical injury”, impairment of physical condition occurs if harm prevents body from functioning in normal manner. State v. Hart, 222 Or App 285, 193 P3d 42 (2008)

Term “dangerous weapon” connotes something external to human body. State v. Kuperus, 241 Or App 605, 251 P3d 235 (2011)

Term “police officer” includes tribal police officers. State v. Kurtz, 350 Or 65, 249 P3d 1271 (2011)

Whether “physical injury” as used in this section occurs is based on combination of character of affected bodily function and degree and duration of impairment. Where defendant held pillow over victim’s mouth and nose and prevented victim from breathing for five seconds and caused victim to fear for victim’s life, defendant caused physical injury by impairment of victim’s physical condition. State v. Hendricks, 273 Or App 1, 359 P3d 294 (2015), Sup Ct review denied

For purpose of deadly weapon definition, “presently” capable of causing death or serious injury means to be capable immediately, without hesitation or delay. Norwood v. Premo, 287 Or App 443, 403 P3d 502 (2017), Sup Ct review denied

Physical injury that results in concussion may cause “impairment of health,” as used in this section’s definition of “serious physical injury,” but that impairment must also be “protracted” in order to be considered “serious physical injury.” State v. Stone, 326 Or App 200, 523 P3d 90 (2023), modified 328 Or App 203, 536 P3d 1094 (2023)

ATTY. GEN. OPINIONS: Lawfulness of Multnomah County ordinance regulating public possession of firearms in unincorporated areas of county (1990), Vol 46, p 362

LAW REVIEW CITATIONS: 51 OLR 484, 485, 579, 591, 592 (1972)

161.025

NOTES OF DECISIONS

Imposition of mandatory minimum sentences under ORS 144.110 does not violate proportionality requirements of this section. State v. Turner, 296 Or 451, 676 P2d 873 (1984)

This section, in prohibiting “frequenting a place where controlled substances are used” is not unconstitutionally vague under U.S. or Oregon Constitution. State v. Pyritz, 90 Or App 601, 752 P2d 1310 (1988)

ATTY. GEN. OPINIONS: Construing motor vehicle law as a criminal statute, (1971) Vol 35, p 832

LAW REVIEW CITATIONS: 50 OLR 313 (1971); 51 OLR 428 (1972)

161.035

NOTES OF DECISIONS

Absent express direction or contextual requirement to the contrary, defendants bear burden of proof with respect to all affirmative defenses, including those created after 1971. State v. Haley, 64 Or App 209, 667 P2d 560 (1983)

It is clear legislature intends that Oregon courts sentence criminal defendants under statutory scheme in force when particular criminal act was committed. State v. Isom, 313 Or 391, 837 P2d 491 (1992). But see State v. McDonnell, 329 Or 375, 987 P2d 486 (1999)

Subject to constitutional restrictions, legislature may specify applicability of post-offense amendment to statutory sentence. State v. McDonnell, 329 Or 375, 987 P2d 486 (1999)

Laws governing parole and post-prison supervision are part of criminal sentencing scheme under which offender is sentenced and remain in force with regard to offender unless legislature indicates contrary intent. Day v. Board of Parole and Post-Prison Supervision, 184 Or App 409, 56 P3d 495 (2002)

161.045

NOTES OF DECISIONS

Punitive damages are allowable in a civil case despite a prior criminal conviction for the same act. Roshak v. Leathers, 277 Or 207, 560 P2d 275 (1977)

Where no statute authorized such forfeiture, trial court had no authority to forfeit property to pay compensatory fine. State v. Wills, Jr., 93 Or App 322, 761 P2d 1365 (1988), Sup Ct review denied

161.055

NOTES OF DECISIONS

Where no evidence is given at trial in support of defense raised in pretrial notice, defense issue need not be submitted to jury. State v. Williams, 12 Or App 21, 503 P2d 1254 (1972), Sup Ct review denied; State v. Davis, 14 Or App 422, 512 P2d 1366 (1973), Sup Ct review denied

Under evidence that victim of assault with which defendant was charged was aggressor in fight, defendant was entitled to instruction to jury that State must prove beyond reasonable doubt that defendant had not acted in self defense. State v. McMullen, 34 Or App 749, 579 P2d 879 (1978)

State is not required to disprove affirmative defense raised at trial. State v. Caswell, 53 Or App 693, 633 P2d 24 (1981), Sup Ct review denied

Nothing in this section or any other section authorizes court, over defendant’s objection, to impose defense of not responsible due to mental disease or defect, whether or not state requests it. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984)

When “defense” other than “affirmative defense” is raised at trial, state has burden to disprove defense beyond reasonable doubt. State v. George, 72 Or App 135, 694 P2d 1011 (1985); State v. Olson, 79 Or App 302, 719 P2d 55 (1986)

Where state for first time in rebuttal introduces new evidence to meet burden of disproving defense raised in defendant’s case-in-chief, defendant should be permitted surrebuttal. State v. Wilkins, 175 Or App 569, 29 P3d 1144 (2001), Sup Ct review denied

Even though witness did not observe beginning of exchange that led to assault, defendant was entitled to raise defense of self-defense and defendant was not required to prove that defendant was not initial aggressor because witness testified that witness saw victim pointing gun at defendant and reasonable factfinder could conclude that there was too much uncertainty about what had transpired to be persuaded that defendant did not act in self-defense. State v. Wolf, 288 Or App 613, 406 P3d 1105 (2017)

LAW REVIEW CITATIONS: 51 OLR 534 (1972); 10 WLJ 156 (1974)

161.062

See annotations under ORS 161.067.

161.067

NOTES OF DECISIONS

Under former similar statute (ORS 161.062)

This section clearly shows legislative intent to permit separate convictions for burglary and any crime that burglar intended to commit within building entered except theft or criminal mischief if pleaded as the intended crime and rape was far different from theft or criminal mischief. State v. Pritchett, 90 Or App 342, 752 P2d 331 (1988), Sup Ct review denied

To determine whether convictions merge, court must determine whether: 1) defendant engaged in acts that were same conduct or criminal episode; 2) acts violated two or more statutory provisions; and 3) each statutory provision requires proof of element other provisions do not require. State v. Crotsley, 94 Or App 347, 765 P2d 818 (1988), aff’d 308 Or 272, 779 P2d 600 (1989); Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020)

Attempted murder and attempted assault counts merge with attempted aggravated felony murder count, necessitating remand for entry of single judgment of conviction on latter charge. State v. Fox, 98 Or App 356, 779 P2d 197 (1989), Sup Ct review denied

Subcategories of statute setting forth alternative methods of committing offense are not separate “statutory provisions” and do not create separately punishable offenses. State v. Kizer, 308 Or 238, 779 P2d 604 (1989); State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied; State v. Barrett, 331 Or 27, 10 P3d 901 (2000)

Robbing co-owners of store constituted two crimes because each of owners was victim of robbery. State v. Green, 113 Or App 373, 833 P2d 311 (1992), Sup Ct review denied

Trial court erred in sentencing defendant separately on aggravated murder, robbery and burglary because robbery and burglary are lesser included offenses of aggravated murder. State v. Tucker, 315 Or 321, 845 P2d 904 (1993); Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020)

Where statute describes single crime that may be accomplished by any of several means, actions against single victim that include more than one means of committing crime provide grounds for single conviction on multiple counts of violation of single statutory provision. State v. Beason, 170 Or App 414, 12 P3d 560 (2000), Sup Ct review denied

In general

In case of burglary in the first degree committed with intent to commit crime of theft, burglary and subsequent theft are separately punishable offenses, because this section impliedly repealed merger requirement of [former] ORS 161.062. State v. Cheney, 92 Or App 633, 759 P2d 1119 (1988)

Intended victims of conspiracy to commit particular crimes are “victims,” and trial court properly refused to merge nine convictions of conspiracy to commit forgery of checks, where there were nine intended victims (banks where checks were to be cashed). State v. Graves, 92 Or App 642, 759 P2d 1121 (1988)

Offenses do not merge if proof of each offense requires proof of element others do not. State v. Atkinson, 98 Or App 48, 777 P2d 1010 (1989); State v. Zuniga-Ocegueada, 111 Or App 54, 824 P2d 427 (1992), Sup Ct review denied

Merger of convictions under this section is controlled by statute defining offense, not by factual circumstances. State v. Atkinson, 98 Or App 48, 777 P2d 1010 (1989); State v. Heneghan, 108 Or App 637, 816 P2d 1175 (1991), Sup Ct review denied;

State v. Nunn, 110 Or App 96, 821 P2d 431 (1991), Sup Ct review denied; State v. Wallock/Hara, 110 Or App 109, 821 P2d 435 (1991), Sup Ct review denied

Where plain language of this section precludes merging offenses of robbery and theft and there were two victims of defendant’s offenses, defendant committed separately punishable offenses. State v. Owens, 102 Or App 448, 795 P2d 569 (1990), Sup Ct review denied

Conviction for sexual abuse in second degree does not merge with conviction for rape in first degree. State v. Mezick, 109 Or App 563, 820 P2d 849 (1991)

Trial court did not err when it refused to merge convictions for attempted murder and attempted assault because each crime includes element not included in other. State v. Gilbertson, 110 Or App 152, 822 P2d 716 (1991), Sup Ct review denied

When defendant locked girl in sleeping compartment of truck and drove truck with girl inside compartment for 20 to 30 minutes, trial court did not err in not merging two first degree kidnapping convictions. State v. O’Neall, 115 Or App 62, 836 P2d 758 (1992), Sup Ct review denied

Manslaughter in second degree is not lesser included offense of felony murder. State v. Burnell, 129 Or App 105, 877 P2d 1228 (1994)

In determining whether convictions merge, statutory elements of each offense are examined without regard to underlying factual circumstances alleged in indictment. State v. Sumerlin, 139 Or App 579, 913 P2d 340 (1996); Jones v. State of Oregon, 246 Or App 253, 265 P3d 75 (2011), Sup Ct review denied

Violation of multiple offense subcategories under [former] ORS 475.996 (controlled substances) in committing same act does not create multiple offenses. State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied

Merger occurs where single violation involves multiple victims, but not where single act results in multiple violations. State v. Wise, 150 Or App 449, 946 P2d 363 (1997)

Conviction for attempt to commit greater offense does not merge with conviction for commission of lesser included offense arising out of same conduct. State v. O’Hara, 152 Or App 765, 955 P2d 313 (1998), Sup Ct review denied

To determine whether convictions merge, court must determine whether: 1) defendant engaged in acts that were same conduct or criminal episode; 2) acts violated two or more statutory provisions; and 3) each statutory provision requires proof of element other provisions do not require. State v. Spring, 172 Or App 508, 21 P3d 657 (2001), Sup Ct review denied

Two or more parts of statute are separate “statutory provisions” if parts address separate legislative concerns. State v. Johnson, 174 Or App 27, 25 P3d 353 (2001), Sup Ct review denied

Where person commits offense of aggravated murder based upon multiple theories, counts merge into single conviction with separate aggravating factors. State v. Walraven, 187 Or App 728, 69 P3d 835 (2003), Sup Ct review denied

Convictions for offense and true lesser included offense merge. State v. Sanders, 189 Or App 107, 74 P3d 1105 (2003), Sup Ct review denied

“Victims” refers to category of persons who are victims within meaning of specific substantive statute defining relevant offense. State v. Glaspey, 337 Or 558, 100 P3d 730 (2004)

State is not “victim” for purposes of statutory violation involving multiple victims. State v. Camarena-Velasco, 207 Or App 19, 139 P3d 979 (2006)

Since property owner is sole victim of first degree arson (ORS 164.325), multiple counts based on single act exposing multiple entities to risk of physical injury or other secondary consequences merge. State v. Luers, 211 Or App 34, 153 P3d 688 (2007), modified 213 Or App 389, 160 P3d 1013 (2007)

For purpose of determining whether burglary involved multiple victims, victim of burglary is person who owns violated property interest. State v. Sanchez-Alfonso, 224 Or App 556, 198 P3d 946 (2008), Sup Ct review denied

Evidence of distinct legislative concerns, alone, is not sufficient to establish legislature’s intent to create two crimes. State v. White, 346 Or 275, 211 P3d 248 (2009)

Sufficient pause means temporary or brief cessation of defendant’s criminal conduct that occurs between repeated violations and that has scope or quality that affords defendant opportunity to renounce criminal intent. State v. Huffman, 234 Or App 177, 227 P3d 1206 (2010)

Because the crime is one against public order, defendant commits only one act of resisting arrest when he or she resists multiple officers acting in concert to take defendant into custody. State v. Birchard, 251 Or App 223, 284 P3d 1153 (2012)

Where defendant is convicted of fourth-degree and second-degree assaults of same victim with no evidence of temporal pause between assaultive acts, guilty verdicts merge. State v. Glazier, 253 Or App 109, 288 P3d 1007 (2012), Sup Ct review denied

For purposes of determining joint ownership under this statute, any person whose right to possession of vehicle is superior to that of taker, obtainer or withholder of vehicle is victim of crime of unauthorized use of vehicle. State v. Haney, 256 Or App 506, 301 P3d 445 (2013)

Where defendant is convicted of second-degree sexual abuse under ORS 163.425 and third-degree sodomy under ORS 163.385, guilty verdicts merge under this section because victim’s minority age prevented victim from being able to consent and “does not consent” element of ORS 163.425 encompasses victim’s age element in ORS 163.385. State v. Pass, 264 Or App 583, 333 P3d 1139 (2014)

Where defendant was convicted of first-degree robbery under ORS 161.610 and 164.415 and second-degree robbery under ORS 161.610 and 164.405, and one count of second-degree robbery under ORS 164.405 included element that defendant was “aided by another person present” that count does not merge into others under this section because “another person” element is unique and requires proof that other elements do not. State v. Burris, 270 Or App 512, 348 P3d 338 (2015)

Where defendant was found guilty of witness tampering based on letter defendant sent to defendant’s mother encouraging mother and brother either to not testify against defendant or to change their stories, guilty verdicts merge under this section because, although witness tampering counts involved two different witnesses, state was only victim of witness tampering. State v. Jenkins, 280 Or App 691, 383 P3d 395 (2016), Sup Ct review denied

Where defendant was found guilty of witness tampering based on single letter defendant sent to defendant’s mother encouraging mother and brother either to not testify against defendant or to change their stories, guilty verdicts merge under this section because violations of two different paragraphs of ORS 162.285 do not constitute violations of separate statutory provisions. State v. Jenkins, 280 Or App 691, 383 P3d 395 (2016), Sup Ct review denied

Where defendant was convicted of two counts of sexual abuse in first degree and one count of sexual abuse in third degree involving three different body parts, separate acts constituted “same conduct.” State v. Nelson, 282 Or App 427, 386 P3d 73 (2016); State v. Dugan, 282 Or App 768, 387 P3d 439 (2016)

Where defendant committed three acts of sexual conduct constituting sexual abuse of one victim in confined space without interruption by significant event or pause in defendant’s aggression, there was no “sufficient pause” as used in this section. State v. Nelson, 282 Or App 427, 386 P3d 73 (2016)

Minor receiving marijuana is victim for purposes of crime of delivering marijuana to minor. State v. McMillin, 291 Or App 707, 422 P3d 270 (2018), Sup Ct review denied

Felony fourth-degree assault under ORS 163.160 and first-degree assault under ORS 163.185 each require proof of element that other crime does not, and trial court erred by merging guilt determinations based on same conduct. State v. Cazarez-Lopez, 295 Or App 349, 434 P3d 468 (2018), Sup Ct review denied

Merger applies in delinquency adjudications in same way as in determinations of guilt in criminal cases. In re K.R.S., 298 Or App 318, 449 P3d 511 (2019)

Because reckless driving under ORS 811.140 does not contain any element not required to prove reckless endangerment of highway workers under ORS 811.231, where charged counts are based on same conduct, guilty verdicts for two offenses merge. State v. Smythe, 298 Or App 821, 448 P3d 693 (2019)

Because defendant committed acts named in two counts in indictment against same victim in single criminal episode and acts were not separated by sufficient pause to allow defendant opportunity to renounce criminal intent, this section requires counts to be merged into single conviction of second-degree sexual abuse for purposes of sentencing. State v. Dearmitt, 299 Or App 22, 448 P3d 1163 (2019), aff’d 321 Or App 628, 517 P3d 368 (2022)

Where defendant’s conduct violates two separate statutory provisions -- identity theft and aggravated identity theft -- this section does not apply and lesser-included offenses of identity theft merge into aggravated identity theft. State v. Gensitskiy, 365 Or 263, 446 P3d 26 (2019)

Because proving elements of fourth-degree assault does not necessarily prove all elements of strangulation, charges for crimes do not merge. State v. Merrill, 303 Or App 107, 463 P3d 540 (2020), adhered to as modified on other grounds, 309 Or App 68, 481 P3d 441 (2021), Sup Ct review denied

Change in means of communication from text messages to voicemails does not demonstrate sufficient pause between acts to make acts separately punishable. State v. Zachery, 304 Or App 476, 467 P3d 827 (2020)

Thirty minutes between contacts by phone is sufficient pause between acts to make acts separately punishable. State v. Zachery, 304 Or App 476, 467 P3d 827 (2020)

Defendant’s imprecise and even mistaken shorthand reference to merger of sentences rather than merger of convictions was understood by court, had been used previously by courts and did not impede preservation of merger issue for appeal. State v. Rice, 307 Or App 274, 476 P3d 961 (2020)

Merger of convictions is permitted where defendant’s intervening conduct is intertwined with two counts sought to be merged, intervening conduct assists defendant in achieving overall criminal objective and there is no other evidence that one crime ended before other began. State v. Bradley, 307 Or App 374, 477 P3d 409 (2020), as modified by 309 Or App 598, 483 P3d 717 (2021)

Where defendant was charged with second-degree burglary under ORS 164.215, merger of convictions was not permitted for first-degree trespass under ORS 164.255, which requires proof of unlawful entry into “dwelling,” and conviction for second-degree burglary, which requires proof of unlawful entry into “building” with intent to commit crime, because each provision requires proof of element that other provision does not. State v. Jackson, 313 Or App 708, 495 P3d 171 (2021), Sup Ct review denied

Where defendant communicated online with police officer posing as child’s parent in sting operation, this section did not authorize entry of defendant’s separate convictions based on multiple victims, because victims were fictitious rather than actual children. State v. Street, 317 Or App 1, 505 P3d 425 (2022), Sup Ct review denied

Defendant’s intervening conduct between preceding and following acts of sexual abuse does not create “sufficient pause,” as used in this section, to preclude merger of convictions where there is no evidence that defendant’s intervening conduct was temporally or qualitatively distinct from defendant’s sexual abuse acts. State v. Moscote-Saavedra, 320 Or App 682, 514 P3d 1169 (2022)

Where defendant’s intervening conduct did not create sufficient pause because there was no evidence that intervening conduct was temporally or qualitatively distinct from defendant’s sexual abuse acts, court did not need to also decide how, if at all, intervening conduct was intertwined with defendant’s sexual abuse acts or how, if at all, defendant’s consistent goal of sexually abusing victim may affect sufficiency of pause. State v. Moscote-Saavedra, 320 Or App 682, 514 P3d 1169 (2022)

Because possession under ORS 475.894 and 475.854 does not require proof of element that is not also required to prove crime of delivery of controlled substance under ORS 475.890 and 475.850, crime of delivery cannot be committed without also committing crime of possession; thus, possession is subsumed in delivery and offenses must merge as matter of law; overruling State v. Sargent, 110 Or App 194, 822 P2d 726 (1991). State v. Serbin, 324 Or App 792, 527 P3d 794 (2023)

161.085 to 161.125

LAW REVIEW CITATIONS: 51 OLR 427, 437, 459 (1972); 29 WLR 829 (1993)

161.085

NOTES OF DECISIONS

One cannot “attempt” a crime involving an element of recklessness. State v. Smith, 21 Or App 270, 534 P2d 1180 (1975), Sup Ct review denied

Concepts of “intent” and “knowledge” are distinct and instruction worded in terms of “intent” should not be given in prosecution for crime where indictment alleges “knowledge.” State v. Francis, 284 Or 621, 588 P2d 611 (1978)

In trial for first degree rape, it was not error for court to fail to give defendant’s instruction on statutory definition of “knowingly” under this section where court did instruct jury on state’s burden of proof beyond reasonable doubt and on giving words not specifically defined in instructions their generally known and understood meanings. State v. Bunyea, 44 Or App 611, 606 P2d 685 (1980)

When combined with criminal negligence standard of this section, term “adequate physical care” in ORS 163.200 (criminal mistreatment in second degree) is not unconstitutionally vague. State v. Damofle/Quintana, 89 Or App 620, 750 P2d 518 (1988), Sup Ct review denied

Where defendant’s motive was not relevant to issue of whether he acted “with intent” to conspire to commit crime of burglary or “knowingly” in committing crime of burglary and theft under OEC 401, proffered evidence was not admissible as evidence of defendant’s state of mind. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

Trial court did not err in refusing to give requested jury instruction that defined “conscious” because term is understandable without elaboration. State v. McDonnell, 313 Or 478, 837 P2d 941 (1992)

Definition of “intentionally” also applies to intentional murder under ORS 163.115 and aggravated felony murder under ORS 163.095. State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Result or circumstance defining offense committed by person acting “recklessly” is specific to offense, therefore reckless action regarding one offense does not demonstrate reckless action regarding related offense. State v. Merideth, 149 Or App 164, 942 P2d 803 (1997), Sup Ct review denied

Speech is sufficient bodily movement to constitute “voluntary act” and thus is “conduct.” State v. Jessen, 162 Or App 662, 986 P2d 684 (1999), Sup Ct review denied

“Voluntary act” requires that defendant have ability to choose whether to take particular action. State v. Tippetts, 180 Or App 350, 43 P3d 455 (2002)

Whether defendant accused of acting recklessly was aware of and consciously disregarded circumstances existing at time of event is fact-specific inquiry for which general standards of care are irrelevant. State v. Curtiss, 193 Or App 348, 89 P3d 1262 (2004), Sup Ct review denied

For purpose of determining whether manner of driving constituted criminal negligence, standard of care reasonable person would observe is based on conditions actually existing at time. State v. Fruitts, 290 Or App 222, 414 P3d 881 (2018), Sup Ct review denied

For purpose of proving “knowingly” as mental state involving strangulation, showing must be made that defendant was acting with awareness that action was impeding breathing, not that action could have impeded breathing. State v. Tardie, 319 Or App 229, 509 P3d 705 (2022), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 463, 609, 616 (1972)

161.095

NOTES OF DECISIONS

This section does not address itself to whether conviction requires that the defendant know that what he does is illegal. State v. Wright, 21 Or App 659, 537 P2d 130 (1975)

Culpable mental state is required as to each material element of charge of being an ex-convict in possession of concealable firearm. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

“Voluntary act” requires that defendant have ability to choose whether to take particular action. State v. Tippetts, 180 Or App 350, 43 P3d 455 (2002)

Where fact that determines offense subcategory is not described in statute, fact is not element of offense to which statutory culpable mental state applies. State v. Travalini, 215 Or App 226, 168 P3d 1159 (2007), Sup Ct review denied

In determining whether element of controlled substance statute (ORS 475.904) required culpable mental state, relevant considerations included legislative intent in enacting statute, grammatical structure of statutory text and nature of element in question. State v. Rutley, 343 Or 368, 171 P3d 361 (2007)

Minimal voluntary act requirement of section applies to driving element of DUII. State v. Newman, 353 Or 632, 302 P3d 435 (2013)

LAW REVIEW CITATIONS: 50 WLR 291 (2014)

161.105

NOTES OF DECISIONS

Proof of culpable mental state was not required for conviction of defendant for sale of unregistered security pursuant to ORS 59.005, and thus imposition of suspended 5-year prison term and fine of $5,000 exceeded maximum permissible under this section. State v. Pierre, 30 Or App 81, 566 P2d 534 (1977)

Section is not prospective, but is applicable to laws passed prior to January 1, 1972. State v. Pierre, 30 Or App 81, 566 P2d 534 (1977)

Negligent wounding of another pursuant to ORS 166.180 is outside Criminal Code but clearly intends proof of culpable mental state. State v. Orth, 35 Or App 235, 581 P2d 953 (1978)

Offense of wrecker failing to have proper evidence of motor vehicle ownership, as defined by [former] ORS 481.360 (2) and [former] ORS 481.990 (1) is not strict liability crime under this section. State v. Eyerly, 37 Or App 399, 587 P2d 1039 (1978)

Whether culpable mental state is implicit in offense may be determined from nature of proscribed conduct and resulting penalty. State v. Wolfe, 288 Or 521, 605 P2d 1185 (1980); State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

Where defendant was found guilty of Hit and Run, a traffic violation, and had been convicted within five years of DUII, trial court had authority to impose jail sentence for misdemeanor under [former] ORS 484.365; existence of prior conviction, not culpable mental state, raises offense to misdemeanor. State v. Plummer, 53 Or App 240, 631 P2d 819 (1981)

When a statute clearly indicates neither an intent to dispense with culpable mental state nor clearly indicates an intent to create strict liability crime, offense under such statute is a “violation” which, in prosecutor’s discretion, can be upgraded to misdemeanor by pleading and proving culpable mental state. McNutt v. State, 295 Or 580, 668 P2d 1201 (1983)

Being under influence of intoxicant is strict liability element of driving under the influence of intoxicants and no proof is required of culpable mental state. State v. Miller, 309 Or 362, 788 P2d 974 (1990)

Factors for determining whether element of offense requires culpable mental state are: (1) text of the statute that defines offense; (2) whether nature of element pertains to defendant’s conduct; (3) legislative history of statute that defines offense; and (4) whether requiring culpable mental state for particular element would frustrate purpose of statute. State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011)

Unlawful possession of methamphetamine pursuant to ORS 475.894 is outside Criminal Code; however, because that statute requires that person must act with knowledge or intent as to possession of methamphetamine, which is only conduct that statute addresses, statute does not clearly indicate legislative intent to dispense with mental state requirement as it pertains to possession of prohibited substance. State v. Harper, 296 Or App 125, 436 P3d 44 (2019)

LAW REVIEW CITATIONS: 13 WLJ 372 (1977)

161.115

NOTES OF DECISIONS

“Element . . . that necessarily requires culpable mental state” refers to element defining substance or quality of forbidden conduct, not to such elements as venue, jurisdiction or statute of limitations. State v. Blanton, 284 Or 591, 588 P2d 28 (1978)

Since [former] ORS 541.615, which is outside the Criminal Code, does not indicate intent to dispense with culpable mental state or create strict liability crime, this section requires a culpable mental state for violation of that section. McNutt v. State of Oregon, 56 Or App 545, 642 P2d 692 (1982), aff’d 295 Or 580, 668 P2d 1201 (1983)

Complaint alleging defendant “did unlawfully and knowingly agree to pay a fee to engage in sexual conduct” was not defective for failing to allege defendant “intentionally” agreed to pay fee. State v. Huie, 292 Or 335, 638 P2d 480 (1982)

If defendant actually and reasonably believed compliance with ORS 811.700 was literally impossible, she would not have had required culpable mental states and failure to give requested jury instruction prejudiced defendant. State v. Monroe, 101 Or App 379, 790 P2d 1188 (1990)

All elements of criminal offense other than venue, statute of limitation and similar elements necessarily require culpable mental state, regardless of whether statute provides explicit mental state, but presumption that statute’s explicit mental state applies to each material element may be rebutted. State v. Prophet, 318 Or App 330, 507 P3d 735 (2022), Sup Ct review denied

161.125

NOTES OF DECISIONS

Under former similar statute (ORS 136.400)

Where intoxication was pleaded only to negative specific intent, it did not have to be proved by preponderance of evidence. State v. Smith, 260 Or 349, 490 P2d 1262 (1971)

It was not necessary to show that intoxication produced “diseased” mind or insanity to negative specific intent. State v. Smith, 260 Or 349, 490 P2d 1262 (1971)

In general

Where defendant denied he was intoxicated, evidence that he had been drinking, without more specific information as to amount, time and effect, was insufficient to raise an issue of intoxication. State v. Oliver, 13 Or App 324, 509 P2d 41 (1973)

Absence of statutory word “negative” in jury instructions with reference to defense of voluntary intoxication was not error. State v. Henson, 23 Or App 234, 541 P2d 1085 (1975)

Voluntary intoxication “as such” means voluntary intoxication by itself. State v. Peverieri, 192 Or App 229, 84 P3d 1125 (2004), Sup Ct review denied

“Element of the crime charged” refers to component of state’s prima facie case, not component of defense. State v. Bassett, 234 Or App 259, 228 P3d 590 (2010), Sup Ct review denied

161.150

ATTY. GEN. OPINIONS: Illegality of licensee approving plans prepared by one not an employe or licensed, (1972) Vol 35, p 1173

161.155

NOTES OF DECISIONS

Defendant aided and abetted within the meaning of this section where he continued to aid accomplice in the commission of a cafe burglary after accomplice used deadly weapon despite protests by defendant. State v. Hightower, 17 Or App 112, 520 P2d 470 (1974)

Aiding and abetting includes advising, counseling, procuring or encouraging another in the commission of a crime. State v. Smith, 18 Or App 39, 523 P2d 1048 (1974)

Where defendant and others unlawfully occupied farm shed of another, defendant was liable for acts of his co-offenders. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Where defendant, indicted for perpetrating criminal acts of first degree rape and first degree sodomy, challenged jury instruction which allowed jury to find defendant guilty of charges if it found that defendant aided and abetted commission of those criminal acts, such instruction was proper. State v. LeBrun, 37 Or App 411, 587 P2d 1044 (1978), Sup Ct review denied

Where, although there was no direct evidence of collusion, there was sufficient circumstantial evidence to support inference that defendant and other had acted in concert in killing victim in their actions both before and after crime, there was sufficient circumstantial evidence of collusion to support instruction on aiding and abetting. State v. Moriarty, 87 Or App 465, 742 P2d 704 (1987), Sup Ct review denied

Evidence that defendant met with other person on day before property was stolen, knew other person’s reputation for “wheeling and dealing” and asked other person to sell him VCR and color television “used” at cheap price, did not establish command or solicitation to commit crime. State v. Cheney, 92 Or App 633, 759 P2d 1119 (1988)

Where arrested defendant’s thrashing about was intended to assist others in resisting her arrest, it was not error for trial court to deny defendant’s motion for judgment of acquittal on resisting arrest charge. State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988)

Acquiescence alone is not sufficient to constitute aiding and abetting. State ex rel Juv. Dept. v. Holloway, 102 Or App 553, 795 P2d 589 (1990); State v. Anlauf, 164 Or App 672, 995 P2d 547 (2000)

Defendant aided and abetted sexual assault when defendant and co-defendant dragged victim into room, defendant had opportunity to observe co-defendant “going up” shirt of victim, defendant invited others into room, individuals invited into room yelled and victim screamed. State ex rel Juv. Dept. v. Arevalo, 117 Or App 505, 844 P2d 928 (1992), Sup Ct review denied

When defendant told undercover police officer to “see that guy” about buying cocaine, rational trier of fact could find defendant aided or abetted crime of delivering cocaine. State v. Bargas-Perez, 117 Or App 510, 844 P2d 931 (1992)

Where coconspirator commits separate crime during course of common criminal episode, defendant’s participation in common criminal episode does not by itself establish that defendant was aider and abettor in commission of separate crime. State v. Anlauf, 164 Or App 672, 995 P2d 547 (2000)

Defendant indicted as principal in crime may be convicted under aid and abet theory without state pleading defendant’s intent to promote or facilitate crime. State v. Burney, 191 Or App 227, 82 P3d 164 (2003), Sup Ct review denied

Criminal liability of defendant for acts of another is limited to acts defendant intended to promote or facilitate. State v. Lopez-Minjarez, 236 Or App 270, 237 P3d 223 (2010), aff’d 350 Or 576, 260 P3d 439 (2011)

Person cannot be held liable for aiding and abetting based solely on conduct that occurs after commission of predicate offense. State v. Wilson, 240 Or App 475, 248 P3d 10 (2011)

ATTY. GEN. OPINIONS: Illegality of licensee approving plans prepared by one not an employe or licensed, (1972) Vol 35, p 1173; criminal liability of licensed nurse for conduct of person practicing nursing who is not licensed and has not completed board-approved training program, (1980) Vol 41, p 166

161.165

NOTES OF DECISIONS

Exclusion of person from criminal liability where crime defines conduct of person as necessarily incidental to crime is not limited to victim-like persons or persons not actively seeking to participate in crime. State v. Merida-Medina, 221 Or App 614, 191 P3d 708 (2008), Sup Ct review denied

161.170

NOTES OF DECISIONS

An indictment of a corporation need not name the agents or officers of the corporation performing the illegal acts. State v. Ore. City Elks Lodge No. 1189, 17 Or App 86, 520 P2d 900 (1974), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 587-595 (1972)

161.175

LAW REVIEW CITATIONS: 51 OLR 593 (1972)

161.190 to 161.265

NOTES OF DECISIONS

Under former similar statute (ORS 163.110)

There were cases where self-defense would not be a defense but the right to self-defense was still available to establish that the defendant was engaged in a lawful act at the time of the killing. State v. Leos, 7 Or App 211, 490 P2d 521 (1971)

161.190

NOTES OF DECISIONS

Under justification defense, threat to apply physical force, as well as physical force itself, may be allowed. State v. Lockwood, 43 Or App 639, 603 P2d 1231 (1979)

161.195

LAW REVIEW CITATIONS: 50 WLR 291 (2014)

161.200

NOTES OF DECISIONS

Trial court properly granted pretrial motion preventing defendant, charged with escape in third degree from custody of probation officer, from presenting evidence for purpose of choice-of-evils defense that defendant escaped in order to avoid being returned to county jail where he had been beaten by other prisoners and forced to commit oral sodomy. State v. Whisman, 33 Or App 147, 575 P2d 1005 (1978)

Rationale of case law that duress under ORS 161.270 requires danger to be present, imminent and impending is equally applicable to choice of evils. State v. Whisman, 33 Or App 147, 575 P2d 1005 (1978)

Under evidence that defendant put companion’s gun in her purse because she was afraid that in his disturbed state of mind he might use it when he returned to restaurant, defendant was entitled to jury instruction on “choice-of-evils” defense. State v. Lawson, 37 Or App 739, 588 P2d 110 (1978)

Choice-of-evils defense is available to defendant charged with being ex-convict in possession of firearm. State v. Burney, 49 Or App 529, 619 P2d 1336 (1980)

Where defendant, charged with eluding police officer, was allegedly seeking to avoid assault by police officer and further delay in returning to care for his mother, trial court’s refusal to instruct on necessity was error. State v. Matthews, 30 Or App 1133, 569 P2d 662 (1977)

Choice-of-evils defense is not available in prosecutions for driving while revoked in violation of [former] ORS 484.740. State v. Neubauer, 68 Or App 885, 683 P2d 136 (1984)

Defendant may justify otherwise criminal act by showing it was “necessary as an emergency measure to avoid an imminent public or private injury.” State v. Olson, 79 Or App 302, 719 P2d 55 (1986)

Choice-of-evils defense is not limited to actions taken to protect life, but also may be invoked by defendant who has acted unlawfully in order to protect property. State v. Webber, 85 Or App 347, 736 P2d 220 (1987), Sup Ct review denied

Where evidence included graphic photographic evidence of research practices and abuses and graphic videotaped documentaries, trial court did not abuse its discretion in ruling on admissibility of evidence before trial. State v. Troen, 100 Or App 442, 786 P2d 751 (1990), Sup Ct review denied

Activity that is lawful and nontortious is not imminent public or private injury as required for choice-of-evils defense. State v. Clowes, 310 Or 686, 801 P2d 789 (1990)

Choice-of-evils defense is “inconsistent with . . . other provision of law” where legislature has deliberately made contrary value choice. State v. Clowes, 310 Or 686, 801 P2d 789 (1990); State v. Ownbey, 165 Or App 132, 996 P2d 510 (2000), on reconsideration 168 Or App 525, 7 P3d 653 (2000), Sup Ct review denied

Choice-of-evils defense could not exonerate defendants charged with contempt for violating injunction arising from demonstration to prevent abortions because defense is available only if defendants’ necessary conduct is not inconsistent with other provisions of law. Downtown Women’s Center v. Advocates for Life, Inc., 111 Or App 317, 826 P2d 637 (1992)

Where threat of injury, if there was one, existed on day defendant was scheduled to appear in court and was conditioned on what he might do on that date, threat was “imminent.” State v. Boldt, 116 Or App 480, 841 P2d 1196 (1992)

To establish choice-of-evils defense requires evidence sufficient to show: 1) defendant’s conduct was necessary to avoid threatened injury; 2) threatened injury was imminent; and 3) it was reasonable for defendant to believe need to avoid threatened injury was greater than need to avoid potential injury from illegal conduct. State v. Boldt, 116 Or App 480, 841 P2d 1196 (1992); State v. Miles, 197 Or App 86, 104 P3d 604 (2005), Sup Ct review denied

Where defendant’s post-traumatic stress disorder (PTSD) was triggered by diesel fumes and truck noises, court correctly excluded evidence about defendant’s PTSD as irrelevant because defendant’s threatened injury under choice-of-evils defense from fumes and noises must be judged from objective perspective of reasonable person, not from defendant’s subjective perspective. State v. Dart, 312 Or App 288, 491 P3d 813 (2021), Sup Ct review denied

161.205

NOTES OF DECISIONS

Generally, existence of statutory defense to criminal prosecution does not necessarily mean that civil liability can be avoided as well. Hatfield v. Gracen, 279 Or 303, 567 P2d 546 (1977)

Where arrest is made with excessive force, arrestee may use reasonable physical force in self-defense against excessive force being used by arresting officer. State v. Wright, 310 Or 430, 799 P2d 642 (1990)

LAW REVIEW CITATIONS: 19 WLR 166 (1983)

161.209

NOTES OF DECISIONS

This section is not inconsistent with ORS 161.260, prohibiting use of physical force in resisting arrest, and rule is that person is not justified in forcibly resisting unless and until he is faced with illegal use by officer of deadly force. State v. Hall, 36 Or App 133, 583 P2d 587 (1978)

In prosecution for menacing, under evidence, inter alia, that defendant knew of earlier confrontation, that defendant had been past victim of vandalism, that juveniles had driven by house and sped away three times before parking in driveway, defendant was entitled to instruction on theory that he acted in self-defense. State v. Lockwood, 43 Or App 639, 603 P2d 1231 (1979)

It was prejudicial error to exclude testimony showing defendant’s awareness of husband’s violent temper and previous violence against wife, because evidence was relevant to whether defendant could have reasonably believed that husband was about to subject wife to “abuse or imminent use of unlawful physical force.” State v. Wheeler, 43 Or App 875, 604 P2d 449 (1979)

Trial court did not err in failing to give defendant’s requested jury instruction that individual has unqualified right to resist arrest, if arrest is made with excessive force. State v. Wright, 310 Or 430, 799 P2d 642 (1990)

Even when one or more of threatening circumstances described in ORS 161.219 is present, use of deadly force is justified only if it does not exceed “degree of force which person reasonably believes to be necessary.” State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

When defendant testified that weapon discharged by accident, trial court did not err by not giving self-defense instruction to jury. State v. Stalder, 117 Or App 289, 844 P2d 225 (1992)

Where defendant maintained at trial that defendant did not intend to injure victim of assault, trial court was justified in not giving self-defense instruction since no evidence supported theory of self-defense. State v. Boyce, 120 Or App 299, 852 P2d 276 (1993)

Spitting in someone’s face is physical act that could support finding that one is “initial aggressor,” thus limiting availability of self-defense justification and supporting jury instruction with “initial aggressor” limitation. State v. Phillips, 313 Or App 1, 493 P3d 548 (2021), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 579-587 (1972)

161.215

NOTES OF DECISIONS

Application of limitations of this section on claim of self-defense depends on facts of each case and because defendant has no burden to disprove limitations, defendant’s instruction on self-defense was not incomplete in failing to include limitations of this section. State v. Freeman, 109 Or App 472, 820 P2d 37 (1991)

Where defendant was initial aggressor and withdrew before victim reengaged, defendant’s self-defense justification is based upon defendant’s reasonable belief of victim’s “imminent use of unlawful physical force” under ORS 161.209; whether victim’s use of force was lawful or victim believed force was justified is irrelevant. State v. Bock, 310 Or App 329, 485 P3d 931 (2021)

LAW REVIEW CITATIONS: 51 OLR 579-587 (1972)

161.219

NOTES OF DECISIONS

Since the legislature’s intention in enacting this section and ORS 161.225 (2) was to codify the common law of self-defense and not to articulate a new standard, the statutory phrases requiring that there be a “felony involving the use or threatened imminent use of physical force against a person,” “unlawful deadly physical force,” or a “felony by force and violence” are the functional equivalents of the case law requirement of “great bodily harm.” State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Defendant is entitled to a jury instruction on self-defense under either this section or ORS 161.225 (2) if there is evidence in the record that he was in imminent danger of receiving great bodily harm from the other person. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

The fact that defendant produced and threatened to use a firearm in an attempt to terminate a criminal trespass did not deprive him of the right to claim self-defense under this section for the actual use of the firearm which occurred subsequently. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Self-defense is founded on necessity and, where defendant could avoid threatened danger without sacrificing own safety, he was required to do so; refusal to give instruction that person claiming right of self-defense is not required to retreat before using deadly physical force against assailant was not error. State v. Charles, 293 Or 273, 647 P2d 897 (1982). But see State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

Duty to retreat imposed under this section does not extend to police officers performing their official function. Reed v. Hoy, 891 F2d 1421 (9th Cir 1989)

Even when one or more of threatening circumstances described in this statute is present, use of deadly force is justified only if it does not exceed “degree of force which person reasonably believes to be necessary” under ORS 161.209. State v. Haro, 117 Or App 147, 843 P2d 966 (1992), Sup Ct review denied

Person is not required to retreat before using deadly physical force to defend against imminent use of deadly physical force by another. State v. Sandoval, 342 Or 506, 156 P3d 60 (2007)

LAW REVIEW CITATIONS: 51 OLR 579-587 (1972)

161.225

NOTES OF DECISIONS

Since the legislature’s intention in enacting this section and ORS 161.219 was to codify the common law of self-defense and not to articulate a new standard, the statutory phrases requiring that there be a “felony involving the use or threatened imminent use of physical force against a person,” “unlawful deadly physical force,” or a “felony by force and violence” are the functional equivalents of the case law requirement of “great bodily harm.” State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

Defendant is entitled to a jury instruction on self-defense under either this section or ORS 161.219 if there is evidence in the record that he was in imminent danger of receiving great bodily harm from the other person. State v. Burns, 15 Or App 552, 516 P2d 748 (1973), Sup Ct review denied

In prosecution for menacing, under evidence, inter alia, that defendant knew of earlier confrontation, defendant had been past victim of vandalism, that juveniles had driven by house and sped away three times before parking in driveway, defendant was entitled to instruction on theory that he acted in defense of his premises. State v. Lockwood, 43 Or App 639, 603 P2d 1231 (1979)

LAW REVIEW CITATIONS: 21 EL 219 (1991)

161.229

NOTES OF DECISIONS

In prosecution for menacing, under evidence, inter alia, that defendant knew of earlier confrontation, that defendant had been past victim of vandalism, that juveniles had driven by house and sped away three times before parking in driveway, defendant was entitled to instruction on theory that he acted in defense of his property. State v. Lockwood, 43 Or App 639, 603 P2d 1231 (1979)

LAW REVIEW CITATIONS: 21 EL 219 (1991)

161.235

NOTE: Repealed as of January 1, 2021

LAW REVIEW CITATIONS: 50 WLR 291 (2014)

161.260

NOTES OF DECISIONS

Notwithstanding that stop of defendant was unlawful under ORS 131.615, evidence that defendant subsequently shoved officer with hands and fists during patdown search and damaged interior of police vehicle was not inadmissible. State v. Gaffney, 36 Or App 105, 583 P2d 582 (1978), Sup Ct review denied

This section is not inconsistent with ORS 161.209, concerning use of physical force in defense of person, because person is not justified in forcibly resisting unless and until he is faced with illegal use by officer of deadly force. State v. Hall, 36 Or App 133, 583 P2d 587 (1978)

161.270

NOTES OF DECISIONS

“Duress” requires that danger must be “present, imminent, and impending.” State v. Fitzgerald, 14 Or App 361, 513 P2d 817 (1973); State v. Boldt, 116 Or App 480, 841 P2d 1196 (1992)

Under evidence that defendant, convicted of armed robbery, had several opportunities to escape, he could not object to jury instruction stating that duress is not available as defense if person intentionally or recklessly placed himself in duress situation. State v. Fowler, 37 Or App 299, 587 P2d 104 (1978)

“Earnest resistance” is generalized standard not measured by defendant’s submissiveness or other individual personality traits. State v. VanNatta, 149 Or App 587, 945 P2d 1062 (1997), Sup Ct review denied

161.275

NOTES OF DECISIONS

Generally the government does not have a duty to “produce” an informer. State v. Elliott, 24 Or App 471, 546 P2d 766 (1976), aff’d 276 Or 99, 553 P2d 1058 (1976)

Under this section, defendant is not required to admit criminal act in order to raise entrapment defense. State v. McBride, 287 Or 315, 599 P2d 449 (1979)

Whether what defendant contemplated was near enough in kind to support inference that defendant’s purpose included offenses of sort charged and whether defendant readily accepted decoy’s offer to commit offense both relevant to determination of whether defendant was “induced” under section. State v. McDaniel, 251 Or App 345, 283 P3d 414 (2012), Sup Ct review denied

161.290 to 161.370

LAW REVIEW CITATIONS: 51 OLR 428 (1972); 52 OLR 285-295 (1973)

161.290

NOTES OF DECISIONS

Defense of incapacity due to immaturity set forth in this section is not applicable in juvenile proceeding under [former] ORS 419.476. State ex rel Juv. Dept. v. Wicks, 97 Or App 390, 776 P2d 582 (1989)

161.295

NOTES OF DECISIONS

Evidence of insanity can be so substantial that the matter should be withdrawn from the trier of fact and decided favorably to the defendant by the trial judge as a matter of law. State v. Sands, 10 Or App 438, 499 P2d 821 (1972)

The new insanity test as set out in this section does not require absolute knowledge of the difference between right and wrong, only a substantial incapacity to appreciate criminal conduct. State v. Dyer, 16 Or App 247, 514 P2d 363, 518 P2d 184 (1973)

The first element of the responsibility standard established by this section is the functional equivalent of Oregon’s former test. State v. Dyer, 16 Or App 247, 514 P2d 363, 518 P2d 184 (1973)

It is not necessary in the instruction to the jury, for the trial judge to explain or define the psychiatric concepts of intellectual and emotional knowledge. State v. DePue, 18 Or App 158, 524 P2d 562 (1974), Sup Ct review denied

Although this section altered the “M’Naughten Rule,” it is still true as indicated in former cases that the line of demarcation between sanity and insanity is so indistinct, in some instances, that it is difficult accurately to be determined even by a physician. State v. Matthews, 20 Or App 466, 532 P2d 250 (1975)

A defendant’s due process rights are not violated by having to bear the burden of persuasion on the issue of insanity. State v. Dodson, 25 Or App 859, 551 P2d 484 (1976)

Where the evidence provides a reasonable basis for a finding that a continuing course of criminal conduct is divisible, a conviction for the initially committed offense is permissible even though a defendant may thereafter by reason of mental disease or defect lack the capacity to commit the remaining crime or crimes committed in the single uninterrupted sequence. State v. Rainwater, 26 Or App 593, 553 P2d 1085 (1976)

The defendant raising the defense of mental disease or defect was not entitled to a bifurcated trial, with separate factfinders on the issues of guilt and responsibility, in order to preserve his privilege against self-incrimination and right to a fair trial. State ex rel Johnson v. Dale, 277 Or 359, 560 P2d 650 (1977)

When mental condition of defendant is at issue, the history on which expert relies in making diagnosis is generally admissible in evidence. State v. Goss, 33 Or App 507, 577 P2d 78 (1978)

Where indigent defendant was provided witness fees to insure testimony of out-of-state psychiatrist who had examined him, denial of his motion for appointment of an additional psychiatrist was not violation of constitutional due process. State v. Glover, 33 Or App 553, 577 P2d 91 (1978)

This section is intended to exclude sociopaths from using mental disease or defect defense. State v. Massey, 34 Or App 95, 577 P2d 1364 (1978), Sup Ct review denied

Condition that would make one “mentally ill person” for purposes of hospitalization does not necessarily relieve one of criminal responsibility under this section. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

Presumption that “a thing once proved to exist continues as long as is usual with things of that nature” applies only to factual condition established in prior adjudication, and defendant, who had been previously committed as “mentally ill” was not entitled to instruction on presumption phrase in terms of insanity. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

Evidence of drug dependence alone was not sufficient evidence of “mental disease or defect” to justify giving instruction to that effect under this section. State v. Herrera, 286 Or 349, 594 P2d 823 (1979)

In case where defendant asserted affirmative mental disease or defect, giving weaker and less satisfactory instruction pursuant to ORS 10.095 did not impermissibly shift burden of proof to defendant. State v. Mains, 295 Or 640, 669 P2d 1112 (1983)

1983 amendment to this section which excludes personality disorders from terms “mental disease or defect” was not intended to withdraw Psychiatric Security Review Board’s jurisdiction over persons committed on basis of personality disorder prior to effective date of amendment. Baldwin v. PSRB, 97 Or App 367, 776 P2d 577 (1989)

Even assuming pedophilia is personality disorder, petitioner who was committed to Psychiatric Security Review Board’s jurisdiction in 1982 is not entitled to release under provisions of this section which exclude personality disorders as basis for exoneration from criminal responsibility but which did not take effect until 1984. Hamilton v. PSRB, 97 Or App 388, 776 P2d 581 (1989)

Defense under this section is available to person charged with driving under influence of intoxicants or driving while suspended. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

Affirmative defense under this provision and affirmative defense of extreme emotional disturbance under ORS 163.135 are not mutually exclusive. State v. Counts, 311 Or 616, 816 P2d 1157 (1991)

Amendment to this section by chapter 800, Oregon Laws 1983, that excludes any abnormality constituting solely personality disorder from definition of “mental disease or defect” does not apply when determining whether person who committed offense prior to January 1, 1984, continues to suffer from mental disease or defect. Strecker v. PSRB, 120 Or App 178, 851 P2d 1151 (1993)

Activity is not excluded from definition of mental disease or defect as abnormality evidenced solely by repeated criminal or otherwise antisocial conduct if activity has mental or psychological features. Osborn v. Psychiatric Security Review Board, 325 Or 135, 934 P2d 391 (1997)

Verdict of guilty except for insanity requires same number of concurring jurors as other guilty verdicts. State v. Reese, 156 Or App 406, 967 P2d 514 (1998)

“Personality disorder” includes sexual conduct disorders, alcohol dependency and drug dependency. Beiswenger v. Psychiatric Security Review Board, 192 Or App 38, 84 P3d 180 (2004), Sup Ct review denied

Lack of substantial capacity as “result of mental disease or defect” does not include lack of capacity resulting from combination of mental disease or defect with other factors such as voluntary intoxication. State v. Peverieri, 192 Or App 229, 84 P3d 1125 (2004), Sup Ct review denied

Substance dependency is personality disorder, not mental disease or defect. Tharp v. Psychiatric Security Review Board, 338 Or 413, 110 P3d 103 (2005)

Alcohol dependency is personality disorder, not mental disease or defect. Ashcroft v. Psychiatric Security Review Board, 338 Or 448, 111 P3d 1117 (2005)

Defendant’s “persistent auditory hallucinations” and “delusional beliefs” alone do not imply substantial lack of capacity to appreciate criminality of conduct or inability to conform conduct to laws sufficient for jury instruction on guilty except for insanity defense. State v. Shields, 289 Or App 44, 407 P3d 940 (2017), Sup Ct review denied

For purposes of this section, transitory, episodic, drug-induced psychosis is personality disorder, not mental disease or defect. State v. Folks, 290 Or App 94, 414 P3d 468 (2018), Sup Ct review denied

Pedophilic disorder is personality disorder, not mental disease or defect. Rinne v. Psychiatric Security Review Board, 297 Or App 549, 443 P3d 731 (2019)

To establish guilty except for insanity defense, defendant was not required to prove that co-occurring personality disorder played no causal role in bringing about requisite lack of substantial capacity. State v. Meiser, 369 Or 347, 506 P3d 402 (2022)

On remand, guilty except for insanity defense requires showing that mental disease or defect was sufficient by itself to bring about lack of capacity to appreciate criminality of conduct or to conform conduct to law at time in which conduct was engaged. State v. Meiser, 323 Or App 674, 524 P3d 130 (2023), Sup Ct review allowed

ATTY. GEN. OPINIONS: Right of mentally diseased person to vote, (1972) Vol 35, p 1220

LAW REVIEW CITATIONS: 51 OLR 437-458, 479 (1972); 52 OLR 285-295 (1973); 54 OLR 409-411 (1975); 14 WLJ 313 (1978); 20 WLR 303 (1984); 71 OLR 205 (1992); 29 WLR 829 (1993); 22 LCLR 1028 (2018)

161.300

NOTES OF DECISIONS

Although defendant was entitled under this section to introduce evidence of partial responsibility, court was not required to instruct jury on partial responsibility doctrine where general instruction was given on elements of crime charged. State v. Booth, 30 Or App 351, 567 P2d 559 (1977), aff’d 284 Or 615, 588 P2d 614 (1978)

Instruction concerning defense of mental disease or defect, which had effect of placing burden of proof of entire defense on defendant, was erroneous. State v. Umscheid, 31 Or App 1249, 572 P2d 362 (1977)

Under this section, partial responsibility defense is available whether or not crime charged includes lesser offense; if lesser offense is available, successful partial responsibility defense may reduce crime to lesser offense; if there is no lesser included offense, successful partial responsibility defense will result in acquittal. State v. Booth, 284 Or 615, 588 P2d 614 (1978)

Court did not err in excluding “partial responsibility” evidence, under this section, when evidence was in fact admitted to prove insanity. State v. Francis, 284 Or 621, 588 P2d 611 (1978)

Where defendant, convicted of murder, requested instruction on “partial responsibility” defense as to ORS 163.118 or 163.125 (manslaughter), proof of intent was not required for conviction of lesser included manslaughter offenses and requested instruction was properly refused. State v. Armstrong, 38 Or App 219, 589 P2d 1174 (1979), Sup Ct review denied

Partial responsibility defense is available for crimes having “knowing” mental state as required element. State v. Smith, 154 Or App 37, 960 P2d 877 (1998)

“Intent which is an element of the crime” includes mental state of recklessness. State v. Nebert, 244 Or App 80, 260 P3d 559 (2011)

LAW REVIEW CITATIONS: 51 OLR 475, 477, 478 (1972); 13 WLJ 347 (1977); 14 WLJ 313 (1978); 29 WLR 829 (1993)

161.305

NOTES OF DECISIONS

Instruction concerning defense of mental disease of defect, which had effect of placing burden of proof of entire defense on defendant, was erroneous. State v. Umscheid, 31 Or App 1249, 572 P2d 362 (1977)

Instruction on partial responsibility is no longer appropriate. State v. Umscheid, 31 Or App 1249, 572 P2d 362 (1977)

This section is unconstitutional in so far as it places the burden of proving partial responsibility or diminished intent on the defendant. State v. Stockett, 278 Or 637, 565 P2d 739 (1977)

Under evidence of intoxication and extreme emotional disturbance, from which jury could conclude defendant did not possess requisite intent to commit intentional murder, instruction concerning presumption of unlawful intent arising from an unlawful act constituted unconstitutional shifting of burden of proof of intent to defendant. State v. Anderson, 33 Or App 43, 575 P2d 677 (1978)

Where defendant, charged with and convicted of murder, requested instruction on “partial responsibility” defense as to ORS 163.118 or 163.125 (manslaughter), proof of intent was not required for conviction of lesser included manslaughter offenses and requested instruction was properly refused. State v. Armstrong, 38 Or App 219, 589 P2d 1174 (1979), Sup Ct review denied

Court is not authorized to impose verdict of guilty except for insanity where insanity is not asserted as affirmative defense by represented defendant. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984); State v. Bozman, 145 Or App 66, 929 P2d 1019 (1996)

161.309

NOTES OF DECISIONS

Criminal defendant who shows just cause for not filing notice of intent to present insanity defense at time of plea may file notice at any time before trial, and need not file notice as soon as possible. State v. Robinson, 288 Or App 194; 406 P3d 200 (2017)

Evidence of mental illness offered by caseworker of defendant to show defendant lacked required mental state not “expert testimony” requiring prior notice. State v. Bales, 289 Or App 470, 410 P3d 1088 (2017)

161.313

NOTES OF DECISIONS

Jury instruction on consequences of guilty except for insanity verdict does not deny defendant’s right to impartial jury. State v. Amini, 331 Or 384, 15 P3d 541 (2000)

Instructing jury on consequences of guilty except for insanity verdict does not deprive defendant of federal constitutional right to fair trial. State v. Amini, 175 Or App 370, 28 P3d 1204 (2001), Sup Ct review denied

Requirement that court instruct jury “in accordance with ORS 161.327” does not require that instruction include full explanation of all parts of ORS 161.327. State v. George, 337 Or 329, 97 P3d 656 (2004)

161.315

NOTES OF DECISIONS

This section is basically a codification of the holding in State v. Phillips, 245 Or 466, 422 P2d 670 (1967), and it gives the defendant the right to object to the psychiatrist chosen by the state. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A psychiatrist examining the defendant for the state is an officer of the state when questioning defendant. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A defendant may waive his Fifth Amendment privilege against self-incrimination and consent to a psychiatric examination. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A valid consent to a psychiatric examination may not be obtained unless the defendant has been given a Miranda warning to the effect that his rights apply to the psychiatric examination and unless the defendant has knowingly and voluntarily waived those rights enumerated in Miranda. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

The defendant should be required to answer questions not pertaining to the commission of the crime and if the defendant continues to refuse, the affirmative defense of mental defect will be stricken. State ex rel Johnson v. Richardson, 276 Or 325, 555 P2d 202 (1976)

Order issued pursuant to this section, requiring defendant to submit to psychiatric examination, was modified to strike provision which directed defendant’s counsel not to advise defendant to not answer any question which did not come within specific limitations, but order was not required to provide procedures for immediate rulings on objections to questions asked during examination. State ex rel Ott v. Cushing, 289 Or 705, 617 P2d 610 (1980)

Once notice of intent to rely on defense is given, state has unequivocal right to conduct multiple psychiatric examinations of defendant. State v. Moore, 324 Or 396, 927 P2d 1073 (1996); State v. Fulmer, 229 Or App 386, 211 P3d 942 (2009), Sup Ct review denied

161.325 to 161.351

NOTES OF DECISIONS

Under former version of these sections, Psychiatric Security Review Board could, at initial dispositional hearing, order only commitment to mental hospital or conditional release, so it had no authority to make independent redetermination of dangerousness of defendant or to order her discharged on basis of such redetermination. Adams v. Psychiatric Security Review Bd., 290 Or 273, 621 P2d 572 (1980)

LAW REVIEW CITATIONS: 18 WLR 23 (1982)

161.325

NOTES OF DECISIONS

Since dispositional hearing under former version of this section was final stage in criminal proceeding which had determined that accused was mentally ill when he engaged in criminal acts, review was confined to determining whether trial court findings were supported by substantial evidence. State v. Orans, 56 Or App 681, 642 P2d 1197 (1982)

Dispositional judgment of guilty except for insanity is not criminal judgment imposing sentence. State v. Gile, 161 Or App 146, 985 P2d 199 (1999)

161.327

NOTES OF DECISIONS

Mere need for psychiatric treatment or assistance with personal needs cannot support criminal commitment where evidence of dangerousness is lacking. State v. Rath, 46 Or App 695, 613 P2d 60 (1980); State v. LeHuquet, 54 Or App 895, 636 P2d 467 (1981)

It was proper for trial court to apply ORS 161.725 to extend maximum period of commitment of defendant to jurisdiction of Psychiatric Security Review Board. State v. Carrol, 54 Or App 445, 635 P2d 17 (1981), Sup Ct review denied

Under former version of this section, where inter alia, two mental health professionals testified that there was reasonable possibility that defendant’s condition could be activated to the point where he could be danger to himself, there was substantial evidence to support findings that defendant should remain under jurisdiction of Psychiatric Security Review Board. State v. Orans, 56 Or App 681, 642 P2d 1197 (1982)

PSRB is mandated to take jurisdiction for period that trial court determines would be maximum sentence that could have been received by defendant and has no authority to modify trial court’s determination of maximum sentence. Anderson v. PSRB, 65 Or App 69, 670 P2d 185 (1983)

Once jurisdiction passes to PSRB under this section, trial court’s jurisdiction terminates and it has no authority to place conditions on PSRB’s supervision and release of defendant. State v. Pilip, 111 Or App 649, 826 P2d 125 (1992)

Where court errs in setting period of jurisdiction, Psychiatric Security Review Board lacks authority to extend period of jurisdiction to comply with statute. Romanov v. Psychiatric Security Review Board, 179 Or App 127, 38 P3d 965 (2002)

“Maximum sentence” provided by statute for crime means statutory indeterminate maximum sentence person could have received if found guilty. State v. Brooks, 187 Or App 388, 67 P3d 426 (2003), Sup Ct review denied

In fixing length of Psychiatric Security Review Board jurisdiction over defendant based on multiple offenses, court must determine whether defendant could have received consecutive sentences under standards prescribed in ORS 137.123. State v. Brooks, 187 Or App 388, 67 P3d 426 (2003), Sup Ct review denied

LAW REVIEW CITATIONS: 23 WLR 493, 495 (1987); 29 WLR 829 (1993)

161.328

LAW REVIEW CITATIONS: 18 WLR 32 (1982)

161.329

ATTY. GEN. OPINIONS: Right of mentally diseased person to vote, (1972) Vol 35, p 1220

LAW REVIEW CITATIONS: 18 WLR 33 (1982); 23 WLR 493, 495 (1987)

161.336

NOTES OF DECISIONS

Order entered by court after finding of nonresponsibility due to mental disease or defect which placed defendant under jurisdiction of Psychiatric Security Review Board was not reviewable prior to Board’s final order. State v. Cooper, 37 Or App 443, 587 P2d 1051 (1978)

Under this section, legislative intent is that “unfitness for conditional release” is not independent criterion for commitment in absence of dangerousness. Cardwell v. Psychiatric Security Review Board, 38 Or App 565, 590 P2d 787 (1979)

ATTY. GEN. OPINIONS: Responsibility for Psychiatric Security Review Board hearing and order costs, and board order enforcement by law enforcement personnel, (1978) Vol 39, p 371; Enforcement and execution by state and local law enforcement officers of PSRB order of revocation of conditional release, (1980) Vol 41, p 249

LAW REVIEW CITATIONS: 23 WLR 493, 495 (1987)

161.340

NOTE: Repealed January 1, 1978; ORS 161.341 enacted in lieu

See annotations under ORS 161.341.

161.341

NOTES OF DECISIONS

Under this section, persons committed under prior law, which provided for court review of commitment after 5 years, are entitled to hearing by January 1980, unless prior 5 year period expires before that date. Valleur v. McGee, 42 Or App 391, 600 P2d 914 (1979)

Habeas corpus petitioner was not entitled to release where Psychiatric Security Review Board failed to hold mandatory hearing on suitability of release or discharge, but could compel hearing by writ of mandamus. Valleur v. McGee, 42 Or App 391, 600 P2d 914 (1979)

Where there was some testimony that petitioner was retarded and aggressive, there was substantial evidence to support finding that he was suffering mental disease or defect and was dangerous to himself and others. Valleur v. Psychiatric Review Board, 43 Or App 843, 604 P2d 439 (1979)

Because Psychiatric Security Review Board is excluded from requirement of ORS 183.470 pertaining to concise statement of underlying facts, its findings of fact need only be sufficient for meaningful judicial review. Welsh v. PSRB, 82 Or App 315, 728 P2d 82 (1986)

Person suffering from dangerous mental disease or defect may be retained in custody even though no longer suffering from same dangerous mental disease or defect that provided original basis for commitment. Osborn v. Psychiatric Security Review Board, 325 Or 135, 934 P2d 391 (1997)

“Mental disease or defect” does not include substance dependency or other personality disorders. Tharp v. Psychiatric Security Review Board, 338 Or 413, 110 P3d 103 (2005)

ATTY. GEN. OPINIONS: Trial visit status of patients acquitted by reason of mental disease or defect, (1977) Vol 38, p 706; responsibility for paying cost of district attorney appearing before Psychiatric Security Review Board in hearings, (1978) Vol 39, p 371

LAW REVIEW CITATIONS: 18 WLR 36 (1982)

161.346

NOTES OF DECISIONS

In hearing on revocation of conditional release, where petitioner failed to apply for discharge under this section, Board’s only options were to order conditional release or commitment. Cardwell v. Psychiatric Security Review Board, 38 Or App 565, 590 P2d 787 (1979)

Under this section, due process does not require greater standard of proof than preponderance of evidence in hearings before PSRB. Ashley v. PSRB, 53 Or App 333, 632 P2d 15 (1981)

Since decision as to dangerousness of individual confined under jurisdiction of Psychiatric Security Review Board must be made on basis of evidence in record, where decision was made on basis of non-record opinion information case was remanded for further hearing. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied

In hearing to determine whether petitioner should be discharged, conditionally released or retained in state hospital, evidence did not support finding by Psychiatric Security Review Board that petitioner suffered from mental disease or defect at time of hearing and case was remanded for further consideration. Martin v. Psychiatric Security Review Board, 312 Or 157, 818 P2d 1264 (1991)

161.350

NOTE: Repealed January 1, 1978; ORS 161.351 enacted in lieu

See annotations under ORS 161.351.

161.351

NOTES OF DECISIONS

Under former statutory scheme, ORS 161.336 (1) and (2) and 161.341 (1) governed initial dispositional hearing and this section applied only to subsequent hearings to determine whether person continued to be affected by mental disease or defect. Adams v. Psychiatric Sec. Review Bd., 290 Or 273, 621 P2d 572 (1980)

Transfer of jurisdiction from circuit court to PSRB does not violate Article I, section 21 or Article III, section 1 of constitution. Perkey v. Psychiatric Security Review Board, 65 Or App 259, 670 P2d 1061 (1983)

ATTY. GEN. OPINIONS: Psychiatric Security Review Board’s maximum period of jurisdiction, (1979) Vol 39, p 552

LAW REVIEW CITATIONS: 18 WLR 44 (1982)

161.360

NOTES OF DECISIONS

Competency to stand trial includes competency to choose whether to assert defense of nonresponsibility and court may not impose such defense over objection of defendant who was represented by counsel, had not raised defense and had been found competent to stand trial. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984)

Where section makes it clear that motion for determination of fitness to proceed is not untimely at any time before or during trial in any criminal case and court did not discharge its duty to assess defendant’s fitness to proceed, trial court erred in denying defendant’s motion as untimely. State v. Gilmore, 102 Or App 102, 792 P2d 1242 (1990)

For both state and federal law purposes, competency to be sentenced is tested by same standard that applies to other stages of criminal proceeding, but assessment must be specific to context of sentencing and what sentencing proceeding entails. State v. Simon, 294 Or App 840, 433 P3d 385 (2018), Sup Ct review denied

ATTY. GEN. OPINIONS: Right of mentally diseased person to vote, (1972) Vol 35, p 1220

161.370

NOTES OF DECISIONS

Holding incapacitated criminal defendant in jail for extended period pending acceptance by state mental hospital violates defendant’s due process rights. Oregon Advocacy Center v. Mink, 322 F3d 1101 (9th Cir. 2003)

Where trial court finds, based on medical evidence, that defendant is not fit to stand trial, this section implicitly authorizes court to issue Sell order to administer antipsychotic medications to defendant to enable defendant to stand trial, regardless of whether doctor agrees that antipsychotic medication is medically necessary. Oregon State Hospital v. Butts, 358 Or 49, 359 P3d 1187 (2015)

Defendant who must be discharged under this section is one who is presently committed :B1. not one who is in community restoration or supervised release :B1. and has also been committed for maximum allowable period of time. State v. Givens, 321 Or App 689, 517 P3d 1021 (2022), Sup Ct review denied

Legislature intended to provide for discharge when process of enabling defendant to become fit for trial or to be transferred to less restrictive restorative care has not been successful. State v. Givens, 321 Or App 689, 517 P3d 1021 (2022), Sup Ct review denied

Because defendant was not committed at relevant time, as matter of law, trial court was not required to dismiss refiled charges under this section solely because defendant remained unfit for trial and had previously been committed for maximum period of time allowed under this section. State v. Givens, 321 Or App 689, 517 P3d 1021 (2022), Sup Ct review denied

161.385

NOTES OF DECISIONS

Where anonymous phone report of petitioner’s suicide threat was contradicted by testimony of his physician and friend, there was no substantial evidence to support finding that he presented a substantial danger to himself or others. Cardwell v. Psychiatric Security Review Board, 38 Or App 565, 590 P2d 787 (1979)

Agency expertise does not merit granting of deference in reviewing decision for substantial evidence. Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996)

161.387

LAW REVIEW CITATIONS: 18 WLR 42 (1982)

161.405

NOTES OF DECISIONS

It is proper for testimony regarding prior acts of defendant to be admitted for the purpose of showing the specific intent required for a particular crime. State v. Flygare, 18 Or App 292, 525 P2d 181 (1974), Sup Ct review denied

One cannot “attempt” a crime involving an element of recklessness. State v. Smith, 21 Or App 270, 534 P2d 1180 (1975), Sup Ct review denied

Words of enticement with an offer of money are sufficient to constitute attempted statutory rape. State v. McJunkin, 27 Or App 401, 556 P2d 164 (1976)

Absent evidence that defendant was attempting to offer to engage in sexual conduct, defendant could not be guilty of attempt to commit prostitution within meaning of ORS 167.007, notwithstanding that she was walking in area of high vice activity and was seen talking to known prostitute. State v. Brown, 31 Or App 501, 570 P2d 1001 (1977)

State failed to corroborate confession of attempted arson with evidence showing that on day following attempted arson house in question burned; evidence of second day’s burning would tend to prove defendant engaged in continuing course of conduct, but did not provide independent corroborative evidence of the alleged attempted arson of previous day. State v. Swearengin, 32 Or App 349, 573 P2d 362 (1978)

Allegation of “attempt to commit theft” was read as “defendant intentionally engaged in conduct which constituted substantial step toward commission of crime of intentionally depriving another of specified property,” and thus complaint charged defendant with necessary mental state under ORS 164.045. State v. House, 37 Or App 131, 586 P2d 388 (1978)

Where victim incurred no physical injury within meaning of ORS 161.015, second degree assault conviction was modified to attempted second degree assault. State v. Rice, 48 Or App 115, 616 P2d 538 (1980), Sup Ct review denied

Where there was no evidence that victim suffered any impairment of his physical condition as result of defendant’s attack or that pain inflicted was anything more than fleeting sensation, entry of judgment for Attempted Assault in Fourth Degree was appropriate. State v. Capwell, 52 Or App 43, 627 P2d 905 (1981)

In prosecution for attempted rape in the first degree under this section and ORS 163.375, evidence that defendant asked victim “Can I rape you?” and then backed up his car toward her after she walked away does not prove that defendant intended to have forceable sexual intercourse with victim. State v. Graham, 70 Or App 589, 689 P2d 1315 (1984), Sup Ct review denied

Phrase “intentionally attempt” in indictment for attempted murder and attempting to use dangerous weapon was sufficient to allege element of intent. State v. Bass/Landis, 90 Or App 350, 752 P2d 334 (1988)

Where state presented evidence that defendants had intentionally engaged in conduct constituting substantial step toward murder of more than one person, conviction for attempted aggravated murder is proper. State v. Quintero, 110 Or App 247, 823 P2d 981 (1991), Sup Ct review denied

Where jury could find from evidence, including defendant’s conviction six years earlier of kidnapping, rape and sodomy and defendant’s acts in trying to get victim to go with him and following her home, that he took substantial steps toward commission of kidnapping, rape and sodomy, there is sufficient evidence for court to enter conviction of attempted kidnapping, rape and sodomy. State v. Walters, 311 Or 80, 804 P2d 1164 (1991)

Requirement that “substantial step” advance criminal purpose can be satisfied by conduct that could also further noncriminal ends, while requirement that step be strongly corroborative of criminal purpose cannot. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

Requirement that “substantial step” be highly corroborative of criminal purpose means that step must be consistent with charged crime but need not be particular to it. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

Speech can, by itself, be sufficient “conduct” to constitute substantial step. State v. Jessen, 162 Or App 662, 986 P2d 684 (1999), Sup Ct review denied

Where defendant commits crime intentionally, and conduct constituting crime strongly corroborates defendant’s purpose to commit additional crime, state may use conduct to prove substantial step toward commission of second crime. State v. Muzzy, 190 Or App 306, 79 P3d 324 (2003), Sup Ct review denied

Criminal solicitation of agent to engage in conduct constituting element of crime is substantial step toward commission of crime. State v. Johnson, 202 Or App 478, 123 P3d 304 (2005), Sup Ct review denied

Defendant intending for conduct constituting crime to be performed entirely by someone else, and who does not intend to personally engage in conduct constituting element of substantive crime, does not take substantial step. State v. Kimbrough, 364 Or 66, 431 P3d 76 (2018)

Impossibility of committing a substantive crime, due to mistaken belief, failed circumstance or ineffective means, is not defense to charge of attempt. State v. Kyger, 369 Or 363, 506 P3d 376 (2022), 369 Or 604, 509 P3d 112 (2022) (former opinion adhered to as modified)

This section sets out circumstances demonstrating inchoate “crime of attempt” but does not define “attempt” as used in other criminal statutes. State v. Hubbell, 371 Or 340, 537 P3d 503 (2023)

COMPLETED CITATIONS: State v. Moore, 4 Or App 548, 480 P2d 458 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 483, 568 (1972)

161.425

NOTES OF DECISIONS

Defendant can properly be convicted of attempted theft-by-receiving even though the subject property was not stolen. State v. Niehuser, 21 Or App 33, 533 P2d 834 (1975)

LAW REVIEW CITATIONS: 51 OLR 483 (1972)

161.430

NOTES OF DECISIONS

Where defendant’s only defense to charge of attempted rape was renunciation it was reversible error for court to allow state to elicit testimony from defendant on cross-examination that prior to attempted rape defendant, while armed with gun, had entered convenience store with intent to rob it. State v. Wasson, 45 Or App 169, 607 P2d 792 (1980)

ATTY. GEN. OPINIONS: Right of mentally diseased person to vote, (1972) Vol 35, p 1220

LAW REVIEW CITATIONS: 51 OLR 483, 492 (1972)

161.435

NOTES OF DECISIONS

Solicitation in Oregon of commission of offense in another jurisdiction is punishable under solicitation statutes if crime solicited is also offense in Oregon. State v. Self, 75 Or App 230, 706 P2d 975 (1985)

Completed communication is required to prove solicitation under this section and where defendant, while incarcerated, wrote letters to individual incarcerated in different facility outlining plan for future robbery but officials intercepted letters, defendant was guilty of attempted solicitation only. State v. Lee, 105 Or App 329, 804 P2d 1208 (1991)

“Specific conduct” constituting crime requires that intended criminal act be specifically identifiable, not that full details for conducting intended criminal act be settled upon. State v. Johnson, 202 Or App 478, 123 P3d 304 (2005), Sup Ct review denied

Defendant, who solicited two individuals several days apart to commit same crime of kidnapping, committed two crimes of solicitation. State v. Badillo, 260 Or App 218, 317 P3d 315 (2013)

Evidence that defendant asked intermediary to deliver certain information to third person, which defendant thought would cause that person to commit aggravated murder and where intermediary was aware of crime for which defendant sought to procure third party, was sufficient to establish that defendant solicited intermediary to aid and abet aggravated murder. State v. Everett, 355 Or 670, 330 P3d 22 (2014)

161.450

NOTES OF DECISIONS

Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself. State v. Brewer, 12 Or App 105, 504 P2d 1067 (1973), aff’d 267 Or 346, 517 P2d 264 (1973)

As part of the agreement, the defendant must have had the intent with others of committing a certain crime. State v. Brewer, 12 Or App 105, 504 P2d 1067 (1973), aff’d 267 Or 346, 517 P2d 264 (1973)

The crime is complete when the conspiratorial agreement is entered into; proof of an overt act in furtherance of the conspiracy is no longer required. State v. Brewer, 12 Or App 105, 504 P2d 1067 (1973), aff’d 267 Or 346, 517 P2d 264 (1973)

Defendant could properly be convicted of conspiracy to commit theft of a dog notwithstanding that he was listed as “co-owner” on the dog’s certificate filed solely to enable defendant to exhibit the dog at dog shows. State v. Harris, 21 Or App 174, 534 P2d 202 (1975), Sup Ct review denied

Conviction for conspiracy to commit criminal activity in drugs may be treated either as a Class B felony or a Class A misdemeanor. State v. Teters, 23 Or App 571, 543 P2d 302 (1975)

A defendant may be charged with both criminal activity in drugs and conspiracy to commit the same crime although only a single conviction and sentence may be entered. State v. Teters, 23 Or App 571, 543 P2d 302 (1975)

Conspiracy to commit series of crimes constitutes single offense lasting from time of agreement through termination. State v. Fancher, 27 Or App 91, 555 P2d 792 (1976), Sup Ct review denied

Accomplice testimony was sufficiently corroborated by other evidence connecting defendant to crime to sustain conviction of conspiracy to murder. State v. Curran, 38 Or App 351, 590 P2d 268 (1979), Sup Ct review denied

On appeal, after defendant was convicted on remand from prior appeal, where initial agreement constituting conspiracy took place in Multnomah County and the elements of the agreement were added in Washington County, venue to try defendant for conspiracy was proper in Washington County. State v. Mathie, 54 Or App 232, 634 P2d 799 (1981), Sup Ct review denied

Intended victims of conspiracy to commit particular crimes are included within meaning of “victims,” in ORS 161.067, and trial court properly refused to merge nine conspiracy convictions where there were nine intended victims. State v. Graves, 92 Or App 642, 759 P2d 1121 (1988)

LAW REVIEW CITATIONS: 51 OLR 492, 595-603, 618 (1972)

161.455

NOTES OF DECISIONS

Where evidence showed defendant entered conspiracy in Clackamas County, coconspirators’ prior agreement in Multnomah County did not make defendant’s offense one “committed” in that county by virtue of this section. State v. Sims, 287 Or 349, 599 P2d 461 (1979)

161.460

NOTES OF DECISIONS

When an indictment charges that a criminal agreement was made in a certain county, a conviction cannot rest on proof that the agreement was made in a different county and only subsequent acts in pursuance of the agreement occurred in the county where the making of the agreement is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

LAW REVIEW CITATIONS: 51 OLR 492, 599 (1972)

161.465

NOTES OF DECISIONS

Conspiracy to rob contemplates avoidance of detection and arrest and therefore continues through commission of affirmative acts of concealment. State v. Davis, 19 Or App 446, 528 P2d 117 (1974)

161.475

LAW REVIEW CITATIONS: 51 OLR 599 (1972)

161.485

NOTES OF DECISIONS

Where defendant opposed state’s motion to consolidate charges resulting from same conduct he waived double jeopardy protection, and the two findings of guilty were properly merged into one conviction for sentencing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

Where evidence showed conspiracy it was not error to charge defendant with murder. State v. Farber, 59 Or App 725, 652 P2d 372 (1982), aff’d 295 Or 199, 666 P2d 821 (1983)

It was error to convict defendant of arson in the first degree and of conspiracy to commit the same arson. State v. Matt, 64 Or App 718, 669 P2d 840 (1983)

Convictions for conspiracy to deliver heroin and delivery of heroin should have been merged. State v. Mendosa, 97 Or App 263, 775 P2d 905 (1989)

161.505 to 161.585

LAW REVIEW CITATIONS: 51 OLR 433 (1972)

161.505

LAW REVIEW CITATIONS: 18 WLR 232 (1982)

161.515

NOTES OF DECISIONS

LAW REVIEW CITATIONS: 50 OLR 311 (1971); 53 OLR 95 (1973); 10 WLJ 12 (1973)

161.545

NOTES OF DECISIONS

Where defendant purposely pointed unloaded pistol at Bureau of Indian Affairs Security Officer in violation of Oregon Statute, use of Assimilative Crimes Act was appropriate since federal statute did not punish precise acts upon which state law conviction depended and victim’s testimony that defendant pointed gun at him was sufficient evidence that defendant acted “purposely” within meaning of Oregon statute. U.S. v. Kaufman, 862 F 2d 236 (9th Cir. 1988)

LAW REVIEW CITATIONS: 10 WLJ 12 (1973)

161.555

LAW REVIEW CITATIONS: 10 WLJ 12 (1973)

161.566

NOTES OF DECISIONS

Where prosecuting attorney elects to treat misdemeanor as Class A violation, subject to constitutional constraints, offense is violation for purposes of applying ORS 153.108 to subsequent prosecution of defendant for crime that was part of same criminal episode. State v. Page, 200 Or App 55, 113 P3d 447 (2005), Sup Ct review denied; State v. Hewitt, 206 Or App 680, 138 P3d 873 (2006)

161.585

NOTES OF DECISIONS

Where defendant was convicted of being ex-convict in possession of firearm under ORS 166.270 and sentenced to maximum one year term, he had not been accorded misdemeanor treatment under this section. State ex rel Redden v. Davis, 288 Or 283, 604 P2d 879 (1980)

Provision that felony is automatically reduced to misdemeanor at sentencing if court imposes only fine is superseded by ORS 166.270 for purposes of determining whether person is felon in possession of firearm. Koennecke v. Lampert, 198 Or App 444, 108 P3d 653 (2005), Sup Ct review denied

161.605 to 161.685

LAW REVIEW CITATIONS: 51 OLR 433, 476, 489 (1972)

161.605

NOTES OF DECISIONS

Imposition of one-year jail term upon conviction of criminal activity in drugs was within maximum sentence authorized for crime, was imposed after defendant had violated probation, and did not shock the conscience. State v. Davis, 31 Or App 439, 570 P2d 683 (1977), Sup Ct review denied

Fact that defendant had at one time and place withheld property from 20 different victims was sufficient to constitute 20 separate theft offenses for each of which he could be sentenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where defendant commits multiple felonies in separate situations but is prosecuted for all felonies in single proceeding, defendant can receive only one mandatory minimum sentence under this section. State v. Haywood, 73 Or App 6, 697 P2d 977 (1985)

161.610

NOTES OF DECISIONS

Under former similar statute (ORS 166.230)

Enhanced penalty is applicable only to armed person, not to unarmed co-felon. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

In general

Since this section does not increase defendant’s sentence in any way, but simply provides for minimum term of imprisonment, it does not punish exactly same conduct as that prohibited by robbery statute (ORS 164.415) and can apply to robbery conviction. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review denied

The mandatory minimum sentencing provisions of this section do not violate Article I Section 15 of Oregon Constitution, the reformation clause. State v. Warner, 52 Or App 987, 630 P2d 385 (1981), Sup Ct review denied

Sentence authorized and imposed pursuant to this section does not offend vindictive justice prohibitions of Oregon Constitution Article I, Section 15. State v. Lippert, 53 Or App 358, 632 P2d 28 (1981), Sup Ct review denied

Where the record shows no prior conviction and punishment under this section, the court is without authority to impose a ten-year minimum sentence for use or threatened use of a firearm. State v. Grant, 60 Or App 165, 653 P2d 242 (1982)

Where trial is by jury, enhanced sentence may not be imposed unless jury makes factual finding that defendant actually used or threatened to use firearm. State v. Wedge, 293 Or 598, 652 P2d 773 (1982); State v. Thiehoff, 169 Or App 630, 10 P3d 322 (2000), Sup Ct review denied

It was error for trial court to impose mandatory minimum sentence pursuant to this section after court had specifically found defendant did not personally use or threaten to use a firearm. State v. Thiesies, 63 Or App 200, 662 P2d 797 (1983)

This section and ORS 144.110 are intended to operate together and court may not impose consecutive minimum sentences under the two sections. State v. Walker, 68 Or App 561, 683 P2d 1006 (1984)

Under this section, consecutive minimum sentences cannot be imposed for series of felonies arising out of same criminal episode. State v. Browder, 68 Or App 723, 683 P2d 558 (1984), aff’d 298 Or 616, 695 P2d 569 (1985)

It was permissible for legislature, in enacting this section, to determine that person who has used firearm in commission of felony must serve minimum term of incarceration. State v. Earls, 69 Or App 75, 683 P2d 1387 (1984), Sup Ct review denied

Legislature intended that Board of Parole release date could set date as early as minimum term less good time expected to be accrued. Smith v. Board of Parole, 297 Or 184, 683 P2d 998 (1984)

This section does not authorize imposition of multiple minimum sentences for use of firearm in multiple crimes that are part of single criminal episode, even if such multiple minimum sentences are to run concurrently. State v. McCrea, 72 Or App 587, 696 P2d 1129 (1985), Sup Ct review denied

There can be only one “first” sentence whether it runs consecutively or concurrently with another sentence and trial court could not impose, for use of firearm, two concurrent minimum sentences under this section. State v. Pakulak, 75 Or App 418, 706 P2d 595 (1985)

Under circumstances, imposition of multiple minimum sentence for firearm use was not permissible. State v. Richardson, 77 Or App 64, 711 P2d 201 (1985)

This section does not authorize multiple mandatory terms of imprisonment when single trial results in convictions of more than one felony in which firearm was used or threatened to be used. State v. Hardesty, 298 Or 616, 695 P2d 569 (1985); State v. Dam, 111 Or App 15, 825 P2d 286 (1992), Sup Ct review denied

Under this section, defendant who commits two felonies in two separate criminal episodes and is convicted in two separate judicial proceedings, is subject to only one mandatory minimum gun sentence unless second felony was committed after punishment for first. State v. Wells, 82 Or App 283, 728 P2d 533 (1986)

Corrections Division may distinguish between time served and work performed, both of which entitle prisoner to sentence reduction under ORS 421.120 when determining “good time served” under ORS 161.610. Haffey v. Keeney, 84 Or App 607, 735 P2d 16 (1987), Sup Ct review denied

Mandatory minimum term of imprisonment that must be imposed under this section for use or threatened use of firearm during commission of felony is not limited in duration to that of minimum term that trial court may impose under ORS 144.110, which provides that trial court may impose minimum term of up to one-half of sentence it imposes. State v. Stelljes, 84 Or App 637, 735 P2d 24 (1987), Sup Ct review denied

Under this section, only one minimum sentence may be imposed for use or threatened use of firearm during criminal episode. State v. Moore, 88 Or App 159, 744 P2d 1006 (1987)

Mandatory minimum sentence under ORS 144.110 is not reduced for statutory good time in same way minimum sentence for use of firearm in commission of felony in this section is reduced for statutory good time. Watts v. Maass, 88 Or App 317, 746 P2d 220 (1987)

This section requires that court impose designated minimum term of imprisonment whenever defendant has used or threatened to use firearm during commission of felony and trial court lacked authority to impose lesser minimum term than that mandated by this section. Wallace v. Maass, 90 Or App 166, 750 P2d 1210 (1988)

One who points gun at victim and pulls trigger without gun firing and then hits victim with gun has used firearm within meaning of this section. State v. Hallinan, 92 Or App 125, 757 P2d 446 (1988), Sup Ct review denied

Caption need not include allegation that crime was committed with firearm if allegation is included in body of indictment. State v. Cesario II, 94 Or App 262, 764 P2d 981 (1988)

This section requires that sentencing court impose gun minimum sentence unless there are mitigating circumstances and post-conviction court lacks authority to require sentencing court to impose sentence other than that required by statute. State v. Grimm, 95 Or App 369, 769 P2d 238 (1989), Sup Ct review denied

Trial court properly imposed minimum term sentence under this section based upon finding that defendant had threatened use of firearm while committing felony of being ex-convict in possession of firearm under ORS 166.270. State v. Gilbert, 99 Or App 116, 781 P2d 389 (1989)

Minimum sentence based on possession of firearm may be imposed only on individual who personally uses or threatens to use firearm, not on aider and abetter. State v. Pies, 104 Or App 646, 802 P2d 702 (1990); State v. Thiehoff, 169 Or App 630, 10 P3d 322 (2000), Sup Ct review denied

Trial court erred by sentencing defendant both to presumptive sentence and to minimum term described in this section. State v. Stalder, 117 Or App 289, 844 P2d 225 (1992)

Limitations on incarceration term in ORS 137.637 do not limit application of other provisions of this section. State v. Stalder, 117 Or App 289, 844 P2d 225 (1992)

Separate finding that defendant used or threatened to use firearm was not needed where jury returned guilty verdict on charge having as element the use or threatened use of firearm. State v. Akin, 125 Or App 351, 865 P2d 461 (1993), Sup Ct review denied

Where imposing both gun minimum and consecutive sentences subject to restrictions of ORS 137.121, court must first determine primary offense, then determine length of terms for consecutive sentences by imposing gun minimum term or, if greater, by electing to impose term allowed for consecutive sentences under sentencing guidelines. State v. Johnson, 125 Or App 655, 866 P2d 1245 (1994)

Where use of firearm is element of crime charged, indictment need not allege that crime was committed with firearm in order to make defendant subject to enhanced penalty. State v. Wimberly, 152 Or App 154, 952 P2d 1042 (1998)

“Use” of firearm means discharging of firearm. State v. Harris, 174 Or App 105, 25 P3d 404 (2001)

Exemption of minimum term of imprisonment from maximum sentence provisions of ORS 161.605 does not exempt minimum term from sentencing guidelines restriction on length of post-prison supervision term. Layton v. Hall, 181 Or App 581, 47 P3d 898 (2002)

Out-of-state conviction for previous gun crime does not make defendant subject to higher gun minimum sentence as repeat offender. State v. Hilton, 187 Or App 666, 69 P3d 779 (2003), Sup Ct review denied

Under version of statute in effect in 2001, defendant could not collaterally attack validity of predicate conviction. State v. Jacob, 208 Or App 62, 145 P3d 212 (2006), aff’d 344 Or 181, 180 P3d 6 (2008)

This section does not require imposition of firearm minimum sentence on first qualifying offense for which defendant is sentenced in single case involving multiple firearm offenses. State v. Pouncey, 303 Or App 365, 464 P3d 448 (2020), Sup Ct review denied

LAW REVIEW CITATIONS

In general

26 WLR 566 (1990)

161.615

NOTES OF DECISIONS

Because sentencing guidelines do not apply to misdemeanor convictions, trial court did not err by requiring defendant to serve consecutive misdemeanor sentences after serving prison term for felony conviction. State v. Miller, 114 Or App 235, 835 P2d 131 (1992)

161.620

NOTES OF DECISIONS

This section prohibits imposition of any minimum prison term on remanded juvenile, except if conviction is under ORS 163.105; overruling State v. Noble, 94 Or App 123, 764 P2d 949 (1988). Wells v. Peterson, 111 Or App 171, 826 P2d 13 (1992), aff’d on other grounds, 315 Or 233, 844 P2d 192 (1992)

“Mandatory minimum sentence” means statutorily required minimum sentence. State v. Jones, 315 Or 225, 844 P2d 188 (1992); Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007)

Where juvenile is convicted of crime specifically subjecting juvenile to mandatory minimum sentence, general prohibition against mandatory minimum sentence for juvenile does not apply. State v. Lawler, 144 Or App 456, 927 P2d 99 (1996), Sup Ct review denied

Determinate sentence imposed under sentencing guidelines is not “mandatory minimum sentence.” State v. Davilla, 157 Or App 639, 972 P2d 902 (1998), Sup Ct review denied

Features of “mandatory minimum sentence” include: 1) requirement that court impose sentence; 2) specified duration that court may not reduce; and 3) confinement of person. State v. Kennedy, 196 Or App 681, 103 P3d 660 (2004)

Statute has no application to authority of Board of Parole and Post-Prison Supervision to adopt rules allowing for parole release by juveniles convicted of aggravated murder. State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011)

LAW REVIEW CITATIONS: 75 OLR 1223 (1996); 52 WLR 61 (2015)

161.625

NOTES OF DECISIONS

Trial court was without authority to impose fine as punishment for defendant’s murder conviction. State v. Batty, 109 Or App 62, 819 P2d 732 (1991), Sup Ct review denied

161.635

NOTES OF DECISIONS

1993 amendment increasing maximum fine for class A misdemeanors does not apply retroactively to cases pending on effective date of amendment. State v. Flowers, 136 Or App 555, 902 P2d 624 (1995), Sup Ct review denied

Conviction fee assessed by court is not considered when determining maximum fine that may be imposed on defendant convicted of Class A misdemeanor. State v. Coates, 288 Or App 586, 406 P3d 1123 (2017)

LAW REVIEW CITATIONS: 69 OLR 175 (1990)

161.645

NOTES OF DECISIONS

Finding of ability to pay is not required where fine is levied for summary contempt. State v. Ramsey, 156 Or App 529, 967 P2d 525 (1998), Sup Ct review denied

161.655

LAW REVIEW CITATIONS: 51 OLR 593 (1972)

161.665 to 161.685

NOTES OF DECISIONS

Fees of appointed defense attorneys and investigation expenses are “costs” which are assessable to defendant as part of sentence. State v. Fuller, 12 Or App 152, 504 P2d 1393 (1973), Sup Ct review denied, aff’d 40 L Ed 2d 642, 94 S Ct 2116

When sentence is imposed and defendant has commenced service of that sentence, trial court’s jurisdiction to supplement it by amendment is exhausted. State v. Olson, 22 Or App 344, 539 P2d 166 (1975)

As a condition of probation, the defendant may be required to pay for the state’s witness fees but not juror’s fees. State v. Hastings, 24 Or App 123, 544 P2d 590 (1976)

Prevailing party fee cannot be included as part of costs incurred by state and chargeable to convicted criminal defendant. State v. Marino, 25 Or App 817, 551 P2d 131 (1976)

Due process requires that defendant be afforded notice that costs may be imposed, and be given opportunity to be heard on whether imposition of costs is appropriate. Stacey v. State of Oregon, 30 Or App 1075, 569 P2d 640 (1977)

Expense of transporting defendant to Oregon after waiver of extradition was cost “specially incurred by state in prosecuting defendant” and was properly assessed as part of sentence. State v. Armstrong, 44 Or App 219, 605 P2d 736 (1980), Sup Ct review denied

Criminal defendant can be required to pay costs incurred by state following filing of felony information against him in district court. State v. Haynes, 61 Or App 43, 655 P2d 621 (1982), Sup Ct review denied

Court should consider defendant’s ability to pay and financial resources before imposing obligation to reimburse state for costs of trial. State v. Armstrong, 71 Or App 467, 692 P2d 699 (1984)

If expenses would not be recoverable by Department of Justice, they are not made recoverable by billing them to another agency. State v. Heston, 74 Or App 631, 704 P2d 541 (1985)

LAW REVIEW CITATIONS: 11 WLJ 284, 288, 289, 291 (1975); 55 OLR 101 (1976)

161.665

NOTES OF DECISIONS

This section does not unconstitutionally deny defendant right to counsel, nor unconstitutionally discriminate against him because of poverty. State v. Fuller, 12 Or App 152, 504 P2d 1393 (1973), Sup Ct review denied, aff’d 40 L Ed 2d 642, 94 S Ct 2116

As a condition of probation, the defendant may be required to pay for the state’s witness fees but not juror’s fees. State v. Hastings, 24 Or App 123, 544 P2d 590 (1976)

Prevailing party fee cannot be included as part of costs incurred by state and chargeable to convicted criminal defendant. State v. Marino, 25 Or App 817, 551 P2d 131 (1976)

Overtime pay to sheriff’s deputies who testified at trial was not proper part of costs that could be assessed against convicted defendant under this section. State v. Washburn, 48 Or App 157, 616 P2d 554 (1980)

Appointment of counsel for indigent petitioners in post-conviction actions does not, by itself, subject petitioners to payment of attorney fees. Hawk v. State of Oregon, 51 Or App 655, 626 P2d 931 (1981)

Expenses incurred prior to charging of defendant are not costs of prosecution. State v. Haynes, 53 Or App 850, 633 P2d 38 (1981), Sup Ct review denied; State v. Haynes, 61 Or App 43, 655 P2d 621 (1982), Sup Ct review denied

Court should consider defendant’s ability to pay and financial resources before imposing obligation to reimburse state for costs of trial. State v. Armstrong, 71 Or App 467, 692 P2d 699 (1984)

If expenses would not be recoverable by Department of Justice, they are not made recoverable by billing them to another agency. State v. Heston, 74 Or App 631, 704 P2d 541 (1985)

Costs for psychiatric evaluation made before defendant was indicted for murder cannot properly be assessed against defendant because only those expenses specially incurred after formal prosecution of defendant has commenced may be assessed as costs under this section. State v. Twitty, 85 Or App 98, 735 P2d 1252 (1987), Sup Ct review denied

Court erred in imposing condition of probation requiring defendant to reimburse state for court appointed attorney fees without considering defendant’s present or future ability to pay. State v. San Antonio, 96 Or App 282, 772 P2d 449 (1989)

Where condition of probation requires defendant to pay all costs incurred by state in providing defense, court’s failure to specify amount was error. State v. Moore, 96 Or App 541, 773 P2d 25 (1989)

Amount assessable as “reasonable attorney fee” is not limited to expenses actually incurred in defending particular case. State v. Gruver, 138 Or App 124, 906 P2d 852 (1995)

Because “conviction” requires judgment and imposition of criminal sentence, person found guilty except for insanity cannot be required to pay state expenses. State v. Gile, 161 Or App 146, 985 P2d 199 (1999)

“Expenses inherent in providing a constitutionally guaranteed jury trial” refers only to expenses relating to jury aspect of trial, not to expenses relating to all constitutional rights guaranteed defendant at jury trial. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

Costs incurred in extraditing defendant for probation violation are not recoverable because they are not incurred during prosecution of defendant in proceeding leading to entry of judgment of conviction. State v. Flajole, 204 Or App 295, 129 P3d 770 (2006)

Court cannot impose fees where record says nothing about whether defendant is or may be able to pay fees. State v. Pendergrapht, 251 Or App 630, 284 P3d 573 (2012)

Salary-related payments--whether for regular, overtime, or unbudgeted overtime work--are excluded from scope of section as expenditures in connection with maintenance and operation of government agencies. State v. Kuehner, 252 Or App 628, 288 P3d 578 (2012)

Order that defendant pay court-appointed attorney fees requires objective, nonspeculative assessment of ability to pay. State v. Moreno-Hernandez, 290 Or App 468, 415 P3d 1088 (2018), aff’d on other grounds, 365 Or 175, 442 P3d 1092 (2019)

Court may not use third party’s payment of security funds on defendant’s behalf as sole basis for finding that defendant has ability to pay court-ordered costs such as attorney fees if funds belong to third party. State v. Morales, 367 Or 222, 476 P3d 954 (2020)

LAW REVIEW CITATIONS: 11 WLJ 284, 288, 289, 291 (1975); 55 OLR 101 (1976)

161.675

NOTES OF DECISIONS

Revocation of probation can occur only if court specifically finds: (1) The defendant has present financial ability to repay costs involved without hardship to himself or family; and (2) his failure to repay is intentional, contumacious default. State v. Fuller, 12 Or App 152, 504 P2d 1393 (1973), Sup Ct review denied, aff’d 40 L Ed 2d 642, 94 S Ct 2116

There is no constitutional objection to sentence that places defendant on probation on condition that he repay costs. State v. Fuller, 12 Or App 152, 504 P2d 1393 (1973), Sup Ct review denied, aff’d 40 L Ed 2d 642, 94 S Ct 2116

Where trial court sentenced defendant to 3 years’ imprisonment following conviction for first degree forgery and further ordered restitution of victim, which order contained no “specified period of time” or “specified installments”, order was not sufficiently specific for defendant to know what was required of him. State v. Calderilla, 34 Or App 1007, 580 P2d 578 (1978)

Where defendant was convicted of unauthorized use of motor vehicle prior to effective date of this section, trial court, upon revocation of probation, had no authority to impose condition of restitution on any parole he might later receive. State v. Harvey, 35 Or App 719, 582 P2d 476 (1978)

ORS 144.275, empowering Board of Parole to establish restitution schedule for parolees, did not relieve trial court of duty to enter order specifying, inter alia, time, place and manner of payment. State v. Ewing, 36 Or App 573, 585 P2d 34 (1978); State v. Secreto, 54 Or App 709, 636 P2d 438 (1981)

Where bail money was deposited with court subject to express condition that it be forfeited for costs and trial court denied motion by third party for its return and referred to it as source for payment of costs, this was sufficient finding of ability to pay costs under this section. State v. Wise, 40 Or App 303, 594 P2d 1313 (1979)

Where payment of restitution was condition of probation, sentencing order which specified that amount of restitution was to be “paid at a rate and on a schedule to be determined by probation officer” was improper as such a plan must be ordered by the court and not probation officer. State v. Randolph, 49 Or App 399, 619 P2d 680 (1980)

Trial court cannot, on remand, impose payment for appellate counsel attorney fees as probation condition. State v. Rowton, 57 Or App 431, 645 P2d 551 (1982)

Trial court properly found defendant had present ability to pay victim assistance assessment and cost of appointed counsel. State v. Wetzel, 94 Or App 426, 765 P2d 835 (1988)

Trial courts delegation to Board of Parole determination of defendant’s restitution payment schedule was not authorized. State v. Wilcher, 96 Or App 603, 773 P2d 803 (1989)

Where defendant waived his right to be heard and object to imposition of restitution in trial court, defendant waived right to challenge imposition of restitution on appeal. State v. Carpenter, 101 Or App 489, 791 P2d 145 (1990), Sup Ct review denied

LAW REVIEW CITATIONS: 11 WLJ 288, 291 (1975); 55 OLR 101 (1976)

161.685

NOTES OF DECISIONS

The Oregon recoupment scheme does not violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Fuller v. Oregon, 417 US 40, 40 L Ed 2d 642, 94 S Ct 2116 (1974)

Evidence, that defendant either had income during 9-month period of nonpayment of fine or that he could have sought employment to produce income during such period, was sufficient to support finding that defendant did not make good faith effort to pay fine. State v. Meyer, 31 Or App 775, 571 P2d 550 (1977)

Court had no authority under this section to impose determinate sentence. State v. Benton, 101 Or App 386, 790 P2d 1191 (1990); 102 Or App 585, 795 P2d 601 (1990), aff’d 311 Or 295, 810 P2d 851 (1991)

Because this provision does not authorize determinate sentence, provision is about civil, not criminal contempt so trial procedures did not violate defendant’s privilege against self-incrimination or right to due process. State v. Benton, 102 Or App 585, 795 P2d 601 (1990), aff’d 311 Or 295, 810 P2d 851 (1991)

Authorization to collect fine upon default is permissive and does not create requirement that default occur prior to collection efforts. Wilkins v. Frink, 158 Or App 76, 971 P2d 494 (1999), Sup Ct review denied

LAW REVIEW CITATIONS: 11 WLJ 288, 291 (1975); 55 OLR 101 (1976)

161.705 to 161.735

NOTES OF DECISIONS

By enacting this section, the legislature intended to authorize a compromise of all Class C felonies which could be punished “as a misdemeanor.” State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

161.705

NOTES OF DECISIONS

By enacting this section, the legislature intended to authorize a compromise of all Class C felonies which could be punished “as a misdemeanor.” State v. Dumond, 270 Or 854, 530 P2d 32 (1974)

Where defendant was found guilty of Class C felony, but judgment of conviction for Class A misdemeanor was entered under this section, defendant could be impeached under Evidence Code Rule 609 (1), having been convicted of crime punishable in excess of one year. State v. Smith, 298 Or 173, 691 P2d 89 (1984)

161.725

NOTES OF DECISIONS

Under former similar statutes (ORS 137.111 to 137.115)

Procedures for sentencing did not amount to a denial of equal protection because they were different from the mental commitment procedures. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

In general

Since this section does not require proof beyond reasonable doubt of dangerous offender status, evidence that defendant entertained sexual fantasies of rape, and that he had prior convictions for forcible sex offenses, was sufficient to show that he was “suffering from severe personality disorder indicating propensity toward criminal activity.” State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

This section does not conflict with ORS 426.675 because it provides for magnified sentence of incarceration for dangerous offender as means of preventing individual from inflicting future harm, while ORS 426.675 authorizes treatment program for sexually dangerous person during incarceration. State v. Sanders, 35 Or App 503, 582 P2d 22 (1978), Sup Ct review denied

Legislative intent of this section was not that first offender receive enhanced penalty because accomplice had previously been convicted. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

It was proper for trial court to apply this section to extend maximum period of commitment of defendant to jurisdiction of Psychiatric Security Review Board. State v. Carrol, 54 Or App 445, 635 P2d 17 (1981), Sup Ct review denied

Whether felony for which defendant is being sentenced seriously endangered the life or safety of another is determined by actual circumstances, not elements defining felony. State v. Allen, 68 Or App 5, 680 P2d 997 (1984), Sup Ct review denied

Argument by defendant that trial court lacked authority to impose minimum sentence after sentencing him as dangerous offender under this section was without merit. State v. Downs, 69 Or App 556, 686 P2d 1041 (1984)

Where sentence imposed under this section is for felony conviction, ORS 144.110 allows imposition of minimum term of imprisonment. State v. Turner, 296 Or 451, 676 P2d 873 (1984)

Whether defendant is suffering from “severe personality disorder indicating a propensity toward criminal activity” is determination to be made by court upon consideration of psychiatric report, presentence report and evidence in case or that presented at presentence hearing. State v. Huntley, 302 Or 418, 730 P2d 418 (1986)

Although trial court is required to order psychiatric examination of defendant under ORS 161.735 (1), court is not bound by conclusions of any psychotherapist but is required by statute to make its own findings as to whether defendant is suffering from severe personality disorder with propensity toward criminal activity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

While court must consider psychiatric report, statute does not require that psychiatrist make finding of dangerousness or severe personality disorder. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986); State v. Trice, 146 Or App 15, 933 P2d 345 (1997)

Language of this section requiring that court find defendant is suffering from severe personality disorder indicating a propensity toward criminal activity means a finding that defendant is suffering from a severe mental or emotional disorder indicating propensity toward continuing dangerous criminal activity. State v. Huntley, 302 Or 418, 730 P2d 1234 (1986)

Where court found that defendant was dangerous offender under standards of this section, fact that defendant was also psychotic did not render statute inapplicable. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

If person is only psychotic and does not also suffer from severe personality disorder accompanied by propensity to commit future criminal acts, fact that psychotic offender might be dangerous would not bring him within this statute. State v. Nickell, 302 Or 439, 730 P2d 1246 (1986)

Minimum sentence under ORS 161.725 for person suffering severe personality disorder is not cruel and unusual punishment of person for suffering disorder, but reflects legislative recognition that having disorder makes person more likely to commit dangerous crimes and less amenable to rehabilitation. State v. Caughey, 89 Or App 605, 750 P2d 511 (1988), Sup Ct review denied

This section does not authorize penalty in addition to that imposed for underlying offense, it only authorizes enhanced sentence in lieu of that otherwise authorized for particular crime. State v. Burr, 90 Or App 338, 752 P2d 330 (1988)

For purpose of imposition of dangerous offender sanctions, this section relates to nature of crime for which defendant is sentenced and not to nature of defendant’s involvement. State v. Mastne/Passer, 91 Or App 31, 754 P2d 4 (1988), Sup Ct review denied

Where court considered “report” under ORS 161.735 that defendant was uncooperative and that psychiatric analysis could not be made and observed defendant and heard evidence, including description of defendant’s conduct during criminal episode, there was sufficient evidence to support finding that defendant is dangerous offender under this section. State v. Pryor, 96 Or App 181, 772 P2d 431 (1989), Sup Ct review denied

After finding defendant is dangerous offender under this section and ORS 161.735, sentencing court may not sentence defendant to determinate term under ORS 137.635. State v. Reese, 114 Or App 557, 836 P2d 737 (1992)

Where trial court found defendant was dangerous offender suffering from severe personality disorder indicating propensity towards criminal activity, and dangerousness of defendant required extended incarceration for protection of public, these findings taken together are sufficient to support conclusion defendant is dangerous offender. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Where 30-year dangerous offender sentence exceeded prescribed statutory maximum sentence, imposition of dangerous offender sentence based on finding of fact by court violated defendant’s federal constitutional right to have fact proved to jury beyond reasonable doubt. State v. Warren, 195 Or App 656, 98 P3d 1129 (2004), Sup Ct review denied

Waiver of right to jury trial on underlying charge is not waiver of right to have jury determine whether defendant is dangerous offender for sentencing purposes. State v. Williams, 197 Or App 21, 104 P3d 1151 (2005)

COMPLETED CITATIONS: O’Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied

161.735

NOTES OF DECISIONS

Under former similar statute (ORS 168.080)

Photographs included in criminal records are acceptable as other procedure for proving previous conviction. State v. Anderson, 15 Or App 607, 517 P2d 339 (1973), Sup Ct review denied

In general

Where psychiatrists who testified to defendant’s mental condition at trial were available for questioning during presentence hearing, court was not required to order post-trial examination of defendant at state hospital. State v. Dodson, 25 Or App 859, 551 P2d 484 (1976)

Legislative intent of this section was not that first offender receive enhanced penalty because accomplice had previously been convicted. State v. Hicks, 38 Or App 97, 589 P2d 1130 (1979)

Psychiatric report required by this statute, based on prediction of future dangerousness, does not violate federal due process rights. State v. Smith, 66 Or App 374, 675 P2d 1060 (1984), Sup Ct review denied

Defendant may be found to be dangerous offender under this section even if he refuses psychiatric evaluation as required by this section, provided that presentence report and evidence in case sufficiently support that finding. State v. Brown, 82 Or App 256, 728 P2d 534 (1986)

Even if all report discloses is that defendant was uncooperative and that psychiatric analysis could not be made, that does not render report insufficient for purposes of this statute. State v. Pryor, 96 Or App 181, 772 P2d 431 (1989), Sup Ct review denied; State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Statements made during psychiatric evaluation pursuant to this provision may not be used for sentencing purposes. U.S. v. Harrington, 923 F2d 1371 (9th Cir. 1991)

After finding defendant is dangerous offender under this section and ORS 161.725, sentencing court may not sentence defendant to determinate term under ORS 137.635. State v. Reese, 114 Or App 557, 836 P2d 737 (1992)

161.737

NOTES OF DECISIONS

Where presumptive sentence could be determined from the record, trial court complied with statutory requirement to indicate presumptive sentence in written judgment. State v. Warren, 122 Or App 334, 857 P2d 876 (1993), Sup Ct review denied

Pre-1993 dangerous offender sentence is departure sentence within sentencing guidelines. State v. Davis, 315 Or 484, 847 P2d 834 (1993). But see State v. Coburn, 146 Or App 653, 934 P2d 579 (1997)

Entire indeterminate term of pre-1993 dangerous offender statute is incarceration term subject to limitations on consecutive sentences. State v. Davis, 315 Or 484, 847 P2d 834 (1993). But see State v. Coburn, 146 Or App 653, 934 P2d 579 (1997)

Where trial court imposed determinate sentence on defendant and sentence was more than 400% of presumptive sentencing grid block set out in sentencing guidelines, sentence was beyond legal limit because “400% rule” that limits upward departure of sentencing to no more than 400% of presumptive sentence applies to determinate sentences when trial court imposes sentence enhancement discretion under this section. State v. Worth, 274 Or App 1, 360 P3d 536 (2015), Sup Ct review denied