Chapter 167

 

      Chapter 167

 

ATTY. GEN. OPINIONS: Exemption of nuisance laws from constitutional requirement for payments based on government regulations restricting use of property, (2001) Vol 49, p 284

 

LAW REVIEW CITATIONS: 51 OLR 427-637 (1972)

 

      167.002 to 167.027

 

LAW REVIEW CITATIONS: 51 OLR 428, 435, 523 (1972)

 

      167.002

 

NOTES OF DECISIONS

 

      Where city’s mandatory minimum penalty is harsher than state’s for same conduct, city’s penalty is invalid under Article XI, Section 2 of Oregon Constitution as incompatible with state criminal law. City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986)

 

LAW REVIEW CITATIONS: 50 WLR 115 (2013)

 

      167.007

 

NOTES OF DECISIONS

 

      Absent evidence that defendant offered to engage in sexual conduct for a fee, defendant could not be found guilty of attempt to commit prostitution within meaning of ORS 161.405. State v. Brown, 31 Or App 501, 570 P2d 1001 (1977)

 

      Complaint which alleged that defendants did “offer and agree to engage in sexual conduct in return for a fee” stated facts sufficient to state a crime. State v. East, 31 Or App 743, 571 P2d 195 (1977)

 

      Complaint was not defective for failing to allege that defendant “intentionally” agreed to pay fee for sexual conduct. State v. Huie, 292 Or 335, 638 P2d 480 (1982)

 

      Where city’s mandatory minimum penalty is harsher than state law minimum for same conduct, city’s penalty is invalid under Article XI, Section 2 of Oregon Constitution as incompatible with state criminal law. City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986)

 

      This section falls within historical exception to section 8, Article I of Oregon Constitution, which that provision demonstrably was not intended to reach. State v. Grimes, 85 Or App 159, 735 P2d 1277 (1987), Sup Ct review denied

      For venue purposes, offer or agreement transmitted over telephone simultaneously occurs where each party to conversation is located. State v. Harris, 242 Or App 438, 256 P3d 156 (2011), Sup Ct review denied

 

      “Fee” means something that has economic value and that is exchanged in a transaction that is commercial in character. State v. Palomo, 256 Or App 498, 301 P3d 439 (2013)

 

LAW REVIEW CITATIONS: 55 OLR 553-566 (1976); 50 WLR 115 (2013)

 

      167.012

 

NOTES OF DECISIONS

 

      Actions of manager of “adult theater” in paying man and woman to perform sex acts before audience constituted violation of this section. State v. Kravitz, 14 Or App 243, 511 P2d 844 (1973), Sup Ct review denied

 

      The corroboration requirement must be met for a conviction for the inchoate crime of attempting to promote prostitution. State v. Montgomery, 26 Or App 817, 554 P2d 578 (1976)

 

      Conviction under this section merged with conviction under charge of compelling prostitution (ORS 167.017) where same evidence was used to convict defendant of both crimes. State v. Williams, 40 Or App 227, 594 P2d 1281 (1979)

 

      Where evidence proving promoting prostitution was part of larger body of evidence proving attempted compelling prostitution, it was error for trial court to separately convict defendant for both promoting prostitution (under this section) and attempted compelling prostitution (under ORS 167.017). State v. Barnett, 42 Or App 69, 600 P2d 877 (1979)

 

      Application of this section to live show does not conflict with section 8, Article I of Oregon Constitution, because focus is on preventing harmful effects of prostitution without regard to presence or absence of circumstances adding expressive element to conduct. State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005)

 

COMPLETED CITATIONS: State v. Leach, 6 Or App 154, 487 P2d 114 (1971)

 

      167.017

 

NOTES OF DECISIONS

 

      Though initial instruction in prosecution under this section was abstract means of instructing jury that minor’s consent is not defense to compelling prostitution, reinstruction directly stated applicable law and removed confusion of initial instruction. State v. Wood, 34 Or App 569, 579 P2d 294 (1978), Sup Ct review denied

 

      Evidence that, inter alia, defendant prevailed on minors to engage in prostitution by providing them the opportunity and manipulating them was sufficient for conviction under this section and no showing of threats or force was required. State v. Williams, 40 Or App 227, 594 P2d 1281 (1979)

 

      Where evidence proving promoting prostitution was part of larger body of evidence proving attempted compelling prostitution, it was error for trial court to separately convict defendant for both promoting prostitution (under ORS 167.012) and attempted compelling prostitution (under this section). State v. Barnett, 42 Or App 69, 600 P2d 877 (1979)

 

      Where evidence supported inference that defendant’s purpose was, at minimum, to compel another into prostitution, that satisfies requirements of this section. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992)

 

      Terms “induce” and “compel” apply to third party promoter of prostitution and do not apply to patron of prostitute. State v. Vargas-Torres, 237 Or App 619, 242 P3d 619 (2010)

 

LAW REVIEW CITATIONS: 51 OLR 430 (1972); 50 WLR 115 (2013)

 

      167.027

 

LAW REVIEW CITATIONS: 51 OLR 523 (1972)

 

      167.054

 

NOTE: Repealed as of August 2, 2011

 

NOTES OF DECISIONS

 

      This provision is overbroad and violative of First Amendment. Powell’s Books, Inc. v. Kroger, 622 F3d 1202 (9th Cir. 2010)

 

      167.057

 

NOTES OF DECISIONS

 

      2010 version of this provision is overbroad and violative of First Amendment. Powell’s Books, Inc. v. Kroger, 622 F3d 1202 (9th Cir. 2010)

 

      Where defendant sent victim text message stating defendant wished to “bang” victim, defendant’s text was explicit verbal description of sexual conduct for purposes of this section because text included explicit identification of sexual conduct that intended to bring graphic sexual image to mind of recipient. State v. King, 278 Or App 65, 373 P3d 1205 (2016)

 

      167.060 to 167.100

 

NOTES OF DECISIONS

 

      Prohibitions against obscene live performance or distribution of obscene material do not violate federal or state constitutional right of free speech. Film Follies v. Haas, 22 Or App 365, 539 P2d 669 (1975)

 

      In a federal obscenity prosecution, it was a question for the trial court whether the people of Oregon approved of conduct then permitted by these sections, or whether community standards were at variance with these sections. U.S. v. Danley, 523 F2d 369 (1975)

 

LAW REVIEW CITATIONS: 51 OLR 428, 429, 523, 537-552, 556 (1972)

 

      167.060

 

LAW REVIEW CITATIONS: 53 OLR 375 (1974)

 

      167.062

 

NOTES OF DECISIONS

 

      State is not required to prove that performance violates standards applicable to establish material as obscene. State v. Tidyman, 54 Or App 640, 635 P2d 1355 (1981), Sup Ct review denied

 

      Proof only that show spectators touched defendant while placing money in defendant’s costume was not adequate to show defendant was apparently sexually stimulated or gratified. State v. House, 299 Or 78, 698 P2d 951 (1985)

 

      This section is facially invalid under section 8, Article I of Oregon Constitution. State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005)

 

      167.080

 

LAW REVIEW CITATIONS: 53 OLR 390 (1974)

 

      167.085

 

NOTES OF DECISIONS

 

      State has the burden of proving elements of obscenity beyond a reasonable doubt. Film Follies v. Haas, 22 Or App 365, 539 P2d 669 (1975)

 

      Defense available for certain instances of “showing, exhibition or display” of obscene materials to minors is insufficient to prevent prohibitory statute ([former] ORS 167.065) from being overbroad because defense does not reach all protected actions constituting “furnishing” of obscene materials under [former] ORS 167.065. State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review denied

 

LAW REVIEW CITATIONS: 55 OLR 383-391 (1976)

 

      167.090

 

LAW REVIEW CITATIONS: 53 OLR 390 (1974)

 

      167.100

 

ATTY. GEN. OPINIONS: Ordinance prohibiting public nudity not preempted, (1976) Vol 38, p 230

 

      167.117 to 167.162

 

ATTY. GEN. OPINIONS: Construing provisions against promotion of social gambling, (1971) Vol 35, p 1004

 

      167.117

 

NOTES OF DECISIONS

 

      The legislature did not intend free play pinball machines which are used as payoff gambling devices to be immune from seizure under ORS 167.162. State v. Wright, 21 Or App 659, 537 P2d 130 (1975)

 

      Principal evil legislature sought to prevent by this section was “taking over” of operation of bingo games on behalf of charitable organizations by other organizations specializing in operating such activities for profit and who would charge fee or collect percentage for their work. State v. Johnston, 56 Or App 849, 643 P2d 666 (1982), Sup Ct review denied

 

      Where defendant promoted bingo game sponsored by fraternal organization in which members of chapter were paid daily wage to assist, games were unlawful gambling not included in exception of this section for games in which no person other than organization or player profits. State v. Johnston, 56 Or App 849, 643 P2d 666 (1982), Sup Ct review denied

 

      “Free play” electric game machines are not “gambling devices” even though patrons were given cash rather than free plays. State v. Langan, 293 Or 654, 652 P2d 800 (1982)

 

      Where defendants, club employees, received tips from poker games, games were not social games but illegal gambling. State v. Hansen, 108 Or App 609, 816 P2d 706 (1991)

 

ATTY. GEN. OPINIONS: Authority of charitable organizations to conduct lottery and other games for profit, (1974) Vol 37, p 321; authority of cities to regulate free play pinball machines, (1975) Vol 37, p 740; effect of Constitutional amendment authorizing legislature to adopt legislation which permits certain organizations to conduct gambling, (1977) Vol 38, p 857; income resulting from setting up game and bankrolling participant as legitimate income from social game, (1977) Vol 38, p 1455; operation of “pull tab bingo” by charitable corporation, (1981) Vol 41, p 309

 

      167.122

 

NOTES OF DECISIONS

 

      An indictment merely using the language of this section, “knowingly promote unlawful gambling,” is sufficient. State v. Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review denied

 

      It was not necessary that defendant have actual knowledge that what he did was illegal to sustain the conviction under this section. State v. Wright, 21 Or App 659, 537 P2d 130 (1975)

 

      Where defendant promoted bingo game sponsored by fraternal organization in which members of chapter were paid daily wage to assist, games were unlawful gambling not included in exception of ORS 167.117 for games in which no person other than organization or player profits. State v. Johnston, 56 Or App 849, 643 P2d 666 (1982), Sup Ct review denied

 

      A defendant’s guilt requires knowledge of facts and conditions that make gambling unlawful, rather than mere knowledge of gambling itself. State v. Langan, 293 Or 654, 652 P2d 800 (1982)

 

      Complaint charging defendant with promoting gambling in second degree was insufficient to survive demurrer when complaint merely mirrored language of statute and contained no identifying facts or acts. State v. Cooper, 78 Or App 237, 715 P2d 504 (1986)

 

      Tavern owner’s conviction under this section was reversed where third person paid patron of tavern for free games won on video poker machine, tavern owner did not arrange for that purchase, and there was no evidence that tavern owner was aware that third person had ever previously paid patrons for free games. State v. Ferracini, 105 Or App 420, 805 P2d 149 (1991)

 

      167.132

 

NOTES OF DECISIONS

 

      Requirement of “knowledge of the contents thereof” saves this section from unconstitutionality for vagueness. State v. Yancey, 32 Or App 477, 574 P2d 358 (1978)

 

      Where cards seized as evidence of gambling violation appeared to be kind of unvalidated merchandise token, court permitted return of portion of cards to defendant since it was not certain that such cards were of type used for lottery purposes. State v. Terry, 37 Or App 333, 587 P2d 1033 (1978)

 

      167.147

 

NOTES OF DECISIONS

 

      Employment contract, which required employe to design and produce devices which would be used for gambling, constituted contract for illegal purpose and was thus unenforceable as against public policy. Hendrix v. McKee, 281 Or 123, 575 P2d 134 (1978)

 

      “Free play” electric game machines are not “gambling devices” even though patrons were given cash rather than free plays. State v. Langan, 293 Or 654, 652 P2d 800 (1982)

 

COMPLETED CITATIONS: State v. Wheelhouse, 6 Or App 151, 486 P2d 1292 (1971)

 

      167.162

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 167.555)

 

      This section did not require that a machine be unlawful per se, but only that it be operated unlawfully. Smith v. One Super Wild Cat Console Mach., 10 Or App 587, 500 P2d 498 (1972), Sup Ct review denied

 

In general

 

      Machines which are mechanically free play “amusement devices” but used as gambling devices under ORS 167.117 (4) are subject to seizure under this section. State v. Wright, 21 Or App 659, 537 P2d 130 (1975)

 

      167.207

 

COMPLETED CITATIONS: State v. O’Brien, 6 Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d 262 Or 30, 496 P2d 191 (1972); State v. Williams, 6 Or App 189, 487 P2d 100 (1971), Sup Ct review denied

 

      167.212

 

NOTES OF DECISIONS

 

      Where defendant twice offered prescription to pharmacist, knowing person named in prescription did not exist, he uttered false prescription under this section. State v. Vaughn, 37 Or App 191, 586 P2d 804 (1978), Sup Ct review denied

 

      167.222

 

NOTES OF DECISIONS

 

      Evidence that defendant entered residence five minutes before police arrived, for purpose of negotiating repair of car, that large quantity of hashish was contained in covered boxes on table within residence, and that defendant suspected that plastic bag on table did contain drugs, was insufficient to show that defendant knowingly remained in a place resorted to by drug users. State v. West, 31 Or App 1177, 572 P2d 349 (1977)

 

      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)

 

      Evidence that defendant was asleep in his underwear on second floor of house, that house was heavily fortified, that drugs had been sold in house and that another person was found flushing drugs down toilet on first floor while defendant slept upstairs constituted probable cause that defendant remained in house and permitted drug use on premises within meaning of this section. State v. Anderson, 95 Or App 178, 768 P2d 427 (1989)

 

      Frequenting place where controlled substances are used is not lesser included offense of unlawful possession of controlled substance. State v. Martz, 103 Or App 105, 795 P2d 616 (1990)

 

      Commission of violation requires that premises were location where principal or substantial purpose was commercial sale or use of illegal drugs and that defendant had legal authority over location where illegal drugs were sold, had actual knowledge of sale, and permitted sale. State v. Van Osdol, 290 Or App 902, 417 P3d 488 (2018)

 

      167.238

 

NOTES OF DECISIONS

 

      Presumption that person possessing controlled substance knows nature of substance does not require that jury consider knowledge established unless disproved by defendant, but merely states rule that jury may choose to infer guilty knowledge from fact of possession. State v. Offord, 14 Or App 195, 512 P2d 1375 (1973)

 

      167.247

 

NOTE: Repealed July 23, 1997; ORS 167.248 enacted in lieu

 

      See annotations under ORS 167.248.

 

      167.248

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 167.247)

 

      The decision of a court responsible for the trial of a criminal defendant to release a vehicle seized pursuant to this section to the defendant is not subject to collateral attack by the state. State v. A 1963 Corvette Auto., 10 Or App 630, 501 P2d 330 (1972)

 

      A court responsible for the trial of a criminal defendant has concurrent jurisdiction over a vehicle seized pursuant to this section to decide the forfeiture question. State v. A 1963 Corvette Auto., 10 Or App 630, 501 P2d 330 (1972)

 

      A vehicle may be forfeited under this section if the owner had knowledge that it was transporting contraband; the owner need not be convicted of possession of the contraband. Blackshear v. State, 17 Or App 364, 521 P2d 1320 (1974)

 

      The state is not required to move for forfeiture in the criminal proceeding but rather may choose to proceed on a separate civil action. State ex rel Haas v. Ore. 1965 Ford Auto., Ore. License No. HBH029, 19 Or App 879, 529 P2d 410 (1974), Sup Ct review denied

 

      Where vehicle was seized pursuant to this section forfeiture took effect immediately, and thus attempted subsequent transfer of lien interest in the vehicle could not prevail. State v. Crampton, 30 Or App 779, 568 P2d 680 (1977) Sup Ct review denied

 

      Where state produced no evidence to support finding that automobile confiscated in connection with search of defendant’s home, where illegal drugs were discovered, was used for unlawful transportation of narcotics, state had no right to automobile. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup Ct review denied

 

      Police letter to defendant’s home, which was mailed on same day as state’s ex parte motion to confiscate automobile was granted, and which did not inform defendant of time or place of hearing to be held on confiscation of his automobile, was insufficient as notice. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup Ct review denied

 

      Defendant, arrested with cocaine in motor vehicle, was entitled to jury trial on issues of unlawful transportation or concealment of controlled substances and such use of vehicle by or with knowledge as vehicle owner. State v. Curran, 291 Or 119, 628 P2d 1198 (1981)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 167.247)

      25 WLR 456 (1989); 69 OLR 170 (1990)

 

      167.322

 

NOTES OF DECISIONS

 

      Evidence showing nonmalicious motivation for killing animal is not character evidence. State v. Dan, 172 Or App 645, 20 P3d 829 (2001)

 

      167.325

 

NOTES OF DECISIONS

 

      Evidence that defendant lived in home, fed dogs, took dogs to veterinary visits, was part of decision-making about whether to keep dogs and exercised power over dogs by breaking up dog fights, was sufficient for reasonable juror to find defendant had “control” over dogs for purpose of this statute. State v. Crosswhite, 273 Or App 605, 359 P3d 529 (2015)

 

      167.345

(formerly 167.860)

 

NOTES OF DECISIONS

 

      This section and [former] ORS 167.850 are related in the nature of establishing different degrees of the same crime and are constitutional. Oregon Game Fowl Breeders v. Smith, 15 Or App 487, 516 P2d 499 (1973), Sup Ct review denied

 

      167.347

 

NOTES OF DECISIONS

 

      Forfeiture proceeding initiated during criminal action is special statutory proceeding that is separate and distinct from pending criminal action. State v. Branstetter, 332 Or 389, 29 P3d 1121 (2001)

 

      Appeal from forfeiture order does not deprive trial court of jurisdiction to proceed to trial on criminal matter that was predicate to initiation of forfeiture action. State v. Branstetter, 332 Or 389, 29 P3d 1121 (2001)

 

      Justice of peace having jurisdiction over pending criminal action under ORS 167.315 to 167.333 or 167.340 also has jurisdiction over animal forfeiture proceeding. Stirton v. Trump, 202 Or App 252, 121 P3d 714 (2005)

 

      167.350

 

NOTES OF DECISIONS

 

      Under 1999 version of statute, authority of court to order repayment of reasonable costs incurred in caring for each animal “subjected to abuse, neglect or abandonment” was limited to costs related to specific animals that were subject of crimes for which convictions were entered. State v. Marsh, 187 Or App 47, 66 P3d 541 (2003)

 

      167.355

 

NOTES OF DECISIONS

 

      Section not overbroad because more than gathering to discuss cockfighting is required to constitute promotion, preparation or participation in cockfighting. State v. Albee, 118 Or App 212, 847 P2d 858 (1993), Sup Ct review denied

 

      167.860

 

      See annotations under ORS 167.345.