Chapter 163

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

163.005 to 163.145

LAW REVIEW CITATIONS: 51 OLR 459-493 (1972)

163.005

NOTES OF DECISIONS

Where defendant is charged with felony murder, culpable mental state for criminal homicide is established by commission of or attempt to commit predicate felony. State v. Blair, 230 Or App 36, 214 P3d 47 (2009), aff’d 348 Or 72, 228 P3d 564 (2010)

LAW REVIEW CITATIONS: 51 OLR 590 (1972); 10 WLJ 156 (1974)

163.095

NOTES OF DECISIONS

In general

Charging a person under multiple victim provision of this section does not require that there be a prior commission of murder. State v. Norris, 40 Or App 505, 595 P2d 1261 (1979), Sup Ct review denied

Where defendant was charged with aggravated felony murder, defense of mental disease or defect was only relevant to underlying felony, rape or sodomy. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied

Indictment which charged that defendant, in course of committing robbery, “did cause the death of another human being by shooting him” was sufficient to charge aggravated murder. State v. Cohen, 289 Or 525, 614 P2d 1156 (1980)

Fact that state may choose to prosecute defendant accused of personally committing homicide under this section or ORS 163.115 does not by itself violate Article I, Section 20 of Oregon Constitution or Fourteenth Amendment to United States Constitution. State v. Reynolds, 289 Or 533, 614 P2d 1158 (1980)

Where defendant was indicted for aggravated murder under this section, conviction on stipulated facts for intentional murder under ORS 163.115 did not violate defendant’s due process rights. Riley v. Cupp, 56 Or App 467, 642 P2d 333 (1982), Sup Ct review denied

Unanimous verdict on aggravated murder conviction is not invalidated by less than unanimous verdict on underlying felony because this section does not require completion of underlying felony and because the two deliberations involve separate and independent questions. State v. Watkins, 67 Or App 657, 679 P2d 882 (1984), Sup Ct review denied

Under this section, term “witness in a criminal proceeding” includes one who has not yet been subpoenaed, but whose testimony is desired in criminal proceeding or grand jury investigation. State v. Maney, 297 Or 620, 688 P2d 63 (1984)

Term “torture” is not unconstitutionally vague. State v. Cornell/Pinnell, 304 Or 27, 741 P2d 501 (1987)

Constitutional challenge on basis that it imposed more severe penalty for murder committed by individual on escape status than penalty imposed on individual in process of escaping and that penalty for murder committed by escapee is not proportionate to offense was improper as section does not impose any penalty but merely defines crime. State v. McDonnel, 84 Or App 278, 733 P2d 935 (1987), Sup Ct review denied

When multiple murders occur in course of same criminal episode there may be as many counts of aggravated murder as there are victims. State v. Fuller, 90 Or App 158, 750 P2d 1209 (1988)

Instruction to jury must provide for jury to agree on factual circumstance that made homicide aggravated murder as distinct from murder. State v. Boots, 308 Or 371, 780 P2d 725 (1989); State v. Lotches, 331 Or 455, 17 P3d 1045 (2000)

Requirement of this section that murder be committed “in an effort to conceal the commission of a crime” is not impermissibly vague because legislature failed to define “conceal” or “effort.” State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Because statutory requirements for simple felony murder and aggravated murder by concealment are distinguishable, prosecutorial charging discretion is adequately limited. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

As used in this section, “personally” has its common meaning and defendant committed homicide when he restrained victim to allow confederate to deliver death blow, evidence established that defendant actively, personally and intentionally committed murder of victim. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where prosecutor’s argument implied nothing about victim’s personal characteristics or reputation, or about effect of death on his family or society but focused entirely on defendant’s state of mind as evidenced by nature and brutality of murder, prosecutor’s suggestion to jurors that they compare photographs of victim alive and after death was proper argument on essential element of state’s case. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Indictment for aggravated murder need not specify elements of underlying felony. State v. Montez, 309 Or 564, 789 P2d 1352 (1990); State v. Rogers, 313 Or 356, 836 P2d 1308 (1992); State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993), on reconsideration126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

Trial court’s error in instructing jury that jurors need not agree unanimously on factual circumstances that made homicide aggravated murder did not require reversal where all jurors agreed that defendant committed murder in course and furtherance of robbery in first degree. State v. Rose, 311 Or 274, 810 P2d 839 (1991)

Trial court may not enter conviction for both aggravated felony murder and underlying felony. State v. Wille, 115 Or App 47, 839 P2d 712 (1992), aff’d on other grounds, 317 Or 487, 858 P2d 128 (1993)

Legislature did not include language specifically providing for affirmative defense of extreme emotional disturbance under this statute, which is provided for under ORS 163.115; therefore extreme emotional disturbance is not a defense to aggravated murder. State v. Hessel, 117 Or App 113, 844 P2d 209 (1992), Sup Ct review denied; State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Phrase “state . . . correctional facility” refers to facility in any state, not just Oregon. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Provision of this section concerning escape from penal facilities is not unconstitutionally vague. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Combination of statutory definition of aggravated murder while an escapee and sentencing provisions of ORS 163.105 did not create unconstitutionally disproportionate sentence. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Crime of intentional murder is “necessarily included” in crime of aggravated murder. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Terms “confined” and “otherwise in custody” are not unconstitutionally vague. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Evidence of intentional asphyxiation alone is not evidence of torture. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Where jury could infer either that defendant applied binding around face with intent to cause intense painful muscle cramping or defendant purposefully kept victim alive for lengthy period of time with intent that victim suffer unrelieved and escalating pain, jury could find beyond reasonable doubt that defendant intended to inflict intense physical pain before asphyxiating victim. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Defendant on pass away from Oregon State Hospital could not be convicted on charges that defendant committed murder while “confined” in Oregon correctional facility. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Where jury may not have been unanimous on theory supporting aggravated murder conviction, retrial only on theory issue was proper. State v. Boots, 315 Or 572, 848 P2d 76 (1993)

Where referring to intentional commission of felony murder “intentionally” has same meaning as under ORS 161.085 defining term for purposes of culpability. State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Witness in juvenile delinquency proceeding is not witness in “criminal proceeding.” State v. Thompson, 166 Or App 370, 998 P2d 762 (2000), Sup Ct review denied

Where there are multiple victims of single criminal episode of attempted aggravated murder, there are as many counts of attempted aggravated murder as there are victims. State v. Goltz, 169 Or App 619, 10 P3d 955 (2000), Sup Ct review denied

Violation of multiple listed predicate offenses against single victim provides grounds for single conviction for multiple counts of aggravated murder but does not create grounds for multiple aggravated murder convictions. State v. Barrett, 331 Or 27, 10 P3d 901 (2000)

State is not required to allege in indictment that murder was committed deliberately. State v. Terry, 333 Or 163, 37 P3d 157 (2001); State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Application of intentional mental state required for act of maiming or torturing victim in pari materia with reckless mental state required for murder by abuse does not create unconstitutional vagueness regarding mental state required to convict for aggravated murder by abuse resulting from or in course of maiming or torturing victim. State v. Compton, 333 Or 274, 39 P3d 833 (2002)

Where defendant is charged with committing aggravated murder to conceal commission of crime or conceal identity of perpetrator, and more than one alleged crime or perpetrator is involved, conviction requires that jury agree unanimously on theory regarding predicate crime or identity of perpetrator. State v. Hale, 335 Or 612, 75 P3d 448 (2003)

Finding that homicide occurred during course of intentional maiming of victim requires that defendant have separate intent to maim victim apart from intent to cause death. State v. Garner, 194 Or App 268, 94 P3d 163 (2004), Sup Ct review denied

Finding that defendant committed aggravated murder personally and intentionally does not require that murder conviction based on same event be for intentional murder. State v. Ventris, 337 Or 283, 96 P3d 815 (2004)

Where jury could not reach verdict on aggravated murder, but acquitted defendant of lesser included offense of intentional murder, federal double jeopardy protection prevented retrial for aggravated murder. Wilson v. Czerniak, 355 F3d 1151 (9th Cir. 2004)

Conviction for murder under any theory merges with conviction for aggravated murder of same victim under any theory. State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), Sup Ct review denied

Person who “personally and intentionally” commits felony murder can be convicted of aggravated murder. State v. Dasa, 234 Or App 219, 227 P3d 228 (2010), Sup Ct review denied

Pre-2005 amendments

To “personally” commit crime of homicide, defendant must directly engage in physical act of homicide. State v. Link, 346 Or 187, 208 P3d 936 (2009)

ATTY. GEN. OPINIONS: Repeal by implication by Ballot Measure 8 providing death penalty under certain circumstances, (1978) Vol 39, p 419

LAW REVIEW CITATIONS: 17 WLR 649 (1981); 18 WLR 180 (1982)

163.103

NOTES OF DECISIONS

Defendant’s constitutional rights were not violated by requiring that he choose between stipulating to prior murder conviction or having it admitted as evidence of trial. State v. Earp, 69 Or App 365, 686 P2d 437 (1984), Sup Ct review denied

LAW REVIEW CITATIONS: 18 WLR 184 (1982)

163.105

NOTES OF DECISIONS

Where defendant was charged, under ORS 163.115, with intentionally causing death of victim, initiative which amended ORS 163.115 to require person sentenced for murder to serve 25 years before becoming eligible for parole did not conflict with this section and did not impliedly repeal penalty provisions of this section. State v. Shumway, 291 Or 153, 630 P2d 796 (1981)

Mandatory minimum sentence with no possibility of parole does not violate Article I, section 15 of the Oregon Constitution. Norris v. Cupp, 67 Or App 393, 678 P2d 756 (1984), Sup Ct review denied

This section does not violate equal protection by virtue of aggravated felony murder statute requiring additional element of personal commission of homicide. Grooms v. Kenney, 826 F2d 883 (1987)

Combination of statutory definition of aggravated murder while an escapee under ORS 163.095 and sentencing provisions of this section did not create unconstitutionally disproportionate sentence. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Whether petitioner will serve consecutive sentences has no bearing on timing of rehabilitation hearing. Severy v. Board of Parole, 118 Or App 585, 848 P2d 1214 (1993), aff’d 318 Or 172, 864 P2d 368 (1993)

Board of Parole lacks authority to unsum consecutive sentences for aggravated murder except by sentence review hearing conducted 20 years or more after imposition of 30-year minimum sentence. Severy v. Board of Parole, 318 Or 172, 864 P2d 368 (1993)

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

Under 1977 version of this section, prisoner who serves judicially imposed minimum sentence remains ineligible for parole, work release, temporary leave or employment at forest or work camp unless State Board of Parole and Post-Prison Supervision determines prisoner is capable of rehabilitation. Larsen v. Board of Parole and Post-Prison Supervision, 191 Or App 526, 84 P3d 176 (2004), Sup Ct review denied

Where court imposes life sentence without possibility of parole to be served consecutively to death sentence, court has not “deferred” life sentence. State v. Running, 336 Or 545, 87 P3d 661 (2004)

Requirement that proceeding be conducted in manner prescribed for contested case creates limited exception to parole board’s exemption from Administrative Procedures Act. Larsen v. Board of Parole and Post-Prison Supervision, 206 Or App 353, 138 P3d 16 (2006)

Under 1981 version of this section, where prisoner is serving consecutive sentences for aggravated murder and different offense, finding that prisoner is likely to be rehabilitated does not result in prisoner beginning service of consecutive sentence. Corgain v. Board of Parole and Post-Prison Supervision, 213 Or App 407, 162 P3d 990 (2007)

Person who was juvenile less than 17 years of age at time of murder committed on or after November 1, 1989, and before April 1, 1995, is not subject to 30-year minimum sentence. Engweiler v. Board of Parole, 343 Or 536, 175 P3d 408 (2007)

Under 2002 version of statute, judicial review of murder review hearings is governed by specific provision that governs procedures for appealing decisions of Board of Parole and Post-Prison Supervision, not Administrative Procedure Act provisions that govern procedures for appealing contested case hearings. Larsen v. Board of Parole and Post-Prison Supervision, 231 Or App 59, 219 P3d 28 (2009), Sup Ct review denied

1985 version of statute requires Board of Parole, when determining release date for prisoner sentenced to life imprisonment with possibility of parole, to use parole matrix that was in place when prisoner committed offense. Janowski/Fleming v. Board of Parole, 349 Or 432, 245 P3d 1270 (2010)

Under 1985 version of statute, terms of confinement that must be changed to life imprisonment with possibility of parole include prohibition on eligibility for parole for mandatory minimum period of confinement, requirement that certain periods of confinement be served consecutively and any other condition applicable to period of confinement. Severy/Wilson v. Board of Parole, 349 Or 461, 245 P3d 119 (2010)

ATTY. GEN. OPINIONS: Repeal by implication by Ballot Measure 8, providing death penalty under certain circumstances, (1978) Vol 39, p 419

LAW REVIEW CITATIONS: 17 WLR 649 (1981); 18 WLR 190 (1982); 36 WLR 313 (2000)

163.115

NOTES OF DECISIONS

Under former similar statute (ORS 163.010)

Where the only felony committed (apart from the murder) was the assault upon the victim which resulted in the killing, the assault merged with the killing and could not be an ingredient of a felony-murder. State v. Shirley, 7 Or App 166, 488 P2d 1401 (1971), Sup Ct review denied

Murder indictment charging failure to provide “adequate sustenance, and medical and hygienic care” was sufficiently particular. State v. House, 260 Or 138, 489 P2d 381 (1971)

Where the single crime of first degree murder is charged it was not error to instruct the jury that guilt may be established under either the felony-murder theory or premeditated murder theory; it was immaterial that some members of the jury may have believed him guilty of premeditated murder while others may have believed him guilty of felony-murder. State v. Hazelett, 8 Or App 44, 492 P2d 501 (1972), Sup Ct review denied

In general

Pre-1975 amendments

Defense of extreme emotional disturbance is question for trier of fact if there is sufficient evidence to reasonably support inference which excludes defense. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

Expert testimony is not indispensable to disproving defense of extreme emotional disturbance. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

Defense of extreme emotional disturbance is not an affirmative and thus according to ORS 161.055 the state has burden of disproving it beyond reasonable doubt. State v. Siens, 12 Or App 97, 504 P2d 1056 (1973), Sup Ct review denied

This section does not require that “extreme emotional disturbance” be caused by an “unexpected and provocative event.” State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

Admission into evidence of death threats made month previous to homicide charged were held not to be in error because they tended to show defendant’s indifferent attitude toward human life. State v. Gardner, 16 Or App 464, 518 P2d 1341 (1974), Sup Ct review denied

In order to convict defendant of murder, jury must find beyond reasonable doubt the nonexistence of “extreme emotional disturbance.” State v. McCoy, 17 Or App 155, 521 P2d 1074 (1974), aff’d 270 Or 340, 527 P2d 725 (1974)

Reckless murder could arise from attack on specific individual. State v. Draves, 18 Or App 248, 524 P2d 1225 (1974), Sup Ct review denied

Pre-1977 amendments

“Extreme emotional disturbance” becomes issue in murder prosecution when there is evidence at trial that raises it. State v. Keys, 25 Or App 15, 548 P2d 205 (1976)

Pre-1979 amendments

Where defendant was indicted for aggravated murder under ORS 163.095, conviction on stipulated facts for intentional murder did not violate defendant’s due process rights. Riley v. Cupp, 56 Or App 467, 642 P2d 333 (1982), Sup Ct review denied

Pre-1981 amendments

Since, under this section, defendant could receive lesser minimum sentence for aggravated intentional murder than for unaggravated intentional murder, provision of this section requiring defendant to serve 25 years before becoming eligible for parole was invalid under Article I, Section 15 of the Oregon Constitution. State v. Shumway, 291 Or 153, 630 P2d 796 (1981)

When defense is extreme emotional disturbance, jury should be instructed on meaning of whole term rather than singling out word “extreme” for amplification. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Point of extreme emotional disturbance defense is to provide basis for mitigation that differs from finding of mental defect or disease to such extent as altogether to preclude criminal responsibility. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Where defense is “extreme emotional disturbance” trial court’s instructions to jury must contain five specified elements. State v. Ott, 297 Or 375, 686 P2d 1001 (1984)

Pre-1985 amendments

Affirmative defense of extreme emotional disturbance is separate and independent from elements state must prove to obtain murder conviction and accordingly does not violate due process clause of federal constitution. State v. Lyon, 65 Or App 790, 672 P2d 1358 (1983)

Affirmative defense to felony murder, requiring defendant to prove he was not armed with dangerous weapon, did not require him to disprove element of robbery charge that defendant or his accomplices were armed with dangerous weapon and related jury instruction did not unconstitutionally transfer to defendant burden of proof for element of underlying crime. Burrow v. Cupp, 787 F2d 1346 (1986)

This section does not violate equal protection by virtue of aggravated felony murder statute requiring additional element of personal commission of homicide. Grooms v. Kenney, 826 F2d 883 (1987)

Pre-1995 amendments

Required and discretionary minimum terms of confinement for person receiving life sentence constitute “mandatory minimum sentence” as used in ORS 161.620. State v. Jones, 315 Or 225, 844 P2d 188 (1992)

Sentencing guidelines do not impliedly repeal those parts of murder statute authorizing 10-year sentence with additional 15-year sentence. State v. Morgan, 316 Or 553, 856 P2d 612 (1993); State v. Hostetter, 125 Or App 491, 865 P2d 485 (1993), Sup Ct review denied

Enactment of sentencing guidelines in 1989 impliedly repealed indeterminate life sentence for murder. State v. Morgan, 316 Or 553, 856 P2d 612 (1993); State v. Hostetter, 125 Or App 491, 865 P2d 485 (1993), Sup Ct review denied

Under 1991 version of statute, “imprisonment for life” means imprisonment for indeterminate number of years and subsequent lifetime term of post-prison supervision. Jones v. Board of Parole and Post-Prison Supervision, 231 Or App 256, 218 P3d 904 (2009), Sup Ct review denied

Pre-1999 amendments

1995 amendment revived and reenacted indeterminate life sentence for murder. State v. Francis, 154 Or App 486, 962 P2d 45 (1998), Sup Ct review denied

Requirement that murder be punished by mandatory imprisonment for life without providing parole mechanism was unconstitutionally disproportionate in comparison to penalty of life imprisonment with possibility of parole for greater crime of aggravated murder. State v. McLain, 158 Or App 419, 974 P2d 727 (1999), but see State v. Davis, 216 Or App 456, 174 P3d 1022 (2007), Sup Ct review denied

Requirement that minimum sentence be without possibility of parole is nondiscretionary ameliorative provision applicable to sentencing of defendant on remand, notwithstanding that resulting sentence may be longer than original sentence. State v. Davis, 216 Or App 456, 174 P3d 1022 (2007), Sup Ct review denied

Generally

Indictment alleging commission of crime by particular means sufficiently alerts defendant of charge to permit conviction based on alternative means of committing same crime. State v. Draves, 18 Or App 248, 524 P2d 1225 (1974), Sup Ct review denied; State v. Davis, 23 Or App 331, 541 P2d 1404 (1975), Sup Ct review denied

Defendant cannot be sentenced for both felony murder and underlying felony. State v. Fish, 282 Or 53, 577 P2d 500 (1978)

Fact that state may choose to prosecute defendant accused of personally committing homicide under this section or ORS 163.095 does not by itself violate Article I, Section 20 of Oregon Constitution or Fourteenth Amendment to United States Constitution. State v. Reynolds, 289 Or 533, 614 P2d 1158 (1980)

Felony murder is not limited to negligent or accidental killing during felony. State v. Reams, 292 Or 1, 636 P2d 913 (1981)

“Year and a day rule,” requiring that murder indictment allege that decedent died within a year and a day of the commission of the act alleged to cause the death, is not applicable in Oregon. State v. Hudson, 56 Or App 462, 642 P2d 331 (1982), Sup Ct review denied

Where amendment to this section that permits imposition of minimum sentences in murder cases did not take effect until after murder in this case occurred, application of amendment offends constitutional prohibition against ex post facto laws. State v. Reese, 84 Or App 211, 733 P2d 495 (1987), Sup Ct review denied; State v. Young, 85 Or App 421, 736 P2d 626 (1987), Sup Ct review denied

Jury’s unanimous conviction of defendant of felony murder is not inconsistent with less than unanimous vote on first degree kidnapping because dissenting juror could have found defendant guilty of lesser included offense sufficient to support felony murder verdict. State v. Mendez, 308 Or 9, 774 P2d 1082 (1989)

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

Where crime was committed before basis for upholding minimum sentence was included in rules, use of basis to uphold sentence was not ex post facto. Carroll v. Board of Parole, 124 Or App 180, 859 P2d 1203 (1993)

Where either of two felonies could be predicate felony supporting aggravated murder sentence, court could impose separate sentence for that felony not found to be predicate for aggravated murder. State v. Lyons, 124 Or App 598, 863 P2d 1303 (1993), aff’don other grounds, 324 Or 256, 924 P2d 802 (1996)

Actions against single victim that include more than one of listed means of murder provide grounds for single conviction on multiple counts of murder but do not create grounds for multiple murder convictions. State v. Beason, 170 Or App 414, 12 P3d 560 (2000), Sup Ct review denied

Finding that defendant committed aggravated murder personally and intentionally does not require that murder conviction based on same event be for intentional murder. State v. Ventris, 337 Or 283, 96 P3d 815 (2004)

Conviction for murder under any theory merges with conviction for aggravated murder of same victim under any theory. State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), Sup Ct review denied

Culpable mental state is established when defendant commits or attempts to commit predicate felony. State v. Blair, 230 Or App 36, 214 P3d 47 (2009), aff’d 348 Or 72, 228 P3d 564 (2010)

Where person commits burglary with intent to assault or kill particular person and kills that person during commission of burglary, person commits felony murder. State v. Dasa, 234 Or App 219, 227 P3d 228 (2010), Sup Ct review denied

Attempted murder occurs when person, with intent to cause death of another human being, intentionally engages in conduct to achieve that end. State v. Pedersen, 242 Or App 305, 255 P3d 556 (2011)

COMPLETED CITATIONS: State v. Moore, 4 Or App 548, 480 P2d 458 (1971), Sup Ct review denied; State v. Smallwood, 5 Or App 245, 481 P2d 378 (1971), Sup Ct review denied; State v. Tucker, 5 Or App 283, 483 P2d 825 (1971), Sup Ct review denied; State v. Obremski, 5 Or App 302, 483 P2d 467 (1971), Sup Ct review denied; State v. Gairson, 5 Or App 464, 484 P2d 854 (1971), Sup Ct review denied; State v. Crenshaw, 6 Or App 55, 486 P2d 581 (1971); State v. Martinelli, 6 Or App 182, 485 P2d 647 (1971), Sup Ct review denied; State v. House, 260 Or 138, 489 P2d 381 (1971); State v. Davis, 16 Or App 405, 518 P2d 1039 (1974), Sup Ct review denied

LAW REVIEW CITATIONS

Pre-1975 amendments

51 OLR 459 (1972); 8 WLJ 128 (1972)

Pre-1979 amendments

16 WLR 1, 67 (1979)

Pre-1981 amendments

17 WLR 629 (1981)

Pre-1995 amendments

26 WLR 435 (1990)

163.118

NOTES OF DECISIONS

Under former similar statute (ORS 163.115)

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

In general

In trial of defendant charged under this section, both state and defendant were entitled to instruction on lesser included offense of criminally negligent homicide under ORS 163.145. State v. Goldsberry, 30 Or App 1087, 569 P2d 646 (1977), Sup Ct review denied

Where defendant, charged with and convicted of murder, requested instruction on “partial responsibility” defense as to this section or ORS 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

Where there was evidence that victim was instigator of shooting, that he assaulted defendant’s girlfriend and defendant’s relatives present at the time of shooting and girlfriend testified to extreme fright and concern for small children in vicinity as result of victim’s erratic behavior, jury was warranted in not finding the absence of extreme emotional disturbance to have been proven beyond a reasonable doubt as required to convict for attempted murder and instruction on attempted manslaughter was proper. State v. Carson, 292 Or 451, 640 P2d 586 (1982)

Under evidence that defendant was participating in a game of “Russian roulette,” his mental state at the time he handed a gun to decedent which discharged and caused decedent’s death was vital to manslaughter conviction and refusal of trial judge to give requested instruction focusing on this conduct was error. State v. Van Gorder, 56 Or App 83, 641 P2d 584 (1982), Sup Ct review denied

“Extreme indifference to human life” does not create additional mens rea requirement. State v. Belcher, 124 Or App 30, 860 P2d 903 (1993), Sup Ct review denied

First degree manslaughter is lesser-included offense of murder. State v. Henry, 138 Or App 286, 907 P2d 1133 (1995)

First degree manslaughter is not lesser included offense to aggravated murder. State v. Merideth, 149 Or App 164, 942 P2d 803 (1997), Sup Ct review denied

Where defendant is charged with causing death of dependent person, “recklessly” refers to disregarding risk of causing death and not to disregarding risk of causing circumstance that later results in death. State v. Crosby, 342 Or 419, 154 P3d 97 (2007)

LAW REVIEW CITATIONS

In general

18 WLR 186 (1982)

163.125

NOTES OF DECISIONS

Where defendant’s sole contribution to death of victim is participation in reckless activity mutually agreed upon, defendant’s participation is not cause of victim’s death. State v. Petersen, 270 Or 166, 526 P2d 1008 (1974)

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

The trial court was correct in using the customary meaning of “extreme emotional disturbance.” State v. Akridge, 23 Or App 633, 543 P2d 1073 (1975)

The issue of whether the injuries which caused the death of the victim constituted substantial and unjustified risk within this section was properly submitted to the jury. State v. Pruett, 24 Or App 555, 546 P2d 475 (1976)

Where defendant, charged and convicted of murder, requested instruction on “partial responsibility” defense as to ORS 163.118 or this section, 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

A court may not prohibit the admission of blood tests performed by an individual who does not possess permit from Health Division in prosecutions under this section when evidence is otherwise competent and relevant. State v. Heintz, 286 Or 239, 594 P2d 385 (1979)

Vehicular homicide involving intoxication is punishable as manslaughter. State v. Corpuz, 49 Or App 811, 621 P2d 604 (1980)

163.135

NOTES OF DECISIONS

The state’s right to make a psychiatric examination of the defendant can be exercised during the trial. State v. Akridge, 23 Or App 633, 543 P2d 1073 (1975)

In determining whether defendant has acted under influence of extreme emotional disturbance, personality characteristics or traits are not relevant. State v. Ott, 297 Or 375, 686 P2d 1001 (1984); State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Affirmative defense under this provision and affirmative defense of mental disease or defect under ORS 161.295 are not mutually exclusive. State v. Counts, 311 Or 616, 816 P2d 1157 (1991)

Extreme emotional disturbance is not defense to aggravated felony murder. State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Defense of extreme emotional distress is unavailable for

charge of attempted murder. Kibble v. Baldwin, 135 Or App 540, 899

P2d 731 (1995)

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)

163.145

NOTES OF DECISIONS

An indictment is sufficient to state a crime under this section if it alleges that a defendant caused a death by driving in a criminally negligent manner. State v. Allen, 16 Or App 456, 518 P2d 1332 (1974), Sup Ct review denied

In trial of defendant charged with first degree manslaughter, both state and defendant were entitled to request instruction on lesser included offense of negligent homicide. State v. Goldsberry, 30 Or App 1087, 569 P2d 646 (1977), Sup Ct review denied

Where defendant consumed alcohol throughout day and apparently fell asleep at wheel of vehicle causing head-on collision with tree and killing decedent, conduct of defendant constituted proximate cause of decedent’s death. State v. Simmons, 34 Or App 929, 580 P2d 564 (1978), Sup Ct review denied

Availability of spiritual treatment defense for criminal mistreatment under ORS 163.206 but not for criminally negligent homicide does not create ambiguity regarding when conduct changes from legal to criminal. State v. Hays, 155 Or App 41, 964 P2d 1042 (1998), Sup Ct review denied

Classification change by 2003 amendments does not affect eligibility of pre-2003 conviction to be set aside under ORS 137.225. State v. Soreng, 208 Or App 259, 145 P3d 195 (2006)

COMPLETED CITATIONS: State v. Martinelli, 6 Or App 182, 485 P2d 647 (1971), Sup Ct review denied

163.150

NOTES OF DECISIONS

Where trial record contained no “judgment of conviction,” Supreme Court granted trial court leave to enter judgment of conviction, because judgment is necessary prerequisite to review. State v. McDonnell, 306 Or 579, 761 P2d 921 (1988)

Fourth general mitigation question to be submitted to sentencing jury must allow jury to consider all aspects of defendant’s character and background whether or not causally related to offense. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Farrar, 309 Or 132, 786 P2d 161 (1990); State v. Smith, 310 Or 1, 791 P2d 836 (1990); State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993); State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

This section does not compel resentencing before original trial jury. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where trial court failed to give jury instruction on fourth question on subject of mitigation, case remanded to trial court for retrial of penalty phase. State v. Wagner, 309 Or 5, 786 P2d 93 (1990); State v. Moen, 309 Or 45, 786 P2d 111 (1990); State v. Miranda, 309 Or 121, 786 P2d 155 (1990); State v. Guzek, 310 Or 299, 797 P2d 1031 (1990); State v. Simonsen, 310 Or 412, 798 P2d 241 (1990); State v. Williams, 313 Or 19, 828 P2d 1006 (1992); State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

Where defendant was convicted of aggravated murder and sentenced to death, evidence that defendant had threatened one or both victims with shotgun during argument on prior occasion, evidence of prior convictions for negligent homicide and forgery and testimony regarding unadjudicated incident in 1959 and evidence of prior convictions for negligent homicide and forgery were properly presented to jury during penalty stage. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Trial court’s instructions to jury that they could not have sympathy for defendant in deliberations on penalty phase were proper because role of jury is to reach reasoned decision based solely on evidence before jury. State v. Moen, 309 Or 45, 786 P2d 111 (1990)

Where defendant failed to give any basis for trial court to take judicial notice that violence lessens with age, that violence is situational, or to make specific comment on evidence about defendant’s family or drug abuse, it would have been error for trial court to specifically instruct jury on these mitigating factors. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Temporal gap between guilt and penalty phases in death penalty case created by this section is not unconstitutional. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Evidence that defendant had committed prior abduction and rape in 1980, offered to show defendant’s intent to commit crime of attempted rape, was not properly admitted because similarities of two crimes did not outweigh differences. State v. Pratt, 309 Or 205, 785 P2d 350 (1990)

Evidentiary provisions against character evidence and against uncorroborated confessions are not applicable because evidence is allowable as relevant to issue of future dangerousness. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

Issues considered during penalty phase do not determine guilt or impose new or different sanction and therefore are not double jeopardy. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

Absent evidence making it relevant, trial court should not instruct jury on possible release of persons sentenced to life in prison. State v. Simonsen, 310 Or 412, 798 P2d 241 (1990); State v. Douglas, 310 Or 438, 800 P2d 288 (1990)

It was error in aggravated murder case, albeit harmless error, for court to allow prosecutor to ask potential jurors during voir dire regarding their willingness to consider in penalty phase of proceedings whether defendant had past criminal history for purpose of assessing probability of defendant’s future dangerousness. State v. Pinnell, 311 Or 98, 806 P2d 110 (1991)

Where defendant was convicted of aggravated murder and sentenced to death, evidence of previous murder, admitted under modus operandi exception to general rule against introduction of evidence of “other crimes,” was erroneously admitted and prejudicial to defendant. State v. Johnson, 313 Or 189, 832 P2d 443 (1992)

Sentencing jury’s verdict in earlier murder trial involving same defendant did not preclude state from relitigating issue of defendant’s future dangerousness and seeking death penalty in later case. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

Trial court did not err in refusing to instruct jury that “criminal acts of violence” referred to relatively narrow range of conduct likely to result in physical injury to persons, including homicide, forcible rape, aggravated assault and arson. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Because this section establishes clear, rational and definite criteria for determining whether defendant should receive life sentence or death penalty, this section is not unconstitutional under Article I, section 20. State v. Tucker, 315 Or 321, 845 P2d 904 (1993)

Admission of victim impact evidence was improper because victim impact is not relevant to presence or absence of mitigating circumstances. State v. Metz, 131 Or App 706, 887 P2d 795 (1994), Sup Ct review denied; State v. Guzek, 322 Or 245, 906 P2d 272 (1995). But see State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Circumstantial evidence that defendant’s execution might have some harmful effect on defendant’s daughter is relevant during penalty phase to defendant’s character or background under fourth general mitigation question. State v. Stevens, 319 Or 573, 879 P2d 162 (1994)

Where defendant is interrogated about criminal conduct unrelated to charged murder, evidence of unrelated criminal conduct derived during interrogation may not be used to enhance sentence for murder unless defense counsel was afforded opportunity to be present at interrogation. State v. Hill, 142 Or App 189, 921 P2d 969 (1996), Sup Ct review denied

Unadjudicated bad acts of defendant while incarcerated are admissible because relevant to issue of future dangerousness. State v. Williams, 322 Or 620, 912 P2d 364 (1996)

During penalty phase of trial, lay opinion of witness whether defendant should receive death penalty was irrelevant. State v. Wright, 323 Or 8, 913 P2d 321 (1996)

Evidence presented during second penalty-phase hearing that duplicates evidence at trial is not “repetitive evidence” where jury is not same as trial jury. State v. Montez, 324 Or 343, 927 P2d 64 (1996)

Evidence of defendant’s prior parole violations is admissible because relevant to future dangerousness. State v. Montez, 324 Or 343, 927 P2d 64 (1996)

Appellate court may review jury’s decision under fourth question to determine whether rational juror could have concluded that death sentence is justified. State v. Moore, 324 Or 396, 927 P2d 1073 (1996)

New penalty-phase proceeding on remand is treated as separate trial for purposes of holding omnibus hearing and allowing state appeals therefrom prior to trial. State ex rel Carlile v. Frost, 326 Or 607, 956 P2d 202 (1998)

Retroactive application of 1995 amendments allowing consideration of victim impact evidence at sentencing violated ex post facto prohibition of Oregon Constitution. State v. Metz, 162 Or App 448, 986 P2d 714 (1999), Sup Ct review denied. But seeState v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Under 1993 version of statute, availability of new sentencing option upon remand was governed by applicability date in provision governing remand proceedings, not applicability date of sentencing option provision. State v. Rogers, 330 Or 282, 4 P3d 1261 (2000)

Prosecution has right to present rebuttal argument regarding any penalty-phase matter raised by defendant’s argument, including whether death penalty should be imposed. State v. McNeely, 330 Or 457, 8 P3d 212 (2000)

1997 version of statute permitting jury consideration of aggravating evidence did not allow cruel and unusual punishment since jury could consider only evidence presented at trial. State v. Fanus, 336 Or 63, 79 P3d 847 (2003)

Where defendant has engaged in past dangerous conduct based on defendant’s beliefs, evidence relating to beliefs is relevant to issue of future dangerousness. State v. Fanus, 336 Or 63, 79 P3d 847 (2003)

Presentation of evidence pertaining to personal characteristics of victim or impact of crime on victim’s family is not limited to testimony by victim or family. State v. Sparks, 336 Or 298, 83 P3d 304 (2004)

Use of victim impact evidence regarding crime committed before 1995 and 1997 amendments making evidence admissible does not violate federal ex post facto protection and supersedes state ex post facto protection. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

During penalty-phase proceeding, guilt-phase transcripts are admissible regardless of substance. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Where defendant waives ex post facto challenges, court must instruct jury during penalty phase of trial regarding sentencing option not available at time defendant committed crime. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

Where transcripts of witness testimony from guilt phase of trial were used to prove elements of state’s case during penalty phase of trial, defendant had right to introduce prior inconsistent statements for impeachment purposes. State v. Guzek, 336 Or 424, 86 P3d 1106 (2004)

1997 amendments requiring that jury be instructed to consider aggravating evidence did not alter evidence required to be considered so as to trigger state or federal constitutional prohibition against ex post facto laws. State v. Acremant, 338 Or 302, 108 P3d 1139 (2005)

Questions regarding probability of defendant’s future dangerousness and whether defendant should receive death sentence do not unconstitutionally reduce standard of proof. State v. Longo, 341 Or 580, 148 P3d 892 (2006)

Where death penalty is not under consideration, evidence of potential for future violence is relevant to consideration of whether sufficient mitigating circumstances warrant life sentence with possibility of parole. State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), Sup Ct review denied

Submission of four issues to jury for sentencing determination applies only where all three sentencing options are under consideration. State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), Sup Ct review denied

LAW REVIEW CITATIONS: 22 WLR 285 (1986); 25 WLR 653 (1989); 70 OLR 943 (1991); 29 WLR 113, 343 (1993); 36 WLR 313 (2000); 39 WLR 1 (2003)

163.160

NOTES OF DECISIONS

State is not required to elect between escape and assault charges prior to verdict. State v. Tron, 39 Or App 603, 592 P2d 1094 (1979)

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)

It was error for court to instruct jury that defendant could be found guilty of both fourth degree assault and careless driving for same motor vehicle accident. State v. Ritchey, 46 Or App 871, 613 P2d 501 (1980)

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, no “physical injury” was shown and conviction under this section was improper. State v. Capwell, 52 Or App 43, 627 P2d 905 (1981)

One may not be convicted of both escape in first degree and assault when assault is part and parcel of escape. State v. Wigget, 75 Or App 474, 707 P2d 101 (1985)

Trial court did not err in denying motion for judgment of acquittal in prosecution under this section when evidence showed, inter alia, defendant was driving 40 miles an hour at time of rear-ending victims’ car at stop sign, defendant had consumed three ounces of vodka within hour before collision, defendant was driving without lights and defendant left scene of accident without contacting victims. State v. Van Walchren, 112 Or App 240, 828 P2d 1044 (1992), Sup Ct review denied

Child witnessing assault is not “victim” of assault. State v. Glaspey, 337 Or 558, 100 P3d 730 (2004)

Enumerated circumstances that make offense felony are alternative theories for obtaining single conviction for offense, not separate statutory provisions allowing multiple convictions. State v. Yong, 206 Or App 522, 138 P3d 37 (2006), Sup Ct review denied

Minor child who is “victim” of assault is not also “witness” of assault for purposes of elevating classification of offense. State v. Gatt, 210 Or App 117, 149 P3d 1220 (2006)

To be committed in “immediate presence” of child, offense must occur in same, physically unseparated space where child is located. State v. Cox, 212 Or App 637, 159 P3d 352 (2007)

Child directly perceives assault if child contemporaneously is aware through any of child’s senses that assault is occurring. State v. Rader, 348 Or 81, 228 P3d 552 (2010)

LAW REVIEW CITATIONS: 82 OLR 1125 (2003)

163.165 to 163.195

NOTES OF DECISIONS

Where state relied on precisely same act to establish “use-physical-force” element of robbery and “cause-physical-injury” element of assault, defendant’s assault conviction merged into robbery conviction. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 429, 432, 482-486 (1972)

163.165

NOTES OF DECISIONS

Automobile passenger injured by reckless operation of vehicle can be injured “by means of” dangerous weapon within meaning of this section, regardless of fact that automobile is incapable of being directed at its passenger. State v. Hill, 298 Or 270, 692 P2d 100 (1984)

Third degree assault is not lesser included offense to second degree assault. State v. McNair, 179 Or App 308, 39 P3d 284 (2002)

Defendant aided by another person actually present “causes” physical injury to another only if defendant personally inflicts physical injury or defendant personally engages in conduct extensively intertwined with infliction of injury. State v. Pine, 336 Or 194, 82 P3d 130 (2003)

Where defendant’s reckless conduct directly causes injury, victim’s participation in reckless conduct does not excuse defendant from criminal responsibility. State v. Murray, 343 Or 48, 162 P3d 255 (2007)

Person actually present who aids third-degree assault may not be found guilty of third-degree assault under aiding and abetting theory. State v. Merida-Medina, 221 Or App 614, 191 P3d 708 (2008), Sup Ct review denied

163.175

NOTES OF DECISIONS

Where indictment charged defendant with first degree assault for placing child in scalding hot water, indictment was deemed to also charge lesser included offense of second degree assault. State v. Jacobs, 34 Or App 755, 579 P2d 881 (1978), Sup Ct review denied

Evidence that after defendant’s wife became involved in argument with bartender defendant separated bartender from fracas and began hitting bartender on head and body was sufficient to support jury finding that defendant had not justifiably acted in defense of his wife. State v. Gibson, 36 Or App 111, 583 P2d 584 (1978), Sup Ct review denied

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 is jury question. State v. Gale, 36 Or App 275, 583 P2d 1169 (1978)

State is not required to elect between escape and assault charges prior to verdict. State v. Tron, 39 Or App 603, 592 P2d 1094 (1979)

It was error to convict under this section when indictment charged defendant with first degree robbery and neither statutory scheme nor indictment necessarily included the crime of this section. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979)

Where victim incurred no physical injury within meaning of ORS 161.015, second degree assault conviction was modified to attempted second degree assault (ORS 161.405). State v. Rice, 48 Or App 115, 616 P2d 538 (1980), Sup Ct review denied

Because reference to extreme indifference to value of human life is not unconstitutionally vague, it does not violate due process or violate ex post facto principles. State v. Corpuz, 49 Or App 811, 621 P2d 604 (1980)

Where indictment alleged that defendant had intentionally caused physical injury, but it did not allege that defendant had attempted to place another in fear of imminent serious physical injury, menacing (ORS 163.190) was not lesser included offense of assault in second degree. State v. Moroney, 289 Or 597, 616 P2d 471 (1980)

Where as result of single act of recklessness defendant injured two persons, he was properly charged with and convicted of two assaults, but could be sentenced for only one assault. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied

It was proper to separately sentence for assault and failure to perform duties of a driver involved in an accident ([former] ORS 483.602), since knowingly leaving accident scene was not part of reckless activity which resulted in assaults but was intended to accomplish separate result. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied

Whether person who behaves with reckless culpable mental state also exhibits additional element of conduct manifesting “extreme indifference” to value of human life is determined by all circumstances surrounding conduct. State v. Boone, 294 Or 630, 661 P2d 917 (1983)

Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

In order for jury to infer that tennis shoe was dangerous weapon, state was required to prove beyond reasonable doubt that ordinarily harmless footwear was used in way that could cause serious physical injury. State v. Werder, 112 Or App 179, 828 P2d 474 (1992)

Assault in second degree is not lesser included offense to assault in first degree. State v. Cook, 163 Or App 578, 989 P2d 474 (1999)

“Circumstances” manifesting extreme indifference to value of human life include all relevant circumstances, not just nature of injury inflicted. State v. Cook, 163 Or App 578, 989 P2d 474 (1999)

To prove that defendant acted “knowingly,” state must prove only that defendant was aware of assaultive nature of conduct, not that defendant was aware of likely result. State v. Barnes, 329 Or 327, 986 P2d 1160 (1999)

Third degree assault is not lesser included offense to second degree assault. State v. McNair, 179 Or App 308, 39 P3d 284 (2002); State v. Harris, 230 Or App 83, 213 P3d 859 (2009)

Where person causes serious physical injury to another with dangerous or deadly weapon, crime of assault in second degree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied

Crime is “crime of violence” for purposes of federal career offender sentencing guidelines. United States v. Crews, 621 F3d 849 (9th Cir. 2010)

COMPLETED CITATIONS (for former ORS 163.250): State v. Wolberg, 5 Or App 295, 483 P2d 104 (1971), Sup Ct review denied, cert. denied, 404 US 1015 (1972)

163.185

NOTES OF DECISIONS

Under former similar statute (ORS 163.280)

If evidence of other crimes tends to prove the commission of the crime charged in the indictment, the general rule of exclusion has no application. State v. Walsh, 6 Or App 346, 487 P2d 1401 (1971); State v. Fuston, 7 Or App 436, 490 P2d 1024 (1971), Sup Ct review denied

The intent to collect or secure a debt, if under a bona fide belief that the taker was entitled to possession of the property, negated the requisite animus furandi element in robbery. State v. Trujillo, 7 Or App 236, 489 P2d 977 (1971), Sup Ct review denied

The defense of collecting money owed was not available when more than was believed due was taken. State v. Trujillo, 7 Or App 236, 489 P2d 977 (1971), Sup Ct review denied

In general

Legislature did not intend that assault during escape attempt could be punished as both attempted first degree escape and first degree assault. State v. Fitzgerald, 14 Or App 361, 513 P2d 817 (1973)

Where indictment charged defendant under this section with placing child in scalding hot water, indictment was deemed to also charge defendant with lesser-included offense of second degree assault. State v. Jacobs, 34 Or App 755, 579 P2d 881 (1978), Sup Ct review denied

Where defendant stabbed victim, leaving chest wound which required exploratory surgery to determine whether damage had been done to vital organ and surgery determined that it had not, defendant was found not to have caused serious physical injury within meaning of this section. State v. Moyer, 37 Or App 477, 587 P2d 1054 (1978)

Instruction that state could prove defendant guilty under this section if it proved “intent by defendant to injure” without discussing intent to cause serious physical injury, as required by this section, was erroneous. State v. Peacock, 75 Or App 217, 706 P2d 982 (1985)

COMPLETED CITATIONS: State v. Moore, 4 Or App 548, 480 P2d 458 (1971), Sup Ct review denied; State v. Zimmerlee, 5 Or App 253, 483 P2d 111 (1971), rev’d 261 Or 49, 492 P2d 795 (1972); State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied; State v. Atkison, 6 Or App 68, 485 P2d 1117 (1971), Sup Ct review denied

163.190

NOTES OF DECISIONS

Menacing is not lesser-included offense of carrying dangerous weapon with intent to use. State v. Cummings, 33 Or App 265, 576 P2d 36 (1978)

Where defendant, charged with two counts of menacing which arose out of same act, claimed that counts should be tried separately, trial court did not err in trying charges together since charges were so closely related that no relevant evidence was admissible in joint trial that would not have been properly admitted in each separate trial. State v. Elam, 37 Or App 365, 587 P2d 491 (1978)

Under evidence that defendant approached victim’s car brandishing baseball bat and pistol, victim’s testimony was not essential, and it was not error for court to deny motion for judgment of acquittal. State v. Lockwood, 43 Or App 639, 603 P2d 1231 (1979)

Where indictment alleged that defendant had intentionally caused physical injury, but it did not allege that defendant had attempted to place another in fear of imminent serious physical injury; crime of this section was not lesser included offense of assault in second degree (ORS 163.175). State v. Moroney, 289 Or 597, 616 P2d 471 (1980)

That a person can attempt to place another in fear of imminent serious injury through words is only incidental, so this section does not directly implicate First Amendment rights or rights under Article I, Section 8 of the Oregon Constitution. State v. Anderson, 56 Or App 12, 641 P2d 40 (1982)

Since this section provides an adequate basis to distinguish between anti-social conduct which was intended to be prohibited and socially tolerable conduct which could reasonably have been intended to be subject to criminal sanction, it is not vague. State v. Anderson, 56 Or App 12, 641 P2d 40 (1982)

Menacing statute criminalizes the attempt to achieve the effect of fear, not a communication itself and thus does not violate section 8, Article I of the Oregon Constitution. State v. Garcias, 296 Or 688, 679 P2d 1354 (1984)

By pleading guilty to menacing under this section, petitioner “admitted” on record that he used or threatened to use firearm during commission of crime. D’Amico v. Peterson, 91 Or App 113, 754 P2d 19 (1988), Sup Ct review denied

Jury does not have to agree unanimously that defendant committed specific act to place victim in fear of imminent physical injury. State v. White, 115 Or App 104, 838 P2d 605 (1992)

Threatened infliction of serious physical injury within few hours is sufficiently near in time to make threatened injury “imminent.” State ex rel Juvenile Dept. v. Dompeling, 171 Or App 692, 17 P3d 535 (2000)

Menacing is not lesser included offense of first or second degree robbery. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

163.195

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

Action alleging that employer racketeering activity caused nondeliberate injury to employee acting within course and scope of employment is barred by exclusivity of workers’ compensation remedy. Kilminster v. Day Management Corp., 323 Or 618, 919 P2d 474 (1996)

Risk of injury “to another person” does not require that anyone actually be present within danger area. State v. Harbert, 155 Or App 137, 963 P2d 710 (1998), Sup Ct review denied

Conduct creating “substantial risk” need not actually expose others to harm. State v. Mojarro-Sandoval, 208 Or App 178, 144 P3d 996 (2006)

Being must be legally classifiable as “person” at moment that defendant commits act that creates possibility of serious physical injury. State v. Cervantes, 232 Or App 567, 223 P3d 425 (2009)

163.200

NOTES OF DECISIONS

When combined with criminal negligence standard of ORS 161.085, term “adequate physical care” in this section is not unconstitutionally vague. State v. Damofle/Quintana, 89 Or App 620, 750 P2d 518 (1988), Sup Ct review denied

Person withholds necessary and adequate physical care when person withholds from dependent person physical services and attention necessary to provide for dependant person’s bodily needs. State v. Baker-Krofft, 348 Or 655, 239 P3d 226 (2010)

163.205

NOTES OF DECISIONS

Where there was ample testimony from which court could have inferred that, while taking a shower with ten-month old victim defendant choked and beat her, defendant cannot challenge constitutionality of statute on ground of vagueness. State v. Collins, 68 Or App 101, 680 P2d 713 (1984), Sup Ct review denied

This section was not unconstitutionally vague because legislature chose to use language that would include parents as well as persons other than parents. State v. Warner, 109 Or App 468, 819 P2d 1390 (1991), Sup Ct review denied

Failure to provide medical personnel with incriminating information about cause of injuries is not withholding necessary and adequate medical attention. State v. Bordeaux, 220 Or App 165, 185 P3d 524 (2008)

Desertion of elderly person with intent to abandon does not require that defendant intend desertion to be permanent. State v. Schwarz, 228 Or App 273, 208 P3d 971 (2009)

Person withholds necessary and adequate physical care when person withholds physical services and attention necessary to provide for dependant person’s bodily needs. State v. Baker-Krofft, 348 Or 655, 239 P3d 226 (2010)

163.206

NOTES OF DECISIONS

Availability of spiritual treatment defense for criminal mistreatment under this section but not for criminally negligent homicide under ORS 163.145 does not create ambiguity regarding when conduct changes from legal to criminal. State v. Hays, 155 Or App 41, 964 P2d 1042 (1998), Sup Ct review denied

163.208

NOTES OF DECISIONS

“Corrections officer” means person supervising or controlling confined individuals, not juvenile parole officer. Haynes v. State of Oregon, 121 Or App 395, 854 P2d 949 (1993); State v. Tate, 223 Or App 636, 196 P3d 1033 (2008), aff’d 347 Or 318, 220 P3d 1176 (2009)

163.215 to 163.257

NOTES OF DECISIONS

Trial court properly admitted two handguns found in defendant’s possession shortly after alleged commission of crimes of kidnapping and robbery, where crimes were committed with aid of a handgun. State v. Manning, 39 Or App 279, 591 P2d 1195 (1979)

LAW REVIEW CITATIONS: 51 OLR 428 (1972)

163.215

NOTES OF DECISIONS

“Consent” as defined in this section is not applicable in determining whether there has been “enticement” and interference with custody pursuant to ORS 163.245. State v. Scott, 36 Or App 15, 583 P2d 1156 (1978), Sup Ct review denied

Capture of bail violator in Oregon, placing him in handcuffs and leg irons and driving him to California was “taking or confinement...accomplished by force,” and his signing bond agreement did not constitute consent to being taken into custody for later violation. State v. Epps, 36 Or App 519, 585 P2d 425 (1978), Sup Ct review denied

Where indictment alleged that defendant took child from its mother at direction of father and father had right to custody, taking was not without consent under this section. State v. Edmiston, 43 Or App 13, 602 P2d 282 (1979)

As one “responsible by authority of law for care, custody or control of another,” CSD was “lawful custodian” of children. State v. Gambone, 93 Or App 569, 763 P2d 188 (1988)

LAW REVIEW CITATIONS: 51 OLR 491 (1972)

163.225

NOTES OF DECISIONS

Movement of a victim from an automobile parked on the service station lot to the station building on the lot was asportation. State v. Talbot, 24 Or App 379, 545 P2d 599 (1976)

Evidence, inter alia, that defendant was a stranger to victim, that victim had left her car in haste, and that victim’s body was discovered some distance from car, was sufficient to support finding of second degree kidnapping. State v. Nulph, 31 Or App 1115, 572 P2d 642 (1977), Sup Ct review denied

Kidnapping was not merely incident to transaction involving also robbery and sodomy where defendant drove victim’s car several miles with bound victim in back seat. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

California bail bondsmen took person from one place to another “without consent or legal authority” within meaning of this section where they pursued and captured bail violator in Oregon and returned him to custody of California court. State v. Epps, 36 Or App 519, 585 P2d 425 (1978), Sup Ct review denied

Where indictment alleged that defendant took child from its mother at direction of father and father had right to custody, taking was with consent of lawful custodian, and thus defendant could not be indicted under this section. State v. Edmiston, 43 Or App 13, 602 P2d 282 (1979)

Where defendant pursued victim, seized her and carried her to other side of road and attempted to force her down beside some shrubbery, finder of fact could fairly have inferred that defendant intended to interfere substantially with victim’s personal liberty within meaning of this section. State v. Cazares, 44 Or App 621, 606 P2d 688 (1980), Sup Ct review denied

Evidence that, inter alia, defendant grabbed and slapped victim, threw her in car and held her down while he drove out of town was sufficient to show lack of consent to transportation. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)

Where defendant drove victim substantial distance in his pickup truck and detained her for over eight hours, this was not type of minimal displacement incidental to commission of sodomy and failure to merge kidnapping and sodomy convictions and sentences was not error. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Where victims were tied and gagged and moved around their house but not taken beyond the house or moved a substantial distance, victims were “taken from one place to another” within meaning of this section. State v. Dinkel, 49 Or App 917, 621 P2d 626 (1980)

Legislative intent is that there may be separate conviction and sentence for kidnapping only when it is not incidental to another crime, and it may be found not to be incidental if defendant had intent to interfere substantially with victim’s personal liberty. State v. Garcia, 288 Or 413, 605 P2d 671 (1980); State v. Thomas, 139 Or App 308, 911 P2d 1237 (1996), Sup Ct review denied

Evidence that defendant concealed victim in bathroom of victim’s apartment and held victim at knifepoint so as to prevent victim from responding to police officer’s knocks was sufficient to support finding that defendant intended to substantially interfere with victim’s personal liberty and that defendant “secretly confined” victim in place where victim was “not likely to be found.” State v. Montgomery, 50 Or App 381, 624 P2d 151 (1981), Sup Ct review denied

Where defendant admitted that during robbery he moved employes and patrons from lounge to another room and kept door locked from five to ten minutes, there was sufficient evidence for rational jury to conclude beyond reasonable doubt that defendant had requisite intent to kidnap. State v. Rendahl, 58 Or App 688, 650 P2d 128 (1982)

Movement of upper two-thirds of victim’s body off driver’s seat of automobile did not meet this section’s requirement of taking person from one place to another. State v. Jefferson, 81 Or App 479, 726 P2d 392 (1986), Sup Ct review denied

Sentencing of defendants separately on convictions for kidnapping and for escape was proper because determination of separate punishment for kidnapping depended on whether defendant intended to interfere substantially with victim’s personal liberty. State v. Allen, 89 Or App 167, 747 P2d 384 (1987), Sup Ct review denied

To convict defendant of kidnapping by deception, prosecution must prove following elements: 1) defendant intended to interfere substantially with another’s personal liberty; 2) defendant made misrepresentation calculated to induce reliance by victim in order to accomplish interference; and 3) victim relied upon misrepresentation in choosing to accompany defendant from one place to another. State v. Amell, 303 Or 355, 736 P2d 561 (1987)

Act of taking person from one place to another and act of secretly confining person in place where not likely to be found violate two separate “statutory provisions” for proving first degree kidnapping. State v. O’Neall, 115 Or App 62, 836 P2d 758 (1992), Sup Ct review denied

There is no de minimis distance required to constitute taking of person from one place to another. State v. Thomas, 139 Or App 308, 911 P2d 1237 (1996), Sup Ct review denied

Offense is “crime of violence” for purposes of federal career offender sentencing guidelines. U.S. v. Williams, 110 F3d 50 (9th Cir. 1997)

Moving victim from one room to another while committing crime other than kidnapping, without intent to move victim farther or take victim to place of confinement, is insufficient to “substantially” interfere with personal liberty. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005)

“Liberty” interest this section protects from interference is interest in freedom of movement. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005)

Moving victim short distance in course of committing other crime does not constitute kidnapping unless defendant intended transporting victim greater distance than was accomplished or transporting victim to place of confinement. State v. Wolleat, 338 Or 469, 111 P3d 1131 (2005); State v. Claborn, 214 Or App 166, 162 P3d 374 (2007), Sup Ct review denied

Whether defendant had intent to substantially interfere with liberty of victim may be determined by considering both movement of victim and confinement of victim. State v. Nguyen, 221 Or App 440, 190 P3d 462 (2008), modified 228 Or App 241, 206 P3d 1219 (2009), Sup Ct review denied; State v. Mejia, 348 Or 1, 227 P3d 1139 (2010)

Asportation element of kidnapping is not met where actual distance victim is moved is not substantial and situation and context are same. State v. Odnorozhenko, 224 Or App 288, 197 P3d 562 (2008)

Determination of whether victim is moved “from one place to another” is situational and contextual and depends on multiple factors, including distance, limitation of personal freedom and increase in isolation. State v. Walch, 346 Or 463, 213 P3d 1201 (2009)

LAW REVIEW CITATIONS: 51 OLR 486, 490-492 (1972); 15 WLR 23 (1978)

163.235

NOTES OF DECISIONS

Proving intent to terrorize victim requires showing use of force or threat beyond what is required to prove that action was without consent. State v. Swaggerty, 15 Or App 343, 515 P2d 952 (1973)

Evidence that defendant ultimately murdered victim, and that defendant may have been guilty of nonconsensual sexual conduct, was insufficient to show that defendant had terrorized victim. State v. Nulph, 31 Or App 1115, 572 P2d 642 (1977), Sup Ct review denied

Evidence that defendant kidnapped victim with purpose of forcibly raping her was sufficient to support a conviction for kidnapping in first degree. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

Where four victims were tied and gagged and told that if they attempted to leave they would be shot and fifth victim was forced at knife point to drive eight miles away, there was sufficient evidence from which jury could have concluded that defendant intended to interfere substantially with personal liberty of all his victims. State v. Dinkel, 49 Or App 917, 621 P2d 626 (1980)

Where evidence demonstrated that defendant intended to interfere substantially with personal liberty of each of his victims and jury found that separate intent to kidnap existed beyond intent to commit robbery, conviction for each charge of kidnapping was proper. State v. Dinkel, 49 Or App 917, 621 P2d 626 (1980)

Legislative intent is that there may be separate conviction and sentence for kidnapping only when it is not incidental to another crime, and it may be found not to be incidental if defendant had intent to interfere substantially with victim’s personal liberty. State v. Garcia, 288 Or 413, 605 P2d 671 (1980); State v. Thomas, 139 Or App 308, 911 P2d 1237 (1996), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 467, 489-492 (1972); 15 WLR 23 (1978)

163.245

NOTES OF DECISIONS

Evidence was sufficient to show that defendant knew that he did not have consent to take children, and that he intended to keep children from their mother for a permanent or protracted period of time. State v. Dirks, 35 Or App 33, 581 P2d 85 (1978), Sup Ct review denied

Person sixteen years of age or older and not suffering from physical or mental disability can be “enticed” within meaning of this section. State v. Scott, 36 Or App 15, 583 P2d 1156 (1978), Sup Ct review denied

Whether person being taken has given consent is relevant only if defendant has not “enticed” such consent, and thus this section does not impose strict liability on defendant who aids person who is voluntarily fleeing from custodian. State v. Scott, 36 Or App 15, 583 P2d 1156 (1978), Sup Ct review denied

Parent who knowingly takes child from lawful custody of CSD may commit custodial interference in second degree, even in absence of court order affecting parental rights. State v. Gambone, 93 Or App 569, 763 P2d 188 (1988)

Where parents share custody, existence of joint custody order is not required for actions of one parent to constitute infringement on custody rights of other parent. State v. Fitouri, 133 Or App 672, 893 P2d 556 (1995)

Person may “keep” another person from lawful custodian without restraining or otherwise exercising control over other person. State v. Adicho, 197 Or App 394, 105 P3d 916 (2005)

LAW REVIEW CITATIONS: 51 OLR 491 (1972)

163.257

NOTES OF DECISIONS

Legislative intent is that, absent showing of immediate physical danger to child, parties to custody battle are not permitted to steal children back and forth. State v. Easton, 35 Or App 603, 582 P2d 37 (1978), Sup Ct review denied

In prosecution under this section defense of legal impossibility is not available to defendant simply because she was joint custodial parent of child. State v. West, 70 Or App 167, 688 P2d 406 (1984)

This section describes continuing offense and period of limitation does not begin to run until custodial interference ceases. State v. Rose, 75 Or App 379, 706 P2d 583 (1985), Sup Ct review denied

Where state contended that defendant’s flight was motivated by knowledge that defendant had no legal right to custody of children, court erred in suppressing evidence of a different motive. State v. Bayse, 122 Or App 608, 859 P2d 542 (1993)

LAW REVIEW CITATIONS: 51 OLR 491 (1972)

163.275

NOTES OF DECISIONS

The prohibition of this section reaches areas of free speech, rendering the statute unconstitutionally overbroad. State v. Robertson, 293 Or 402, 649 P2d 569 (1982)

This section is susceptible to narrowing construction and, as so construed, is not overbroad and does not violate Article I, section 8 of Oregon Constitution. State v. Stone, 84 Or App 575, 735 P2d 577 (1987), Sup Ct review denied

“Induce” means to influence or persuade person to do something that person otherwise would not have done or to not do something that person otherwise would have done. State v. Pedersen, 242 Or App 305, 255 P3d 556 (2011)

LAW REVIEW CITATIONS: 51 OLR 483, 492, 493 (1972); 20 WLR 351 (1984)

163.285

LAW REVIEW CITATIONS: 51 OLR 492 (1972)

163.305 to 163.465

NOTES OF DECISIONS

Under evidence that defendant intentionally touched victim’s buttocks through clothing, whether such conduct constituted “sexual contact” of victim’s “intimate parts” was question for jury. State v. Buller, 31 Or App 889, 581 P2d 1263 (1977)

Genitalia and breasts are intimate parts as matter of law under this section, and undeveloped genitalia and breasts of children are included within definition. State v. Turner, 33 Or App 157, 575 P2d 1007 (1978), Sup Ct review denied

Rule that state is not permitted to introduce evidence of other crimes or bad acts solely to prove defendant acted as on prior occasions is strictly applied in sex crime cases, even those involving deviate sexual behavior, in so far as conduct with persons other than victim is concerned. State v. Sicks, 33 Or App 435, 576 P2d 834 (1978)

LAW REVIEW CITATIONS: 51 OLR 428, 518-522, 555 (1972)

163.305

NOTES OF DECISIONS

Although evidence included a statement by victim made to cause defendant to believe that she was consenting to intercourse, but made with the ultimate motive of opening an avenue for her escape, evidence of rape was sufficient to submit to the jury. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975)

Under evidence that defendant intentionally touched victim’s buttocks through clothing, whether such conduct constituted “sexual contact” of victim’s “intimate parts” was question for jury. State v. Buller, 31 Or App 889, 581 P2d 1263 (1977)

Legislative intent is that separate sentences are permissible for rape and sodomy offenses arising out of same criminal episode. State v. Garcia, 288 Or 413, 605 P2d 671 (1980)

In prosecution for violation for ORS 163.425 (sexual abuse in first degree), evidence that defendant was being sexually fondled by his wife and that he attempted to expose himself to children in backseat of his car was probative of sexual arousal and therefore also probative of purpose under this section. State v. Fitch, 47 Or App 205, 615 P2d 372 (1980)

Under this section, any penetration is sufficient to sustain charge of rape. State v. Wolfe, 56 Or App 795, 643 P2d 404 (1982)

Statement by doctor that vagina and outer lips of genitalia of four-year old girl were markedly inflamed and irritated so that he thought it was quite possible she was sexually assaulted was sufficient evidence to establish that penetration “however slight” had occurred. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

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

Sexual penetration is not necessary for conduct to constitute “deviate sexual intercourse.” State v. Luttrell, 93 Or App 772, 764 P2d 554 (1988), Sup Ct review denied

For purposes of this section, “intimate parts” of body are parts subjectively intimate to person touched, and which are known by accused to be so or are area of anatomy that would be objectively known to be intimate by any reasonable person. State v. Woodley, 306 Or 458, 760 P2d 884 (1988)

Where jury was entitled to infer from evidence that defendant who was charged with rape in first degree subjected victims to “forcible compulsion,” one element of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendant’s lack of venue argument and denying his motion or judgment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)

Ability of mentally defective person to appraise “nature” of conduct depends on person’s understanding of physical aspects of conduct and ability to contemplate and assess moral quality of conduct. State v. Callender, 181 Or App 636, 47 P3d 514 (2002), Sup Ct review denied

Appraisal of conduct by person who is “mentally defective” means exercise of judgment and making of choices based on person’s understanding of nature of person’s own conduct. State v. Reed, 339 Or 239, 118 P3d 791 (2005)

“Intimate parts” of person means body parts that person ordinarily allows to be touched only by other people with whom person has close personal relationship marked by love, ardent liking or mutual cherishing. State v. Meyrovich, 204 Or App 385, 129 P3d 729 (2006), Sup Ct review denied

LAW REVIEW CITATIONS: 68 OLR 255 (1989)

163.315

NOTES OF DECISIONS

All four types of legal incapacity set out in this section are intended to apply to all sexual offenses. State v. Landino, 38 Or App 447, 590 P2d 737 (1979), Sup Ct review denied

Incapacity to consent to sexual act under this section extends to civil cases. Wilson v. Tobiassen, 97 Or App 527, 777 P2d 1379 (1989), Sup Ct review denied

163.325

NOTES OF DECISIONS

Under this section, it is no defense to charge of rape or sodomy that defendant reasonably believed victim to be older than particular age if that age is under 16. State v. Hoehne, 78 Or App 479, 717 P2d 237 (1986)

Relevant inquiry is whether defendant was aware of condition that in fact rendered victim unable to consent, not whether defendant was aware that effect of condition was to render victim unable to consent. State v. Anderson, 137 Or App 36, 902 P2d 1206 (1995), Sup Ct review denied

Affirmative defense that defendant lacked knowledge that victim was incapable of consent does not unconstitutionally shift burden of proof because knowledge of incapacity is not required element of crime. State v. Phelps, 141 Or App 555, 920 P2d 1098 (1996), Sup Ct review denied

163.345

NOTES OF DECISIONS

Age difference of less than three years is not defense where victim does not give actual consent. State ex rel Juv. Dept. v. Kitt, 129 Or App 591, 879 P2d 1348 (1994)

Adult charged as accomplice or with inchoate crime does not obtain defense solely by reason that defense would be available to minor contemplated as having committed underlying conduct. State ex rel Juvenile Dept. v. Aragorn, 189 Or App 65, 73 P3d 939 (2003), Sup Ct review denied

163.355 to 163.375

NOTES OF DECISIONS

Indictments charging defendants with forcible “sexual intercourse with...a female” were sufficient, notwithstanding that indictments did not allege that defendants were males. State v. Routh/Hawkins, 30 Or App 901, 568 P2d 704 (1977), Sup Ct review denied

COMPLETED CITATIONS: State v. Hamilton, 5 Or App 266, 483 P2d 90 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 19 WLR 489 (1983)

163.355

NOTES OF DECISIONS

Fact that defendant’s reasonable mistake as to age of victim is no defense to charge of rape in the third degree, but is a defense to charge of rape in second or first degree, does not violate equal privileges requirement of Oregon Constitution. State v. Jalo, 72 Or App 479, 696 P2d 14 (1985), Sup Ct review denied

[Former] ORS 161.062 was not violated where defendant received six separate convictions and sentences for one count each of first and third degree rape and two counts each of first and third degree sodomy because each of first degree crimes of which defendant was convicted required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

163.365

NOTES OF DECISIONS

This section does not violate equal protection provision of state and federal Constitutions. State v. Elmore, 24 Or App 651, 546 P2d 1117 (1976)

163.375

NOTES OF DECISIONS

Under former similar statute (ORS 163.210)

There was no rule in this state that either required or prohibited a cautionary instruction concerning the victim’s credibility. State v. Stocker, 11 Or App 617, 503 P2d 501 (1972), Sup Ct review denied

In general

An indictment for rape that does not specifically state that the female was not the defendant’s wife will withstand a demurrer for insufficiency. State v. Aronhalt, 18 Or App 577, 526 P2d 463 (1974), Sup Ct review denied

Sexual abuse in the first degree was held not to be a lesser-included-offense of attempted rape. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)

Although evidence included statement by victim made to cause defendant to believe that she was consenting to intercourse, but made with ultimate motive of opening avenue for her escape, evidence of rape was sufficient to submit to jury. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975)

Trial court was not required to merge crimes of first degree rape and first degree sodomy (ORS 163.405) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant opposed state’s motion, to consolidate charges resulting from same conduct, defendant 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 defendant failed to argue at trial that there was no evidence of penetration, issue could not be raised on appeal. State v. Tricker, 37 Or App 525, 588 P2d 48 (1978)

Evidence that, inter alia, defendant grabbed and slapped victim, threw her in car, struck her on head when she tried to escape, and held her hands behind her head while having sexual intercourse with her was sufficient to show lack of consent and forcible compulsion. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)

In prosecution for attempted rape under this section and ORS 161.405, 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 forcible sexual intercourse with victim. State v. Graham, 70 Or App 589, 689 P2d 1315 (1984), Sup Ct review denied

Where defendant forcibly compelled his son to have sexual intercourse with his stepdaughter, defendant was guilty of rape in first degree by operation of this section and ORS 161.155. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Trial court was not required to consolidate sentences for six separate convictions, one count each of first and third degree rape and two counts each of first and third degree sodomy because each first degree crime required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

Where jury was entitled to infer from evidence that defendant who was charged with rape in first degree subjected victims to “forcible compulsion,” one element of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendant’s lack of venue argument and denying his motion or judgment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)

Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Court refused to read definition of daughter in ORS 109.041 into this section. State v. Pennington, 120 Or App 360, 852 P2d 900 (1993), Sup Ct review denied

Prohibition against sexual intercourse with person “incapable of consent by reason of mental defect” is not vague under federal constitutional standards. Anderson v. Morrow, 371 F3d 1027 (9th Cir. 2004)

“Subjected to forcible compulsion” describes conduct that is material element requiring proof of culpable mental state. State v. Nelson, 241 Or App 681, 251 P3d 240 (2011)

163.385

NOTES OF DECISIONS

It is extremely unlikely that legislature had in mind common law method for calculating age in enacting this section and, for purposes of this section, person was “under 16 years of age” on day before person’s 16th birthday. State v. Hansen, 304 Or 169, 743 P2d 157 (1987)

Trial court was not required to consolidate sentences for six separate convictions, one count each of first and third degree rape and two counts each of first and third degree sodomy because each first degree crime required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

LAW REVIEW CITATIONS: 51 OLR 501-504 (1972); 11 WLJ 284 (1975)

163.395

LAW REVIEW CITATIONS: 51 OLR 501-504 (1972)

163.405

NOTES OF DECISIONS

Trial court was not required to merge crimes of first degree sodomy and first degree rape (ORS 163.375) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant placed bound victim in rear seat of car and anally and orally committed sodomy, the two acts of sodomy constituted two separate crimes, separately punishable. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Where record of trial of defendant convicted under this section clearly indicated that Judge and defense counsel were not aware of alternative provisions for dealing with sexually dangerous persons, pursuant to ORS 426.675, matter was remanded for reconsideration. State v. Morse, 35 Or App 7, 580 P2d 1038 (1978)

Testimony of defendant’s daughter, who was victim’s babysitter, that daughter reported to girl’s mother that defendant had “tingled” victim, was prejudicial hearsay. State v. McGaughy, 39 Or App 275, 591 P2d 1194 (1979)

Sexual abuse charge was merged in sodomy conviction where first sexual contact and at least one act of sodomy were not so separated in time, intervening events, or other circumstances as not to be consecutive steps in sodomy. State v. Harris, 287 Or 335, 599 P2d 456 (1979)

In prosecution under this section, evidence that defendant was being sexually fondled by his wife and that he attempted to expose himself to children in back seat of his car was probative of sexual arousal and was therefore relevant evidence of sexual contact with victim. State v. Fitch, 47 Or App 205, 613 P2d 1108 (1980)

Failure to merge sodomy and sexual abuse convictions was not error where events were separated by several hours, occurred in different locations and settings, and were separated by a number of intervening events. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Defendant who forcibly compels another person to engage in deviate sexual intercourse with third person can be convicted of sodomy and rape under this section. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Where petitioner sought review of order setting parole release date arguing that Board erred in applying risk aggravation factor C, it was determined that victims’ ages as defining element of crimes and their particular vulnerability due to youth are not same and petitioner’s hearing satisfied due process requirements. Jarvis v. State Board of Parole, 96 Or App 322, 773 P2d 3 (1989), Sup Ct review denied

Trial court was not required to consolidate sentences for six separate convictions, one count each of first and third degree rape and two counts each of first and third degree sodomy because each first degree crime required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

Where defendant was charged only with sodomy and jury could not rationally and consistently conclude that he intended only sexual abuse, evidence did not support instruction for attempted sexual abuse. State v. Fox, 111 Or App 362, 826 P2d 89 (1992), Sup Ct review denied

Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Prohibition against deviate sexual intercourse with person “incapable of consent by reason of mental defect” is not vague under federal constitutional standards. Anderson v. Morrow, 371 F3d 1027 (9th Cir. 2004)

LAW REVIEW CITATIONS: 51 OLR 501-504 (1972)

163.412

NOTES OF DECISIONS

Availability of defense that penetration was part of medically recognized treatment or diagnostic procedure is not limited to medical personnel. State v. Ketchum, 206 Or App 635, 138 P3d 860 (2006), Sup Ct review denied

163.415

NOTES OF DECISIONS

Under this section, legislative intent is to prohibit sexual abuse of consenting minors, and all four types of legal incapacity set out in ORS 163.315 are intended to apply to this section. State v. Landino, 38 Or App 447, 590 P2d 737 (1979), Sup Ct review denied

Language of this section does not, by itself, make sexual abuse a lesser included offense in charge of attempted rape in the first degree. State v. Sears, 70 Or App 537, 689 P2d 1324 (1984)

Indictment for sexual abuse was proper where issue was raised whether defendant touched area that person he touched subjectively considered intimate and that defendant knew this or should have recognized area to be one that would objectively be known to be intimate part by any reasonable person. State v. Woodley, 306 Or 458, 760 P2d 884 (1988)

Where complaint alleged that defendant touched victim’s buttocks, facts could constitute sexual abuse in second degree. State v. Williams, 96 Or App 543, 773 P2d 25 (1989), Sup Ct review denied

Where defendant did not demonstrate to trial court how evidence would support conviction for sexual abuse in second degree but not for rape, trial court did not err in refusing to instruct jury on lesser offense. State v. Abraham, 102 Or App 369, 794 P2d 809 (1990), Sup Ct review denied

Proof of incapacity to consent for purposes of greater offense of sexual abuse in first degree (ORS 163.427) also proves element of lack of consent under this section. State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

2007 version of statute does not proscribe conduct by which person causes another person to touch semen or other fluids expelled from actor’s body. State v. Serafin, 241 Or App 239, 249 P3d 160 (2011)

COMPLETED CITATIONS: State v. Stich, 5 Or App 511, 484 P2d 861 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 68 OLR 255 (1989)

163.425

NOTES OF DECISIONS

“Sexual contact” in this statute is applicable to more than the reproductive organs. State v. Pagel, 16 Or App 412, 518 P2d 1037 (1974), Sup Ct review denied

Sexual abuse in the first degree was held not to be a lesser-included offense of attempted rape. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)

Where defendant opposed state’s motion, to consolidate both attempted rape and sexual abuse 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)

Sexual abuse charge was merged in sodomy conviction where first sexual contact and at least one act of sodomy were not so separated in time, intervening events, or other circumstances as not to be consecutive steps in sodomy. State v. Harris, 287 Or 335, 599 P2d 456 (1979)

In prosecution under this section, evidence that defendant was being sexually fondled by his wife and that he attempted to expose himself to children in back seat of his car was probative of sexual arousal and was therefore relevant evidence of sexual contact with victim. State v. Fitch, 47 Or App 205, 613 P2d 1108 (1980)

Where defendant drove victim substantial distance in his pickup truck and detained her for over eight hours, this was not type of minimal displacement incidental to commission of sodomy so failure to merge kidnapping and sodomy convictions and sentences was not error. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Failure to merge sodomy and sexual abuse convictions was not error where events were separated by several hours, occurred in different locations and settings, and were separated by a number of intervening events. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Language of this section does not, by itself, make sexual abuse a lesser included offense in charge of attempted rape in the first degree. State v. Sears, 70 Or App 537, 689 P2d 1324 (1984)

Indictment sufficiently alleged sexual abuse in the first degree, because allegation of “sexual contact” includes by definition assertion that “sexual” or “other intimate parts” were touched. State v. Taylor, 94 Or App 538, 765 P2d 1257 (1988)

Where defendant approached 7-year-old girl and 9-year-old girl separately in department store and touched buttocks, there was evidence from which rational trier of fact could conclude girls both considered their buttocks as intimate and from which trier of fact could have found that reasonable person would have known girls’ buttocks were intimate under circumstances. State v. Stacy, 113 Or App 141, 830 P2d 624 (1992), Sup Ct review denied

First degree sexual abuse charged under pre-1991 version of this section is subject to statute of limitations applicable to same offense under ORS 163.427. State v. Sharp, 151 Or App 122, 949 P2d 1230 (1997), Sup Ct review denied

Lack of consent by victim may be actual or may result from victim’s lack of capacity to consent because victim was under 18 years of age. State v. Stamper, 197 Or App 413, 106 P3d 172 (2005), Sup Ct review denied; State v. Simonson, 243 Or App 535, 259 P3d 962 (2011)

Sentence for having sex with minor 16 or 17 years old on theory that minor cannot legally consent violates Article I, section 16 of state constitution if sentence exceeds sentence allowable for having sex with minor under 16 years old. State v. Simonson, 243 Or App 535, 259 P3d 962 (2011)

LAW REVIEW CITATIONS: 68 OLR 255 (1989)

163.427

NOTES OF DECISIONS

Where defendant was charged only with sodomy and jury could not rationally and consistently conclude that he intended only sexual abuse, evidence did not support instruction for attempted sexual abuse. State v. Fox, 111 Or App 362, 826 P2d 89 (1992), Sup Ct review denied

Photographs of victims’ partially nude bodies were sufficient to show substantial step toward commission of sexual abuse in first degree. State v. Williams, 313 Or 19, 828 P2d 1006 (1992)

Proof of incapacity to consent also proves element of lack of consent for lesser included offense of sexual abuse in third degree (ORS 163.415). State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

Harassment by touching sexual or intimate parts of another (ORS 166.065) is not lesser included offense of sexual abuse in first degree. State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied

Presence of more than one element that converts lower degree of sexual abuse to higher degree of sexual abuse does not convert defendant’s single act into separate crimes. State v. Parkins, 346 Or 333, 211 P3d 262 (2009)

“Subjected to forcible compulsion” describes conduct that is material element requiring proof of culpable mental state. State v. Nelson, 241 Or App 681, 251 P3d 240 (2011)

To be forcible compulsion, act must cause or result in particular instance of sexual contact that is focus of charge. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)

Use of physical force constitutes forcible compulsion is: 1) greater in degree or different in kind from simple act of touching intimate part of another; and 2) sufficient to compel victim to submit to or engage in sexual contact against victim’s will. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)

163.435

NOTES OF DECISIONS

Agreement, after negotiations by father of girl, to accept $5,000 from father of defendant for “loss of face” resulting from intercourse between defendant and girl was not enforceable civil compromise under ORS 135.705 requiring dismissal of charge of contributing to sexual delinquency of minor as such agreement did not acknowledge satisfaction in writing by “the person injured.” State v. Phak, 91 Or App 160, 754 P2d 31 (1988)

163.445

NOTES OF DECISIONS

Defendant, in trial for rape and sodomy, was not entitled to instruction under this section where complainant’s age was not alleged though there was testimony complainant was under 18. State v. Green, 32 Or App 471, 574 P2d 356 (1978)

163.465

NOTES OF DECISIONS

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)

Where officers walked onto property and peered into defendant’s car, observing defendant and companion engaged in sexual act, which defendant conceded could not lawfully be performed in public place, judgment of acquittal on charge of public indecency was required as necessary element of public indecency is that crime be committed while person committing it is in or in view of public place. State v. Culmsee, 91 Or App 63, 754 P2d 11 (1988), Sup Ct review denied

This section does not fall within either exception in United States Sentencing Guidelines §4A1.2(c) and was thus properly included in defendant’s criminal history for sentencing purposes. U.S. v. Martinez, 905 F2d 251 (9th Cir. 1990)

Where city ordinance did not require culpable mental state for indecent exposure, ordinance did not conflict with this section because legislature did not intend to permit conduct not prohibited by this section. City of Portland v. Jackson, 316 Or 143, 850 P2d 1093 (1993)

Previous finding of guilty except for insanity is not “prior conviction” for purposes of elevating class of offense. State v. Saunders, 195 Or App 357, 97 P3d 1261 (2004), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 435 (1972); 29 WLR 129 (1993)

163.467

NOTES OF DECISIONS

Working area means open space within building, or section of building set aside for specific purpose, that is adequate to permit person to perform activity that requires person to exert strength or manipulate faculties or to engage in labor, task or duty that affords person their livelihood. State v. Miller, 242 Or App 572, 256 P3d 171 (2011)

163.475

See annotations under ORS 40.210.

163.505 to 163.575

LAW REVIEW CITATIONS: 51 OLR 428 (1972)

163.515

NOTES OF DECISIONS

Even though not convicted, finding that accused committed crimes of forgery, unsworn falsification and bigamy was sufficient to disbar attorney. In re Kirkman, 313 Or 181, 830 P2d 206 (1992)

LAW REVIEW CITATIONS: 51 OLR 435 (1972)

163.525

NOTES OF DECISIONS

This section is applicable to stepfather who has sexual intercourse with stepdaughter over age of 18. State v. Buck, 92 Or App 130, 757 P2d 861 (1988), Sup Ct review denied

This section is not unconstitutionally vague or overbroad and does not deny defendant equal protection. State v. Buck, 92 Or App 130, 757 P2d 861 (1988), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 435, 513 (1972)

163.535

NOTES OF DECISIONS

To commit crime of child abandonment, child must be deserted in place which subjects child to hazard of personal injury. State v. Laemoa, 20 Or App 516, 533 P2d 370 (1975), Sup Ct review denied

LAW REVIEW CITATIONS: 55 OLR 375-379 (1976)

163.545

NOTES OF DECISIONS

Legislative intent is clearly that this section compliment ORS 163.555 (criminal nonsupport) and reach two different types of conduct, so where defendant left child unattended in car, causing death, defendant’s acts of omission were subject to prosecution under this section rather than ORS 163.555. State v. Rosen, 38 Or App 107, 589 P2d 1132 (1979)

Where defendant’s husband had history of violence toward her and her children and she had been warned by case worker that his presence around children was risky, leaving their child in care of husband while she performed brief errand was not sufficient evidence of criminal negligence necessary to support conviction under this section. State v. McLaughlin, 42 Or App 215, 600 P2d 474 (1979), Sup Ct review denied

Since this section provides fair notice of conduct it forbids and proscribes only conduct which constitutes gross deviation from normal standard of care, it is not unconstitutionally vague. State v. Mills, 52 Or App 777, 629 P2d 861 (1981), Sup Ct review denied

Though sanitary conditions of defendant’s home were deplorable, defendant’s leaving child with older brothers and sisters for one to two hours while grocery shopping did not constitute leaving her “unattended.” State v. Forcum, 58 Or App 5, 646 P2d 1356 (1982)

Where defendant left children alone in house at night to attend party at tavern, adults who lived in house were cigarette smokers and matches and candles were lying around and children died from house fire there was sufficient evidence to find defendant guilty of child neglect under this section. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)

For defendant to be guilty under this section, there must be sufficient evidence of both factual elements of endangering welfare of child and mental state or culpability element. State v. Goff, 297 Or 635, 686 P2d 1023 (1984)

Offense requires proof that: 1) leaving child unattended was likely to endanger health and welfare of child; 2) risk of harm occurring was substantial and unjustifiable; and 3) defendant’s lack of awareness of risk of harm was gross deviation from normal standard of care. State v. Paragon, 195 Or App 265, 97 P3d 691 (2004)

163.547

NOTES OF DECISIONS

Allowing child to stay on premises is identical to permitting child to remain in place, as described in ORS 163.575, therefore offense of endangering welfare of minor merges with offense of child neglect. State v. Reiland, 153 Or App 601, 958 P2d 900 (1998)

163.555

NOTES OF DECISIONS

Indictment which contained all statutory elements of offense was sufficient, and was not invalid for failure to allege that defendant’s paternity had previously been determined in civil action. State v. Gates, 31 Or App 353, 570 P2d 670 (1977), Sup Ct review denied

Legislature did not intend that single episode of misconduct in connection with care of child be punished as felony under this section. State v. Rosen, 38 Or App 107, 589 P2d 1132 (1979)

Under evidence that there was no negligent non-payment of child support, use of word “negligent” was harmless error. State v. Gartzke, 39 Or App 463, 592 P2d 1040 (1979), Sup Ct review denied

Under this section, ex-wife’s attempts to prevent defendant from visiting son and to prejudice child against father did not provide defendant with “lawful excuse” for failure to provide support. State v. Reed, 45 Or App 185, 608 P2d 175 (1980)

Phrase “without lawful excuse” in this section is not unconstitutionally vague and state satisfied its burden by proving: 1) court mandate that defendant pay child support; 2) ability to generate income; and 3) no payment toward child support obligation. State v. Timmons, 75 Or App 678, 706 P2d 1018 (1985), Sup Ct review denied

Phrase “without lawful excuse” is not unconstitutionally vague. State v. West, 84 Or App 679, 735 P2d 26 (1987), Sup Ct review denied

In exercising discretion under ORS 137.540, court may not exceed sentence defined by other statute. State v. Stockton, 105 Or App 162, 803 P2d 1227 (1991)

163.575

NOTES OF DECISIONS

Witnessing act of sexual conduct requires that conduct be performed live in front of victim. State v. Atkeson, 152 Or App 360, 954 P2d 181 (1998)

Permitting child to remain in place is identical to allowing child to stay on premises, as described in ORS 163.547, therefore offense of endangering welfare of minor merges with offense of child neglect. State v. Reiland, 153 Or App 601, 958 P2d 900 (1998)

Participant in act of sexual conduct may also “witness” that conduct. State v. Goddard, 178 Or App 538, 37 P3d 1046 (2002), Sup Ct review denied

To “knowingly” permit person under 18 years of age to enter or remain in place where unlawful activity involving controlled substances is maintained or conducted requires knowledge that person is minor. State v. Dixon, 191 Or App 503, 83 P3d 385 (2004)

Person who has authority over minor and, through exercise of that authority, makes it possible for minor to be exposed to unlawful drug activity permits that minor to enter or remain in place where unlawful activity involving controlled substances is maintained or conducted. State v. McBride, 242 Or App 594, 256 P3d 174 (2011)

163.577

LAW REVIEW CITATIONS: 75 OLR 829 (1996); 80 OLR 1 (2001)

163.665

NOTES OF DECISIONS

Use of term “lewd” is not unconstitutionally vague. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

“Lewd exhibition” means exhibition with intent of stimulating lust or sexual desire of person who views exhibition. State v. Meyer, 120 Or App 319, 852 P2d 879 (1993)

163.670

NOTES OF DECISIONS

“Permits” means to allow or make possible. State v. Porter, 241 Or App 26, 249 P3d 139 (2011)

Person who participates in conduct may be observer of display of sexually explicit conduct between coparticipant and child. State v. Tyson, 243 Or App 94, ___ P3d ___ (2011)

163.672

See annotations under ORS 163.684.

163.684

NOTES OF DECISIONS

Under former similar statute (ORS 163.672)

Prohibition does not violate free speech rights because it is directed to eliminating incentive for actions harmful to children and not to communicative substance of material. State v. Ready, 148 Or App 149, 939 P2d 117 (1997), Sup Ct review denied; State v. Fleming/Heckathorne, 159 Or App 565, 979 P2d 771 (1999), Sup Ct review denied

In general

Statute is directed at preventing harm to children, not at controlling content of speech. State v. Dimock, 174 Or App 500, 27 P3d 1048 (2001), Sup Ct review denied; State v. Betnar, 214 Or App 416, 166 P3d 554 (2007)

“Other visual recording” is limited to depictions of real children and real abuse, not virtual or invented images. State v. Dimock, 174 Or App 500, 27 P3d 1048 (2001), Sup Ct review denied

Intent to print matter does not require intent to exhibit printed matter to third party. State v. Bray, 197 Or App 12, 104 P3d 631 (2005), aff’d 342 Or 711, 160 P3d 983 (2007)

“Display” means to show child pornography publicly or to other individuals. State v. Bray, 342 Or 711, 160 P3d 983 (2007)

163.686

NOTES OF DECISIONS

Under former similar statute (ORS 163.680)

Because production of communicative material is incentive for child sexual abuse, prohibiting material depicting actual abuse is reasonable regulation of by-product of crime, not unconstitutional restriction on communicative substance of material. State v. Stoneman, 323 Or 536, 920 P2d 535 (1996)

In general

Person who uses computer to access Internet web page and intentionally call up image of sexually explicit conduct involving child does not possess or control that image. State v. Barger, 349 Or 553, 247 P3d 309 (2011)

163.690

NOTES OF DECISIONS

Where district court’s order in child pornography prosecution allowed admission of evidence as to defendants’ mistake of fact concerning age of actress who appeared in film and alleged error not correctable by any other means and also raised issue of first impression whether First Amendment required mistake of age defense be available in prosecution under child pornography statute, writ of mandamus appropriate. U.S. v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F 2d 534 (9th Cir. 1988)

163.700

NOTES OF DECISIONS

Definition of “nudity” does not apply to pubic area of prepubescent person. State v. Mayes, 220 Or App 385, 186 P3d 293 (2008)

“Post-pubescent” means any time after onset of puberty. State v. Mayes, 220 Or App 385, 186 P3d 293 (2008)

163.730 to 163.750

NOTES OF DECISIONS

Requirement in force prior to 1995 amendments that conduct be “without legitimate purpose” was unconstitutionally vague. State v. Norris-Romine/Finley, 134 Or App 204, 894 P2d 1221 (1995), Sup Ct review denied

163.730

NOTES OF DECISIONS

Inclusion of potentially protected speech as conduct that court may elect to prohibit by protective stalking order does not make statute facially overbroad. Shook v. Ackert, 152 Or App 224, 952 P2d 1044 (1998)

“Contact” includes acts that, when learned of, give rise to unwanted relationship or association between petitioner and respondent. Boyd v. Essin, 170 Or App 509, 12 P3d 1003 (2000), Sup Ct review denied

Where speech-based contact is combined with nonexpressive conduct, speech-based contact may create alarm without containing unequivocal threat. Crop v. Crop, 220 Or App 592, 188 P3d 364 (2008)

163.732

NOTES OF DECISIONS

Where alleged activity is carried out by communicative means, proof of stalking requires establishment of actual or substantive threat. State v. Rangel, 146 Or App 571, 934 P2d 1128 (1997), aff’d 328 Or 294, 977 P2d 379 (1999)

Mental element “knowingly,” when used in conjunction with requirements of actual alarm by addressee and subjective and objective reasonableness of alarm, is sufficiently specific to prevent overbroad application to protected speech. State v. Rangel, 328 Or 294, 977 P2d 379 (1999)

163.738

NOTES OF DECISIONS

Statutory and constitutional rights to counsel do not apply to hearing for issuance of court stalking protective order because subject is not defendant in criminal action. Johnson v. McGrew, 137 Or App 55, 902 P2d 1209 (1995), Sup Ct review denied

Inclusion of potentially protected speech as conduct that court may elect to prohibit by protective stalking order does not make statute facially overbroad. Shook v. Ackert, 152 Or App 224, 952 P2d 1044 (1998)

Where source of reasonable alarm is causally unrelated to action constituting contact, prerequisites for stalking protective order are not met. Schiffner v. Banks, 177 Or App 86, 33 P3d 701 (2001)

Averments required in stalking complaint form, without presentation of additional evidence at hearing, do not provide basis for issuance of permanent stalking protective order. Lomax v. Carr, 194 Or App 518, 95 P3d 1163 (2004)

163.741

NOTES OF DECISIONS

Criteria for terminating unlimited duration stalking protective order are comparable to criteria for terminating Family Abuse Prevention Act restraining order. Edwards v. Biehler, 203 Or App 271, 124 P3d 1256 (2005)

163.744

NOTES OF DECISIONS

Rules of civil procedure requiring complaint to contain additional or different information or allegations are inapplicable to stalking complaint. Lomax v. Carr, 194 Or App 518, 95 P3d 1163 (2004)

163.750

NOTES OF DECISIONS

Collateral bar doctrine did not prevent challenge at violation hearing to constitutionality of stalking protective order issued under pre-1995 version of ORS 163.738 because issuance and violation statutes were in pari materia. State v. Orton, 137 Or App 339, 904 P2d 179 (1995)

Apprehension caused by subsequent contact must be objectively reasonable. State v. Ryan, 237 Or App 317, 239 P3d 1016 (2010), Sup Ct review allowed

Where alleged activity is carried out by communicative means, proof of stalking requires establishment of unequivocal threat. State v. Ryan, 237 Or App 317, 239 P3d 1016 (2010), Sup Ct review allowed