Chapter 167
ATTY. GEN. OPINIONS: Exemption of
nuisance laws from constitutional requirement for payments based on government
regulations restricting use of property, (2001) Vol
49, p 284
LAW REVIEW CITATIONS: 51 OLR 427-637
(1972)
167.002 to 167.027
LAW REVIEW CITATIONS: 51 OLR 428, 435,
523 (1972)
167.002
NOTES OF DECISIONS
Where
city’s mandatory minimum penalty is harsher than state’s
for same conduct, city’s penalty is invalid under Article XI, Section 2 of
Oregon Constitution as incompatible with state criminal law. City of Portland
v. Dollarhide, 300 Or 490, 714 P2d 220 (1986)
167.007
NOTES OF DECISIONS
Absent
evidence that defendant offered to engage in sexual conduct for a fee,
defendant could not be found guilty of attempt to commit prostitution within
meaning of ORS 161.405. State v. Brown, 31 Or App 501, 570 P2d 1001 (1977)
Complaint
which alleged that defendants did “offer and agree to engage in sexual conduct
in return for a fee” stated facts sufficient to state a crime. State v. East,
31 Or App 743, 571 P2d 195 (1977)
Complaint
was not defective for failing to allege that defendant “intentionally” agreed
to pay fee for sexual conduct. State v. Huie, 292 Or
335, 638 P2d 480 (1982)
Where
city’s mandatory minimum penalty is harsher than state law minimum for same
conduct, city’s penalty is invalid under Article XI, Section 2 of Oregon
Constitution as incompatible with state criminal law. City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986)
This
section falls within historical exception to section 8, Article I of Oregon
Constitution, which that provision demonstrably was not intended to reach.
State v. Grimes, 85 Or App 159, 735 P2d 1277 (1987), Sup Ct review denied
For
venue purposes, offer or agreement transmitted over telephone simultaneously
occurs where each party to conversation is located. State v. Harris, 242 Or App
438, 256 P3d 156 (2011)
LAW REVIEW CITATIONS: 55 OLR 553-566
(1976)
167.012
NOTES OF DECISIONS
Actions
of manager of “adult theater” in paying man and woman to perform sex acts
before audience constituted violation of this section. State v. Kravitz, 14 Or App 243, 511 P2d 844 (1973), Sup Ct review
denied
The
corroboration requirement must be met for a conviction for the inchoate crime
of attempting to promote prostitution. State v. Montgomery, 26 Or App 817, 554
P2d 578 (1976)
Conviction
under this section merged with conviction under charge of compelling
prostitution (ORS 167.017) where same evidence was used to convict defendant of
both crimes. State v. Williams, 40 Or App 227, 594 P2d 1281 (1979)
Where
evidence proving promoting prostitution was part of larger body of evidence
proving attempted compelling prostitution, it was error for trial court to
separately convict defendant for both promoting prostitution (under this
section) and attempted compelling prostitution (under ORS 167.017). State v.
Barnett, 42 Or App 69, 600 P2d 877 (1979)
Application
of this section to live show does not conflict with section 8, Article I of
Oregon Constitution, because focus is on preventing harmful effects of
prostitution without regard to presence or absence of circumstances adding
expressive element to conduct. State v. Ciancanelli,
339 Or 282, 121 P3d 613 (2005)
COMPLETED CITATIONS: State v. Leach, 6
Or App 154, 487 P2d 114 (1971)
167.017
NOTES OF DECISIONS
Though
initial instruction in prosecution under this section was abstract means of
instructing jury that minor’s consent is not defense to compelling
prostitution, reinstruction directly stated applicable law and removed
confusion of initial instruction. State v. Wood, 34 Or App 569, 579 P2d 294
(1978), Sup Ct review denied
Evidence
that, inter alia, defendant prevailed
on minors to engage in prostitution by providing them the opportunity and manipulating
them was sufficient for conviction under this section and no showing of threats
or force was required. State v. Williams, 40 Or App 227, 594 P2d 1281 (1979)
Where
evidence proving promoting prostitution was part of larger body of evidence
proving attempted compelling prostitution, it was error for trial court to
separately convict defendant for both promoting prostitution (under ORS
167.012) and attempted compelling prostitution (under this section). State v.
Barnett, 42 Or App 69, 600 P2d 877 (1979)
Where
evidence supported inference that defendant’s purpose was, at minimum, to
compel another into prostitution, that satisfies requirements of this section.
State v. Odoms, 117 Or App 1, 844 P2d 217 (1992)
Terms
“induce” and “compel” apply to third party promoter of prostitution and do not
apply to patron of prostitute. State v. Vargas-Torres, 237 Or App 619, 242 P3d
619 (2010)
LAW REVIEW CITATIONS: 51 OLR 430 (1972)
167.027
LAW REVIEW CITATIONS: 51 OLR 523 (1972)
167.054
NOTE:
Repealed as of August 2, 2011
NOTES OF DECISIONS
This
provision is overbroad and violative of First
Amendment. Powell’s Books, Inc. v. Kroger, 622 F3d 1202 (9th Cir. 2010)
167.057
NOTES OF DECISIONS
2010
version of this provision is overbroad and violative
of First Amendment. Powell’s Books, Inc. v. Kroger, 622 F3d 1202 (9th Cir.
2010)
167.060 to 167.100
NOTES OF DECISIONS
Prohibitions
against obscene live performance or distribution of obscene material do not
violate federal or state constitutional right of free speech. Film Follies v.
Haas, 22 Or App 365, 539 P2d 669 (1975)
In
a federal obscenity prosecution, it was a question for the trial court whether
the people of Oregon approved of conduct then permitted by these sections, or
whether community standards were at variance with these sections. U.S. v. Danley, 523 F2d 369 (1975)
LAW REVIEW CITATIONS: 51 OLR 428, 429,
523, 537-552, 556 (1972)
167.060
LAW REVIEW CITATIONS: 53 OLR 375 (1974)
167.062
NOTES OF DECISIONS
State
is not required to prove that performance violates standards applicable to
establish material as obscene. State v. Tidyman, 54
Or App 640, 635 P2d 1355 (1981), Sup Ct review denied
Proof
only that show spectators touched defendant while placing money in defendant’s
costume was not adequate to show defendant was apparently sexually stimulated
or gratified. State v. House, 299 Or 78, 698 P2d 951 (1985)
This
section is facially invalid under section 8, Article I of Oregon Constitution.
State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005)
167.065
NOTE:
Repealed as of January 1, 2008
NOTES OF DECISIONS
The
prohibition against furnishing minors any material depicting nudity is
unconstitutionally overbroad. State v. Frink, 60 Or
App 209, 653 P2d 553 (1982)
Prohibition
against furnishing minors with any
printed matter containing obscenities no matter how incidental objectional language is in context of work as whole is
unconstitutionally overbroad. State v. Woodcock, 75 Or App 659, 706 P2d 1012
(1985), Sup Ct review denied
Prohibition
against furnishing materials that depict sexual conduct or sexual excitement
applies to some forms of constitutionally protected expression and therefore is
overbroad. State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review
denied
167.080
LAW REVIEW CITATIONS: 53 OLR 390 (1974)
167.085
NOTES OF DECISIONS
State
has the burden of proving elements of obscenity beyond a reasonable doubt. Film
Follies v. Haas, 22 Or App 365, 539 P2d 669 (1975)
Defense
available for certain instances of “showing, exhibition or display” of obscene
materials to minors is insufficient to prevent prohibitory statute ([former]
ORS 167.065) from being overbroad because defense does not reach all protected
actions constituting “furnishing” of obscene materials under [former] ORS
167.065. State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), Sup Ct review
denied
LAW REVIEW CITATIONS: 55 OLR 383-391
(1976)
167.087
NOTE:
Repealed as of January 1, 2008
NOTES OF DECISIONS
It
was not abuse of discretion for trial court to deny defendant’s request to show
“comparable” films for purpose of establishing community standards, especially
absent showing that such films had received “judicial approval” rather than
mere nonprosecution or failure to convict. State v. Tidyman, 30 Or App 537, 568 P2d 666 (1977) Sup Ct review
denied
Where
evidence was sufficient for jury to infer defendant had possession and not mere
custody of obscene materials, admission of descriptive list of films was
relevant to show knowledge that particular film was obscene, and where
defendant was charged with and found guilty of selling obscene material at one
time and possessing additional obscene material at a later time, conviction for
violation of two counts, selling and possessing, was proper. State v. Cossett, 34 Or App 113, 578 P2d 423 (1978), Sup Ct review
denied
Definition
of obscene matter is unconstitutionally vague and overbroad. State v. Henry, 78
Or App 392, 717 P2d 189 (1986), aff’d 302 Or
510, 732 P2d 9 (1987)
LAW REVIEW CITATIONS: 67 OLR 507 (1988)
167.090
LAW REVIEW CITATIONS: 53 OLR 390 (1974)
167.100
ATTY. GEN. OPINIONS: Ordinance
prohibiting public nudity not preempted, (1976) Vol
38, p 230
167.117 to 167.162
ATTY. GEN. OPINIONS: Construing
provisions against promotion of social gambling, (1971) Vol
35, p 1004
167.117
NOTES OF DECISIONS
The
legislature did not intend free play pinball machines which are used as payoff
gambling devices to be immune from seizure under ORS 167.162. State v. Wright,
21 Or App 659, 537 P2d 130 (1975)
Principal
evil legislature sought to prevent by this section was “taking over” of
operation of bingo games on behalf of charitable organizations by other
organizations specializing in operating such activities for profit and who
would charge fee or collect percentage for their work. State v. Johnston, 56 Or
App 849, 643 P2d 666 (1982), Sup Ct review denied
Where
defendant promoted bingo game sponsored by fraternal organization in which
members of chapter were paid daily wage to assist, games were unlawful gambling
not included in exception of this section for games in which no person other
than organization or player profits. State v. Johnston, 56 Or App 849, 643 P2d
666 (1982), Sup Ct review denied
“Free
play” electric game machines are not “gambling devices” even though patrons
were given cash rather than free plays. State v. Langan,
293 Or 654, 652 P2d 800 (1982)
Where
defendants, club employees, received tips from poker games, games were not
social games but illegal gambling. State v. Hansen, 108 Or App 609, 816 P2d 706
(1991)
ATTY. GEN. OPINIONS: Authority of
charitable organizations to conduct lottery and other games for profit, (1974) Vol 37, p 321; authority of cities to regulate free play
pinball machines, (1975) Vol 37, p 740; effect of
Constitutional amendment authorizing legislature to adopt legislation which
permits certain organizations to conduct gambling, (1977) Vol
38, p 857; income resulting from setting up game and bankrolling participant as
legitimate income from social game, (1977) Vol 38, p
1455; operation of “pull tab bingo” by charitable corporation, (1981) Vol 41, p 309
167.122
NOTES OF DECISIONS
An
indictment merely using the language of this section, “knowingly promote
unlawful gambling,” is sufficient. State v. Cannon, 17 Or App 379, 521 P2d 1326
(1974), Sup Ct review denied
It
was not necessary that defendant have actual knowledge that what he did was
illegal to sustain the conviction under this section. State v. Wright, 21 Or
App 659, 537 P2d 130 (1975)
Where
defendant promoted bingo game sponsored by fraternal organization in which
members of chapter were paid daily wage to assist, games were unlawful gambling
not included in exception of ORS 167.117 for games in which no person other
than organization or player profits. State v. Johnston, 56 Or App 849, 643 P2d
666 (1982), Sup Ct review denied
A
defendant’s guilt requires knowledge of facts and conditions that make gambling
unlawful, rather than mere knowledge of gambling itself. State v. Langan, 293 Or 654, 652 P2d 800 (1982)
Complaint
charging defendant with promoting gambling in second degree was insufficient to
survive demurrer when complaint merely mirrored language of statute and
contained no identifying facts or acts. State v. Cooper, 78 Or App 237, 715 P2d
504 (1986)
Tavern
owner’s conviction under this section was reversed where third person paid
patron of tavern for free games won on video poker machine, tavern owner did
not arrange for that purchase, and there was no evidence that tavern owner was
aware that third person had ever previously paid patrons for free games. State
v. Ferracini, 105 Or App 420, 805 P2d 149 (1991)
167.132
NOTES OF DECISIONS
Requirement
of “knowledge of the contents thereof” saves this section from
unconstitutionality for vagueness. State v. Yancey, 32 Or App 477, 574 P2d 358
(1978)
Where
cards seized as evidence of gambling violation appeared to be kind of unvalidated merchandise token, court permitted return of
portion of cards to defendant since it was not certain that such cards were of
type used for lottery purposes. State v. Terry, 37 Or App 333, 587 P2d 1033
(1978)
167.147
NOTES OF DECISIONS
Employment
contract, which required employe to design and
produce devices which would be used for gambling, constituted contract for
illegal purpose and was thus unenforceable as against public policy. Hendrix v.
McKee, 281 Or 123, 575 P2d 134 (1978)
“Free
play” electric game machines are not “gambling devices” even though patrons
were given cash rather than free plays. State v. Langan,
293 Or 654, 652 P2d 800 (1982)
COMPLETED CITATIONS: State v.
Wheelhouse, 6 Or App 151, 486 P2d 1292 (1971)
167.162
NOTES OF DECISIONS
Under former similar statute (ORS
167.555)
This
section did not require that a machine be unlawful per se, but only that it be
operated unlawfully. Smith v. One Super Wild Cat Console Mach., 10 Or App 587,
500 P2d 498 (1972), Sup Ct review denied
In general
Machines
which are mechanically free play “amusement devices” but used as gambling
devices under ORS 167.117 (4) are subject to seizure under this section. State
v. Wright, 21 Or App 659, 537 P2d 130 (1975)
167.207
COMPLETED CITATIONS: State v. O’Brien, 6
Or App 34, 485 P2d 434, 486 P2d 592 (1971), aff’d
262 Or 30, 496 P2d 191 (1972); State v. Williams, 6 Or App 189, 487 P2d 100
(1971), Sup Ct review denied
167.212
NOTES OF DECISIONS
Where
defendant twice offered prescription to pharmacist, knowing person named in
prescription did not exist, he uttered false prescription under this section.
State v. Vaughn, 37 Or App 191, 586 P2d 804 (1978), Sup Ct review denied
167.222
NOTES OF DECISIONS
Evidence
that defendant entered residence five minutes before police arrived, for
purpose of negotiating repair of car, that large quantity of hashish was
contained in covered boxes on table within residence, and that defendant
suspected that plastic bag on table did contain drugs, was insufficient to show
that defendant knowingly remained in a place resorted to by drug users. State
v. West, 31 Or App 1177, 572 P2d 349 (1977)
This
section, in prohibiting “frequenting a place where controlled substances are
used” is not unconstitutionally vague under U.S. or Oregon Constitution. State
v. Pyritz, 90 Or App 601, 752 P2d 1310 (1988)
Evidence
that defendant was asleep in his underwear on second floor of house, that house
was heavily fortified, that drugs had been sold in house and that another
person was found flushing drugs down toilet on first floor while defendant
slept upstairs constituted probable cause that defendant remained in house and
permitted drug use on premises within meaning of this section. State v.
Anderson, 95 Or App 178, 768 P2d 427 (1989)
Frequenting
place where controlled substances are used is not lesser included offense of
unlawful possession of controlled substance. State v. Martz, 103 Or App 105,
795 P2d 616 (1990)
167.238
NOTES OF DECISIONS
Presumption
that person possessing controlled substance knows nature of substance does not
require that jury consider knowledge established unless disproved by defendant,
but merely states rule that jury may choose to infer guilty knowledge from fact
of possession. State v. Offord, 14 Or App 195, 512
P2d 1375 (1973)
167.247
NOTE:
Repealed July 23, 1997; ORS 167.248 enacted in lieu
See
annotations under ORS 167.248.
167.248
NOTES OF DECISIONS
Under former similar statute (ORS
167.247)
The
decision of a court responsible for the trial of a criminal defendant to
release a vehicle seized pursuant to this section to the defendant is not subject
to collateral attack by the state. State v. A 1963 Corvette Auto., 10 Or App
630, 501 P2d 330 (1972)
A
court responsible for the trial of a criminal defendant has concurrent
jurisdiction over a vehicle seized pursuant to this section to decide the
forfeiture question. State v. A 1963 Corvette Auto., 10 Or App 630, 501 P2d 330
(1972)
A
vehicle may be forfeited under this section if the owner had knowledge that it
was transporting contraband; the owner need not be convicted of possession of
the contraband. Blackshear v. State, 17 Or App 364, 521 P2d 1320 (1974)
The
state is not required to move for forfeiture in the criminal proceeding but
rather may choose to proceed on a separate civil action. State ex rel Haas v. Ore. 1965 Ford Auto., Ore. License No. HBH029,
19 Or App 879, 529 P2d 410 (1974), Sup Ct review denied
Where
vehicle was seized pursuant to this section forfeiture took effect immediately,
and thus attempted subsequent transfer of lien interest in the vehicle could
not prevail. State v. Crampton, 30 Or App 779, 568
P2d 680 (1977) Sup Ct review denied
Where
state produced no evidence to support finding that automobile confiscated in
connection with search of defendant’s home, where illegal drugs were
discovered, was used for unlawful transportation of narcotics, state had no
right to automobile. State v. Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup
Ct review denied
Police
letter to defendant’s home, which was mailed on same day as state’s ex parte motion to confiscate automobile
was granted, and which did not inform defendant of time or place of hearing to
be held on confiscation of his automobile, was insufficient as notice. State v.
Glascock, 33 Or App 217, 576 P2d 377 (1978), Sup Ct review denied
Defendant,
arrested with cocaine in motor vehicle, was entitled to jury trial on issues of
unlawful transportation or concealment of controlled substances and such use of
vehicle by or with knowledge as vehicle owner. State v. Curran, 291 Or 119, 628
P2d 1198 (1981)
LAW REVIEW CITATIONS
Under former similar statute (ORS
167.247)
25
WLR 456 (1989); 69 OLR 170 (1990)
167.322
NOTES OF DECISIONS
Evidence
showing nonmalicious motivation for killing animal is
not character evidence. State v. Dan, 172 Or App 645, 20 P3d 829 (2001)
167.345
(formerly
167.860)
NOTES OF DECISIONS
This
section and [former] ORS 167.850 are related in the nature of establishing
different degrees of the same crime and are constitutional. Oregon Game Fowl
Breeders v. Smith, 15 Or App 487, 516 P2d 499 (1973), Sup Ct review denied
167.347
NOTES OF DECISIONS
Forfeiture
proceeding initiated during criminal action is special statutory proceeding
that is separate and distinct from pending criminal action. State v. Branstetter, 332 Or 389, 29 P3d 1121 (2001)
Appeal
from forfeiture order does not deprive trial court of jurisdiction to proceed
to trial on criminal matter that was predicate to initiation of forfeiture
action. State v. Branstetter, 332 Or 389, 29 P3d 1121
(2001)
Justice
of peace having jurisdiction over pending criminal action under ORS 167.315 to
167.333 or 167.340 also has jurisdiction over animal forfeiture proceeding. Stirton v. Trump, 202 Or App 252, 121 P3d 714 (2005)
167.350
NOTES OF DECISIONS
Under
1999 version of statute, authority of court to order repayment of reasonable
costs incurred in caring for each animal “subjected to abuse, neglect or
abandonment” was limited to costs related to specific animals that were subject
of crimes for which convictions were entered. State v. Marsh, 187 Or App 47, 66
P3d 541 (2003)
167.355
NOTES OF DECISIONS
Section
not overbroad because more than gathering to discuss cockfighting is required
to constitute promotion, preparation or participation in cockfighting. State v.
Albee, 118 Or App 212, 847 P2d 858 (1993), Sup Ct review denied
167.860
See
annotations under ORS 167.345.