Colinbensonresponseodea

12/12/2016 4:32:53 PM 16CR67881

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF HARNEY

6 STATE OF OREGON,

Case No. 16CR67881

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STATE'S RESPONSE TO DEFENDANT'S DEMURRER

Plaintiff,

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v.

9 LAWRENCE P. O'DEA, 10

Defendant.

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Defendant makes two arguments in his motion for demurrer; first that the statute, ORS

13 166.1601, under which he is accused of violating, is unconstitutionally vague and, second, that 14 the indictment is insufficiently particular.

15 1. ORS 166.180 Is Not Unconstitutionally Vague 16 ORS 166.180 provides, in pertinent part:

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"Any person who, as a result of failure to use ordinary care under the circumstances, wounds any other person with a bullet or shot from any firearm, or with an arrow from any bow ...."

[Formerly 163.310; 2011 c.597 ยงl62]

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21 To challenge a criminal statute as vague under the Oregon Constitution, a party must 22 show that: 23 "'The terms of a criminal statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render them liable to its

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We note that that Defendant cites "ORS 166.160" as the charge cited in the indictment. However, ORS 166.160 was repealed in 1971. Our response will address ORS 166.180, Negligently Wounding Another, the crime charged on the indictment.

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- STATE'S RESPONSE TO DEFENDANT'S DEMURRER Department of Justice 2250 McGilchrist Street SE, Suite 100 Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

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penalties.' State v. Graves, 299 Or 189, 195 (1985). A 'reasonable degree of certainty' about what conduct falls within the statute's prohibition is required; absolute certainty is not. State v. Cornell/Pinnell, 304 Or 27, 29-30 (1987). In addition to giving fair notice of prohibited conduct, a criminal statute must not be so vague as to allow a judge or jury unbridled discretion to decide what conduct to punish."

State v. Plowman, 314 Or 157, 160-161 (1992).

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By a plain language reading of ORS 166.180, titled "Negligently Wounding Another,"

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6 the meaning is explicitly clear that the conduct of wounding another person with a bullet from 7

any firearm, a shot from any firearm, or with an arrow from any bow is the prohibited action

8 when coupled with the requisite mens rea of "failure to use ordinary care under the 9 circumstances." State v. Orth, 35 Or App 235, 238 (1978) ("[T]he legislature, by using the 10 words 'failure to use ordinary care under the circumstances,' clearly intended a culpable mental 11 state."). Furthermore, a judge or jury would not have "unbridled discretion" in determining the 12 conduct to punish. The language in ORS 166.180 is narrowly tailored and would require a jury 13 to determine whether Mr. O'Dea wounded the victim with a bullet that was shot from a firearm 14 and whether Mr. O'Dea exercised ordinary care in doing so.

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The Plowman Court further found that the analysis under the US Constitution, much like

16 the Oregon standard described above, requires a showing that a criminal statute must provide a 17 "person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited," 18

Plowman, 314 Or at 162 (Referencing United States v. Murphy, 809 F.2d 1427, 1431 (9th Cir.

19 1987)). The statute must further "provide explicit standards so that those who enforce and apply 20 the law do not do so in an arbitrary or discriminatory fashion." Plowman, 314 Or at 163 21

(Referencing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503(1982)). As

22 discussed above, ORS 166.180 meets these criteria.

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Additionally, because there are no issues regarding a First Amendment challenge, the

24 analysis should be "whether the statue is constitutional as applied to defendant under these 25 circumstances," and not a general application of the statute. State v. Albee, 118 Or. App. 212, 26 216 (1993). First, Defendant fails to demonstrate that ORS 166.180 is unconstitutional when Page 2 - STATE'S RESPONSE TO DEFENDANT'S DEMURRER Department of Justice 2250 McGilchrist Street SE, Suite 100 Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

1 applied to his particular situation. Second, the State charged Defendant with wounding another 2 individual with a bullet from a firearm. This conduct fits squarely into the actions proscribed by 3 ORS 166.180. See State v. Drummond, 6 Or App 558, 562-563 (1971) (Court was not persuaded 4 by defendant's argument that the statute of Unlawful Possession of a Firebomb was 5 unconstitutionally vague and overbroad because it includes many "lawful, common, useful and 6 perfectly acceptable uses of flammable liquids.").

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For the foregoing reasons, the State requests that the Court deny the defendant's motion

8 to dismiss based on defendant's claim that the statue is unconstitutionally vague under Article 1, 9 sections 20 and 21, of the Oregon Constitution and under the Due Process Clause of the U.S. 10 Constitution.

11 2. The Indictment is Sufficiently Particular to Overcome Demurrer 12

Defendant moves for demurrer under ORS 135.630(2), specifically that the indictment

13 does not conform to ORS 132.550(7), which requires "[a] statement of the acts constituting the 14 offense in ordinary and concise language...in such a manner as to enable a person of common 15 understanding to know what is intended." The defendant further cites to Art. I, ยง11, of the 16 Oregon Constitution.

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Defendant argues that the indictment does not describe what constitutes "ordinary care."

18 Defendant apparently concedes that "...wound Robert Dempsey with a bullet from a firearm," is 19 sufficiently clear as to apprise the Defendant of what he is being accused of, but because the 20 State has not specifically described in the indictment language what Mr. O'Dea did or failed to 21 do that fell short of "ordinary care," the demurrer should be granted.

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"Not exercising reasonable care," under ORS 166.180 has been litigated before and was

23 found to be a culpability level. See State v. Orth, 35 Or App 235, (1978). The defendant in 24

Orth was found guilty of Negligently Wounding Another and he was given a criminal sentence.

25 He appealed and argued that because the language of the statue did not contain one of the four 26 culpability levels found in the criminal code, it was not a crime, so he should have received a Page 3 - STATE'S RESPONSE TO DEFENDANT'S DEMURRER Department of Justice 2250 McGilchrist Street SE, Suite 100 Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

1 violation sentence. The court found that the legislature had used "not exercising reasonable 2 care" as a culpability level and did not allow the demurrer. Id. at 238.

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There are too many criminal statues which are charged by describing the act without

4 describing the culpability level to list here, Assault would be an example. For example, Assault 5 in the Fourth Degree could be charged: "...did recklessly cause physical injury to [name of 6 victim] by striking him," without explaining what circumstances existed at the moment the 7

victim received physical injury that constituted recklessness. See State v. Wright, 167 Or App

8 297, adh'd to as mod on recoils, 169 Or App 78, rev den, 331 Or 334 (2000).

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Defendant's own authority supports the proposition that describing the circumstances

10 surrounding culpability is not generally required in criminal indictments. Defendant appears to 11 confuse "criminal intent" and "criminal culpability" in Defendant's Demurrer when he cites 12

State v. Sanders, 280 Or 685, (1977), because the intent the court is referring to is the intent to

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commit a crime once inside the building and not intent to commit burglary. The distinction may

14 appear subtle on the face of it, but there is no culpability level listed for the burglary itself, i.e.

15 simply entering or remaining in the building may not, in and of itself, be a crime, but it becomes 16 a crime if and when the person formulates the intent to commit a crime inside. Formulating the 17 18

intent to commit a crime within the building is the act, not the culpability level.

Similarly, in State v. Kincaid, 78 Or App 23 (1986), the underlying incidents of theft,

19 taken together, constituted the act of ORICO and without describing them in the indictment, the 20 State failed to allege an act. Failing to describe what activity constituted "promoting gambling," 21 in State v. Cooper, 78 Or App 237 (1986), fails for the same reason.

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However, in our case, the indictment is explicit: Mr. O'Dea wounded Mr. Robert

23 Dempsey with a bullet fired from a gun. This is the act stated as plainly as possible. The 24

culpability is his failing to act with ordinary care and, like in most other crimes, the culpability

25 prong of the statute need not be described and the Defendant's Demurrer should be denied on 26 those grounds.

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Moreover, the Court of Appeals in State v. Wright, recognized that in Sanders, Kincaid,

2 and Cooper, the crimes challenged were complex and open-ended, and due to the nature of the 3 charges and volume of discovery, the Court was unable to find that discovery could have 4 remedied the deficiencies in the accusatory instruments. Id. at 310-311. However, the Wright 5 decision did find that the challenged indictment language of "Assault in the Fourth Degree2," 6 "Recklessly Endangering Another Person3," and "Menacing4," were sufficiently definite and 7 certain to withstand a demurrer and that due to the nature of alleged crimes, "it is likely that 8 pretrial discovery...will dispel any uncertainty as to the particular bases of the charges." Id. at 9 331.

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Here, the language in the indictment, much like the language in Wright, mirror the

11 statute, and the charge is relatively simple and straight-forward. Id. The defendant has been 12 provided pre-trial discovery, including police reports, defendants' interviews, and interviews of 13 individuals who were with the defendant at the time of the incident. The language of the 14 charging instrument, especially taken in conjunction with the discovery, is sufficiently definite 15 under the Oregon Constitution.

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In Wright the indictment charged Assault in the Fourth Degree as "The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and recklessly cause physical injury to Lisa M. Rosgo, and the defendant's conduct was witnessed by Shailei M. Wright, the minor child of Lisa Rosgo." Id. at 299 3

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In Wright the indictment charged Recklessly Endangering Another Person as "The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to Shailei M. Wright." Id. at 299.

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In Wright the indictment charged Menacing as "The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and intentionally attempt to place Lisa M. Rosgo in fear of imminent serious physical injury." Id. at 299-300.

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STATE'S RESPONSE TO DEFENDANT'S DEMURRER Department of Justice 2250 McGilchrist Street SE, Suite 100 Salem, OR 97302 (503) 378-6347 / Fax: (503) 373-1936

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Therefore, the State request that the Court deny Defendant's demurrer.

2 3 By: ELLEN ROSENBLUM Attorney General

4 5 6 DATED this 12th day of December, 2016.

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e

ta/L/cov'

Colin Benson, OSB #981831 Senior Assistant Attorney General and Special Deputy District Attorney for Harney County

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CERTIFICATE OF SERVICE

I hereby certify that I have made service of the foregoing STATE'S RESPONSE TO DEFENDAN'T DEMURRER for Harney County Circuit Court Case No. 16CR67881 on Derek Ashton, attorney for defendant, by emailing a true, exact and full copy and by service through Odyssey File and Serve thereof on December 12, 2016, to said attorney at his last known email address, as follows.

Derek Ashton Cosgrave Vergeer Kester LLP 888 SW 5th Ave. Suite 500 Portland, OR 97204 dashton@cosgravelaw.com

Colin Benson, OSB #981831 Sr. Assistant Attorney General and Harney County Special Deputy District Attorney colin.d.benson@doj.state.or.us

Page 1 — CERTIFICATE OF SERVICE CDB/vmp/7915626 Department of Justice 2250 McGilchrist St. SE, Suite 100 Salem, OR 97302 (503)378-6347