Odeademurrer

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12/1/2016 3:22:21 PM 16CR67881

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF HARNEY

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STATE OF OREGON,

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v.

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Case No. 16CR67881

Plaintiff,

DEFENDANT’S DEMURRER (Oral argument requested)

LAWRENCE P. O'DEA, Defendant.

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Defendant demurrers to the indictment because (1) the statute defendant is

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charged to have violated, ORS 166.160, is unconstitutionally vague; and (2) even if

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ORS 166.160 is not unconstitutionally vague, the indictment does not describe the

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nature of the crime alleged with sufficient particularity.

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A.

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ORS 166.160 is unconstitutionally vague1 Under the Oregon Constitution, the terms of a criminal statute must give “fair

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notice of the prohibited conduct.” State v. Plowman, 314 Or 157, 160-61 (1992). That

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is, the terms of the statute “must be sufficiently explicit to inform those who are subject

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to it of what conduct on their part will render them liable to its penalties,” State v.

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Graves, 299 Or 189, 195 (1985), and provide a “reasonable degree of certainty about

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what conduct falls within the statute’s prohibition.” Plowman, 314 Or at 160 (internal

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quotation marks omitted). A criminal statute must also “not be so vague as to allow a

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judge or jury unbridled discretion to decide what conduct to punish.” Id. at 161. A

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statute that fails in either of these respects “offends the principle against ex post facto

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“A defendant may challenge a criminal statute for vagueness * * * by means of a pretrial demurrer.” State v. Maxwell, 165 Or App 467, 473 (2000), rev den, 334 Or 632 (2002) (citing ORS 135.630(4)). 1

Page 1 - DEFENDANT’S DEMURRER 2713468 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019


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laws embodied in Article I, section 21, of the Oregon Constitution, and the principle

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against standardless and unequal application of criminal laws embodied in Article I,

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section 20, of the Oregon Constitution.” Id. Similarly, a statute violates the Due

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Process Clause of the United States Constitution if it “fails to give ordinary people fair

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notice of the conduct it punishes, or [is] so standardless that it invites arbitrary

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enforcement.” Johnson v. United States, 135 S Ct 2551, 2557 (2015).

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A statute gives fair notice and provides sufficient standards only if the statute

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describes the specific “conduct” or “act” it proscribes. State v. Hodges, 254 Or 21

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(1969), and United States v. L. Cohen Grocery, 255 US 81, 91 (1921), illustrate this

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point. In Hodges, the defendant was convicted of contributing to the delinquency of a

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minor in violation of former ORS 167.210, which prohibited “any act which manifestly

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tends to cause any child to become a delinquent child.” The Oregon Supreme Court

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held that the statute was unconstitutionally vague because the “looseness” in the

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statutory language encouraged selective prosecution and resulted in an improper

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“delegation of legislative power.” Hodges, 254 Or at 28.

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In L. Cohen Grocery, the defendant grocery store was charged with violating a

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law prohibiting grocers from charging an “unjust or unreasonable rate” for “necessaries.”

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The United States Supreme Court held that the statute was void for vagueness because

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it did not forbid a “specific or definite act.” L. Cohen Grocery, 255 US at 89. As a result,

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any attempt to enforce the statute was tantamount to enforcing “a statute which in terms

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merely penalized and punished all acts detrimental to the public interest when unjust

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and unreasonable in the estimation of the jury.” Id.; see also Johnson, 135 S Ct at

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2558, 2561 (discussing and citing to L. Cohen Grocery, with approval).

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In this case, the indictment charges defendant with violating ORS 166.160, which

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provides that “[a]ny person who, as a result of failure to use ordinary care under the

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circumstances, wounds any other person with a bullet or shot from any firearm, or with Page 2 - DEFENDANT’S DEMURRER 2713468 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019


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an arrow from any bow, commits a Class B misdemeanor.” Like the contributing-to-the-

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delinquency-of-a-minor statute in Hodges and the unreasonable-rate statute in L. Cohen

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Grocery, ORS 166.180 prohibits a certain result (the wounding of another) without

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forbidding any of specific or definite acts, which might lead to the unlawful result. The statute’s reference to “ordinary care under the circumstances” does not save

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it. As the Court of Appeals recognized in State v. Harris, 40 Or App 317, 319 (1979),

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the term “ordinary” without more is “too vague.” Moreover, punishing a person for failing

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to use “ordinary care” is tantamount to punishing all acts the jury estimates to be

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“unreasonable,” which, as the court explained in L. Cohen Grocery, is something the

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legislature cannot do.2 It follows that ORS 166.160 is unconstitutionally vague under

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Article I, sections 20 and 21, of the Oregon Constitution and under the Due Process

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Clause of the United States Constitution.

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B.

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The indictment itself is not sufficiently definite and certain Even if ORS 166.160 is not unconstitutionally vague, the court should grant the

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demurrer because the indictment itself does not describe with sufficient specificity the

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“act” or “conduct” defendant is being charged with. See ORS 135.630(2) (demurrer

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available when an indictment does not comply with ORS 132.550); ORS 132.550(7)

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(indictment must contain “statement of the acts constituting the offense”); Or Const, Art

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I, § 11 (accused has the right “to demand the nature and cause of the accusation

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against him”).

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An indictment should do three things: (1) describe the “nature of the crime” with “sufficient particularity to enable the defendant to make his defense”; (2) identify the

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State v. Wojahn, 204 Or 84 (1955), is not contrary. That case involved negligent vehicular homicide statutes – former ORS 161.010 and former ORS 163.090 – which statutorily defined the term “negligent” and described the prohibited conduct (i.e., driving a vehicle in a negligent manner). The negligent wounding statute, on the other hand, refers only to the result (i.e., wounding), without defining the phrase “ordinary care” or in any other way describing the forbidden act or conduct. Page 3 - DEFENDANT’S DEMURRER 2713468 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019


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offense sufficiently enough that the defendant can “avail himself of his conviction or

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acquittal” if he is ever prosecuted for the same cause; and (3) “inform the court of the

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facts charged,” so the court can determine if they are “sufficient to support a conviction.”

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State v. Fair, 326 Or 485, 489 (1998), quoting State v. Cohen, 289 Or 525, 529 (1980).

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The indictment in this case fails in the first and third respects. In the single-count indictment, the state alleges that defendant violated ORS 166.160 as follows: “The said defendant, on or about April 21, 2016, in Harney County, Oregon, did unlawfully and by failing to use ordinary care under the circumstances wound Robert Dempsey with a bullet from a firearm.” This language – which merely parrots the statutory language – does not identify what, in

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the state’s estimation, qualifies as “ordinary care.” Nor does it describe the way in

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which defendant allegedly failed to use ordinary care, or the “circumstances” that render

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the care something other than “ordinary.”

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It is true that an indictment “ordinarily is sufficient * * * to withstand a demurrer if it

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tracks the pertinent wording of the statute defining the crime.” State v. Molver, 233 Or

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App 239, 244, rev den, 348 Or 291 (2010). An exception applies, however, when the

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statutory language is imprecise and “discovery cannot, as a practical matter, cure the

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imprecision of the charging instrument,” given the nature of the crime. State v. Wright,

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167 Or App 297, 306, adh’d to as mod on recons, 169 Or App 78, rev den, 331 Or 334

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(2000).

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In State v. Sanders, 280 Or 685, 690 (1977), for example, the Supreme Court

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sustained a demurrer against an indictment for burglary that failed to allege which crime

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the defendant intended to commit when he unlawfully entered a building because, as

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the court explained, the defendant would probably not be able to discern from pretrial

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discovery what “criminal intent the state was going to attempt to prove.”

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Similarly, in State v. Cooper, 78 Or App 237 (1986), the Court of Appeals

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concluded that pretrial discovery could not cure the indictment’s material lack of Page 4 - DEFENDANT’S DEMURRER 2713468 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019


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specificity. In that case, the defendant was charged with promoting gambling in

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violation of ORS 167.122. The defendant demurred to the complaint, which alleged the

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crime in statutory language, because it did not allege the particular conduct giving rise

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to the charges. The trial court allowed the demurrer, and the Court of Appeals affirmed.

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Because the statute is open-ended, the court explained, “we are unable to say that this

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is a situation where discovery could remedy the deficiency of the accusatory

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instrument.” Cooper, 78 Or App at 241; see also State v. Kincaid, 78 Or App 23, 29-30

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(1986) (concluding that indictment for ORICO was deficient because it failed to describe

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the “incidents of theft which the state intended to prove” and concluding that the

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“unspecific indictment” could not “be saved by the availability of discovery”); Wright, 167

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Or App at 310-11 (explaining that the problem in Cooper was that the statute was too

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“open ended”). In this case, as in Sanders and Cooper, it is not sufficient to allege a violation of

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ORS 166.180 by reference to the statutory language because the statutory language is

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too open-ended. The indictment alleges that defendant failed to exercise “ordinary care

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under the circumstances,” without describing what, in the state’s estimation, qualifies as

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“ordinary care,” the way in which defendant allegedly failed to use “ordinary care,” or the

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“circumstances” that play into the state’s conclusion. No amount of pretrial discovery

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will alert defendant to these details. This court should therefore sustain the demurrer to

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the indictment, as alleged, even if it concludes that ORS 166.180 is not

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unconstitutionally vague.

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///

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///

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Conclusion

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The court should sustain the demurrer.

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DATED this 1st day of December, 2016.

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COSGRAVE VERGEER KESTER LLP

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s/ Derek J. Ashton Derek J. Ashton, OSB 871552 Julie A. Smith, OSB 983450 Telephone: 503-323-9000 Fax: (503) 323-9019 E-mail: dashton@cosgravelaw.com jsmith@cosgravelaw.com For Mr. O’Dea

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CERTIFICATE OF SERVICE

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I hereby certify that I served a true and correct copy of the foregoing DEFENDANT'S DEMURRER on the date indicated below by:

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mail with postage prepaid, deposited in the US mail at Portland, Oregon,

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hand delivery,

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facsimile transmission,

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overnight delivery,

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email,

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electronic filing notification.

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I further certify that said copy was placed in a sealed envelope delivered as

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indicated above and addressed to said attorney(s) at the address(es) listed below:

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John Tseng Colin Benson Oregon Department of Justice 2250 McGilchrist Street SE Suite 100 Salem, OR 97302 For Plaintiff

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DATED: December 1, 2016

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s/ Derek J. Ashton Derek J. Ashton Julie A. Smith

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Page 1 – CERTIFICATE OF SERVICE 2713468 Cosgrave Vergeer Kester LLP Attorneys 888 SW Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 323-9000 Facsimile: (503) 323-9019