State v. Blair

228 P.3d 564 (2010)

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Nature of the Case

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Facts

D broke into the victim's home, stole several marijuana plants and household items, and attempted to rape and sexually abuse the victim. The next day, the victim's son found her body on the floor next to her bed, with a bed sheet tied around one of her legs and also loosely tied to a bedpost. The cause of the victim's death was chronic obstructive pulmonary disease (COPD) due to emphysema. The victim suffered from acute COPD, which was exacerbated critically by D's burglary, attempted rape and attempted sexual abuse. D demurred to the felony murder count in the indictment because the felony murder count did not allege that D had caused the death of the victim with a culpable mental state and therefore did not allege facts 'constituting an offense.' D claims that P was required to allege in the indictment one of the mental states described in ORS 163.005(1): that is, it was required to allege that defendant had killed the victim 'intentionally, knowingly, recklessly or with criminal negligence.' The trial court overruled the demurrer. D submitted proposed jury instructions that would have required the state to prove beyond a reasonable doubt that defendant had caused the victim's death 'knowingly, recklessly, or with criminal negligence' as one of the elements of felony murder. The trial court refused. D was convicted and appealed. The Court of Appeals affirmed. D appealed.