489
Argued and submitted January 26; convictions on Counts 1 and 2 reversed,
otherwise affirmed March 8, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER LYNN VANORDEN,
Defendant-Appellant.
Lane County Circuit Court
21CR11465; A176273
526 P3d 824
Defendant, who was convicted of two counts of aggravated harassment
(Counts 1 and 2) and one count of attempted aggravated harassment (Count 3),
appeals a judgment of conviction after a jury trial, assigning error to the trial
court’s denial of his motion for a judgment of acquittal on the two counts of aggravated harassment. The charges arose when defendant, who was under arrest,
spit in the direction of a police officer who was coming toward him and the breeze
blew the spittle to two police officers who were standing behind him. The state
tried the aggravated harassment charges on a theory of transferred intent, and
the trial court instructed the jury on transferred intent. Defendant contends that
the trial court erred in giving the instruction and in denying his motion for a
judgment of acquittal because the theory of transferred intent was not applicable
to the offense of aggravated harassment. Held: Under ORS 166.070, defining the
offense of aggravated harassment, the officer with whom the saliva made contact
must be the same officer (or officers) to whom the person intentionally propelled
the saliva. Thus, the theory of transferred intent is not applicable. The trial court
therefore erred in denying defendant’s motion for a judgment of acquittal.
Convictions on Counts 1 and 2 reversed; otherwise affirmed.
Amit K. Kapoor, Judge.
David O. Ferry, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
490 State v. Vanorden
TOOKEY, P. J.
Convictions on Counts 1 and 2 reversed; otherwise
affirmed.
Cite as 324 Or App 489 (2023) 491
TOOKEY, P. J.
Defendant appeals a judgment of conviction after
a jury trial of two counts of aggravated harassment, ORS
166.070 (Counts 1 and 2), and one count of attempted aggravated harassment (Count 3), arising out of his having spit
in the direction of a police officer while he was under arrest.
He contends that the trial court erred in denying his motion
for a judgment of acquittal on Counts 1 and 2. For the reasons explained below we conclude that the trial court erred
in denying defendant’s motion and therefore reverse defendant’s convictions on Counts 1 and 2.
Defendant, who was under arrest, was being
restrained from behind by Officer Timms and patted down
from behind by Officer Harris. As Officer Hargrove approached
defendant from the front, defendant spat toward him. The
spittle did not reach Hargrove, but a breeze carried it into
the faces of Timms and Harris, who were still positioned
behind defendant.
ORS 166.070 provides:
“(1) A person commits the crime of aggravated harassment if the person, knowing that the other person is a:
“…
“(c) Public safety officer, intentionally propels saliva at
the public safety officer, and the saliva comes into physical contact with the public safety officer, while the public
safety officer is acting in the course of official duty or as a
result of the public safety officer’s official duties.”
Arising out of his spitting conduct, defendant was
charged with attempted aggravated harassment in spitting
toward Hargrove (Count 3), and aggravated harassment
with respect to the spittle that reached the faces of Timms
and Harris (Counts 1 and 2).
Defendant sought a judgment of acquittal with
respect to Counts 1 and 2, contending that the act of spitting
in the direction of the public safety officer must be intentional and that the state had failed to show that defendant
had intended to spit at Timms and Harris. It is undisputed
that the state did not attempt to establish that defendant
492 State v. Vanorden
intended to spit at Timms or Harris. The state’s theory at
trial was that, by virtue of a theory of transferred intent,
criminal liability would attach with respect to Counts 1
and 2 (Timms and Harris) if defendant intended to spit
at Hargrove. The trial court denied defendant’s motion for
a judgment of acquittal and instructed the jury that “the
doctrine of ‘transferred intent’ applies to this charge.” The
court instructed:
“Transferred intent. A person may be guilty of aggravated
harassment when, with intent to propel saliva at a public safety officer and with the intent to cause the saliva to
contact the public safety officer, causes saliva to come into
contact with such public safety officer acting in the course
of official duty or with another public safety officer acting in
the course of official duty.”
(Emphasis added.) The court further instructed the jury
that it could convict defendant if it found that defendant
“intentionally propelled saliva at [Hargrove] with the intent
to cause the saliva to contact [Hargrove],” and “the saliva
came into contact with each of the other two officers.”
The jury reached guilty verdicts on all three charges.
In his first and second assignments, defendant assigns
error to the trial court’s denial of his motion for judgment
of acquittal on Counts 1 and 2. In defendant’s third assignment, defendant contends that the trial court erred in giving
the “transferred intent” jury instruction. All three assignments depend on whether the “transferred intent” theory
of liability is applicable. We agree with defendant that it is
not and that the trial court therefore erred in giving the
“transferred intent” instruction and also erred in denying
defendant’s motions for judgment of acquittal.
The doctrine of transferred intent is a common-law
doctrine that has been applied in murder cases and that
the Supreme Court described in State v. Johnson, 7 Or 210
(1879), as an “elementary principle of criminal law.” In State
v. Wesley,
254 Or App 697, 703,
295 P3d 1147, rev den,
354
Or 62 (2013), we explained:
“The common-law doctrine of transferred intent is a
bedrock principle of English common law: ‘[I]f one shoots
at A and misses him, but kills B, this is murder; because
Cite as 324 Or App 489 (2023) 493
of the previous felonious intent, which the law transfers
from one to the other.’ William Blackstone, 4 Commentaries
on the Laws of England 201 (1769). The doctrine has been
described more colloquially in some American jurisdictions
as ‘the intention follows the bullet.’ ”
(Brackets in original; citation omitted.) As defendant correctly notes, the doctrine of transferred intent is not
described in the statutes or in the commentaries to the
Oregon criminal code, and the Supreme Court has never
applied it outside the context of murder.
The state responds that the theory of “transferred
intent” applies to the charged offense of aggravated harassment. The state bases that argument on the legislative history, which it argues shows an intention in ORS 166.070 to
criminalize the conduct of a person who intentionally spits
at a person knowing that the person is a public safety officer,
and the saliva makes contact with a person who is a public
safety officer. The state asserts that the legislative history
shows that the legislature did not intend for liability under
ORS 166.070 to depend on proof that the defendant had
the intention to strike the particular officer with whom the
saliva made contact; rather, the state contends, “if a defendant intentionally spits ‘at’ any officer and makes contact
with any other officer who is in the class described in the
statute, he has committed aggravated harassment.” Thus,
the state contends, the legislature intended that something
similar to “transferred intent” should apply to that particular harassment offense, and that “the trial court correctly
interpreted ORS 166.070(1)(c) to prohibit the proscribed
conduct—spitting at a person known to be a public-safety
Officer—even if the result of that conduct is that the saliva
makes contact with a different officer.”
The difficulty with the state’s argument is that it
is not supported by the text of the statute, which is paramount. State v. Gaines, 346 Or 160, 177-78,
206 P3d 1042
(2009); State v. Prophet,
318 Or App 330, 345,
507 P3d 735,
rev den,
370 Or 472 (2022). ORS 166.070(1)(c) provides that
the offense is committed if the person “intentionally propels
saliva at the public safety officer, and the saliva comes into
physical contact with the public safety officer[.]” (Emphases
494 State v. Vanorden
added.) The emphasized text shows that the legislature
intended that the officer with whom the saliva made contact must be the same officer (or officers) to whom the person intentionally propelled the saliva. Thus, unlike in the
context of murder, where “the intention follows the bullet,”
Wesley,
254 Or App at 703, under ORS 166.070(1)(c), the
intention does not follow the spittle.
Although we agree with the state’s argument that
the legislative history shows that the legislature intended
to broadly protect certain categories of persons from having
saliva propelled at them, there is nothing in that legislative history that shows that a principle akin to “transferred
intent” should apply or obviate the need for the state to show
the required mens rea for each element of the offense. For
the offense of aggravated harassment, ORS 166.070(1)(c)
requires that the person intentionally propel saliva at the
police officer with whom the saliva makes physical contact.
We conclude, therefore, that the trial court erred in giving
the “transferred intent” instruction.
The state asserts that, despite the erroneous legal
theory at trial, the convictions must be affirmed, because
there is evidence that would support a finding that defendant intentionally spit at Timms and Harris. We reject that
argument. We agree with defendant that there is no evidence that defendant was directing his spittle at all three
officers. Additionally, the state did not attempt to establish
such intent; rather, the state’s argument at trial was that
defendant was aiming directly at Hargrove and that the
jury should convict defendant of Counts 1 and 2 on a theory akin to transferred intent. As the court said in State v.
Burgess, 352 Or 499, 504,
287 P3d 1093 (2012), it would be
fundamentally unfair to defendant to sustain his conviction
on a legal theory raised for the first time on appeal.
Accordingly, we conclude that the trial court erred
in denying defendant’s motion for a judgment of acquittal on
Counts 1 and 2, and we reverse the convictions.
Convictions on Counts 1 and 2 reversed; otherwise
affirmed.
